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from the floor debate on the Intelligence Authorization Act for Fiscal Year 1999
Congressional Record: October 8, 1998 (Senate)
Page S11902-S11907

                     Government Secrecy Reform Act

  Mr. MOYNIHAN. Mr. President, today the Senate Select Committee on 
Intelligence brings to the floor the conference report on the 
intelligence authorization bill. While I commend the Committee for 
bringing this legislation to the floor, I would like to take this 
opportunity to discuss a bill that the committee did not act on this 
year: the government Secrecy Reform Act (S. 712).
  This legislation stems from the unanimous recommendation of the 
Commission on Protecting and Reducing Government Secrecy. Senator Jesse 
Helms and I, and Representatives Larry Combest and Lee Hamilton (all 
Commissioners), introduced the Government Secrecy Act in May 1997. The 
bill sets out a new legislative framework to govern our secrecy system. 
Our core objective is to ensure that secrecy proceed according to law. 
The proposed statute can help ensure that the present regulatory regime 
will not simply continue to flourish without any restraint and without 
meaningful oversight and accountability.
  A trenchant example of the need for reform in this area came last 
week by way of the Assassination Records Review Board. The Board has 
now completed its congressionally mandated review and release of 
documents related to President Kennedy's assassination. It has 
assembled at the National Archives a thorough collection of documents 
and evidence that was previously secret and scattered about the 
government. The Review Board found that while the public continues to 
search for answers over the past thirty-five years:

       [T]he official record on the assassination of President 
     Kennedy remained shrouded in secrecy and mystery.
       The suspicions created by government secrecy eroded 
     confidence in the truthfulness of federal agencies in general 
     and damaged their credibility.

  Credibility eroded needlessly, as most of the documents which the 
Board reviewed were declassified. And at considerable cost, as it 
represents the best-known and most notorious conspiracy theory now 
extant: the unwillingness on the part of the vast majority of the 
American public to accept that President Kennedy was assassinated in 
1963 by Lee Harvey Oswald, acting alone.
  Conspiracy theories have been with us since the birth of the 
Republic. This one seems to have only grown. A poll taken in 1966, two 
years after release of the Warren Commission report concluding that 
Oswald had acted alone, found that 36 percent of respondents accepted 
this finding, while 50 percent believed others had been involved in a 
conspiracy to kill the President. by 1978 only 18 percent responded 
that they believed the assassination had been the act of one man; fully 
75 percent believed there had been a broader plot. The numbers have 
remained relatively steady since; a 1993 poll also found that three-
quarters of those surveyed believed (consistent with the film JFK, 
released that year) that there had been a conspiracy.
  It so happens that I was in the White House at the hour of the 
President's death (I was an assistant labor secretary at the time). I 
feared what would become of him if he were not protected, and I pleaded 
that we must get custody of Oswald. But no one seemed to be able to 
hear. Presently Oswald was killed, significantly complicating matters.
  I did not think there had been a conspiracy to kill the president, 
but I was convinced that the American people would sooner or later come 
to believe that there had been one unless we investigated the event 
with exactly that presumption in mind. The Warren Commission report and 
the other subsequent investigations, with their nearly universal 
reliance on secrecy, did not dispel any such fantasies.
  In conducting this document-by-document review of classified 
information, the Board reports that ``the federal government needlessly 
and wastefully classified and then withheld from public access 
countless important records that did not require such treatment.'' How 
to explain this?
  Beginning with the concept that secrecy should be understood as a 
form of government regulation. This was an insight of the Commission on 
Protecting and Reducing Government Secrecy, which I chaired, building 
on the work of the great German sociologist Max Weber, who wrote some 
eight decades ago:

       The pure interest of the bureaucracy in power, however, is 
     efficacious far beyond those areas where purely functional 
     interests make for secrecy. The concept of the `official 
     secret' is the specific invention of bureaucracy, and nothing 
     is so fantastically defended by the bureaucracy as this 
     attitude, which cannot be substantially defended beyond 
     these specifically qualified areas.

  What we traditionally think of in this country as regulation concerns 
how citizens are to behave. Whereas public regulation involves what the 
citizen may do, secrecy concerns what that citizen may know. And the 
citizen does not know what may not be known. As our Commission stated: 
``Americans are familiar with the tendency to overregulate in other 
areas. What is different with secrecy is that the public cannot know 
the extent or the content of the regulation.''
  Thus, secrecy is the ultimate mode of regulation; the citizen does 
not even know that he or she is being regulated! It is a parallel 
regulatory regime with a far greater potential for damage if it 
malfunctions. In our democracy, where the free exchange of ideas is so 
essential, it can be suffocating.
  And so the Commission recommended that legislation must be enacted. 
The Majority and Minority Leaders have been persuaded on the necessity 
of such legislation and are cosponsors of the bill. On March 3, 1998, 
we engaged in a colleague on the bill with the two Leaders, along with 
myself, Senators Helms, Thompson, Glenn, Shelby, and Kerrey. At that 
time we all agreed on the importance of considering the bill in this 
session. The Majority Leader stated, ``I hope that this process of 
committee consideration can be completed this spring and that we can 
expeditiously schedule floor time for legislation addressing this 
important issue. The Senate Governmental Affairs Committee, chaired by 
Senator Thompson, considered the bill and approved it unanimously on 
July 22. In its report to accompany the bill, the Committee had this 
important insight:

       Our liberties depend on the balanced structure created by 
     James Madison and the other framers of the Constitution. The 
     national security information system has not had a clear 
     legislative foundation, but . . . has been developed through 
     a series of executive orders. It is time to bring this 
     executive monopoly over the issue to an end, and to begin to 
     engage in the same sort of dialogue between Congress and the 
     executive that characterizes the development of government 
     policy in all other means.

  We are not proposing putting an end to government secrecy. Far from 
it. It is at times terribly necessary and used for the most legitimate 
reasons--ranging from military operations to diplomatic endeavors. 
Indeed, much of our Commission's report is devoted to explaining the 
varied circumstances in which secrecy is most essential. Yet, the 
bureaucratic attachment to secrecy has become so warped that, in the 
words of Kermit Hall, a member of the Assassination Records Review 
Board, it has transformed into ``a deeply ingrained commitment to 
secrecy as a form of patriotism.''
  Secrecy need not remain the only norm--particularly when one 
considers that the current badly overextended system frequently fails 
to protect its most important secrets adequately. We must develop what 
might be termed a competing ``culture of openness''--fully consistent 
with our interests in protecting national security, but in which power 
and authority are no longer derived primarily from one's ability to 
withhold information from others in government and the public at large.
  Unfortunately, the Intelligence Committee did not take up this bill. 
Part of the delay was a result of the tardy administration response to 
the changes made by the Governmental Affairs Committee. A formal letter 
on the bill was not delivered until September 17. In addition, this 
letter sought the removal of the ``balancing test'' contained in the 
bill, a change that the administration had not previously sought.
  Nevertheless, we were on the threshold of reaching agreement on the 
bill. The Intelligence Committee has been reviewing the bill 
informally, and I hope the Chairman will agree that the difference 
between us are not that great, and that we can pass the bill early in 
the 106th Congress.

[[Page S11906]]

  I ask unanimous consent that the letter expressing the administration 
views on the bill be printed in the Record at this point, along with 
comments on the letter made in a joint letter by the National Security 
Archives and the Federation of American Scientists, and a letter by 
Representative Lee Hamilton.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                    Congress of the United States,

                                     House of Representatives,

                                  Washington, DC, October 2, 1998.
     Mr. Steven Aftergood,
     Federation of American Scientists
     307 Massachusetts, Ave.,NE., 
     Washington, DC.
       Dear Mr. Aftergood, Thank you for your letter of September 
     24, 1998, concerning National Security Adviser Sandy Berger's 
     letter to me with the Administration's views on S. 712, The 
     Government Secrecy Reform Act of 1998.
       I agree with you. I think it is a serious mistake to accept 
     the elimination of the public-interest balancing test as the 
     price for Administration support of the bill. To agree with 
     the Administration's proposed changes would amount to gutting 
     the bill. It would amount to a codification of existing 
     procedures in the Executive branch, and a rejection of the 
     work of the Secrecy Commission. I want to work with the 
     Administration in support of secrecy reform, but I cannot 
     accept a revised bill that does not change the unacceptable 
     status quo on classification and declassification.
       As I read it, secrecy reform is dead in the current 
     Congress. In the absence of Administration support, moving 
     the bill forward just will not be possible.
       On a personal note, I want to say that the efforts of you 
     and your organization have been very helpful to me and to 
     advocates of secrecy reform, and I wish you every success in 
     the 106th Congress.
       With best regards,
                                                  Lee H. Hamilton,
     				 	 Ranking Democratic Member.

                                               September 24, 1998.
     Re S. 712, the Government Secrecy Reform Act of 1998

     Hon. Daniel Patrick Moynihan,
     United States Senate, Washington, DC.
       Dear Senator Moynihan: As three public-interest 
     organizations that have collectively spent more than 50 years 
     battling excessive government secrecy imposed in the name of 
     national security, we write to applaud S. 712, the Government 
     Secrecy Reform Act of 1998, as a truly important and 
     unprecedented step towards reforming the Cold War secrecy 
       The bill includes the critical ingredient for any real 
     reform, namely the public-interest balancing test and 
     judicial review under the Freedom of Information Act applying 
     that test. The public-interest balancing test--whereby 
     classification standards must incorporate a weighing of the 
     public interest in knowing the information against the harm 
     to the national security from disclosure--was one of the key 
     recommendations of the Commission on Protecting and Reducing 
     Government Secrecy in 1997. And the experience of the past 20 
     years confirms that Congress was correct in 1974, when it 
     recognized that an essential element for an effective Freedom 
     of Information Act is judicial review of whether 
     classification standards are being properly applied when 
     government agencies refuse to release information.
       For these reasons, we are deeply disappointed that the 
     Administration objects to the bill's inclusion of the public-
     interest balancing test for declassification and the 
     concomitant amendment to the Freedom of Information Act. 
     (Letter from Samuel R. Berger to Lee Hamilton, September 17, 
     1998; secs 2(c) and (f) in S. 712 as reported out of the 
     Senate Committee on Governmental Affairs.) The 
     Administration's demand to eliminate from the bill the 
     balancing test and its enforcement under the FOIA threatens 
     to eviscerate the bill and to gut any real reform. If the 
     bill were to be passed without these provisions, we fear that 
     secrecy reform would suffer a grievous setback. The historic 
     opportunity carved out by the Commission to advance reform 
     beyond the status quo will have been missed, and instead the 
     Congress risks codifying a Cold War understanding of national 
     security secrecy that ill serves democratic principles.
       While we understand that the Administration's objections 
     may make it difficult to pass the bill as reported out of 
     Committee in this session of Congress, we urge you to insist 
     on keeping these provisions in the bill.
       We believe that the administration's objections can be 
     overridden, if not in this Congress, then in the next one. 
     The objections are based on a dangerous and erroneous view 
     that the President has absolute and unreviewable authority 
     over national security information. This view of exclusive 
     authority challenges not only the judiciary's constitutional 
     role in enforcing the law but also Congress' shared 
     responsibility for national security information. It is 
     inconsistent with the Supreme Court precedent, (See, EPA v. 
     Mink, 410 U.S. 73 (1973) and contradicts decades of 
     congressional legislating. (Most recently, the Nazi War 
     Crimes Disclosure Act, but also the JFK Assassinations 
     Records Collection Act, the Foreign Relations Authorization 
     Act of 1992 (concerning the Department of State's Foreign 
     Relations of the United States series), and the Intelligence 
     Oversight Act, among others.) Indeed, this same argument was 
     rejected by the Congress in 1974 when it overrode President 
     Ford's veto of the amendment to the Freedom of Information 
     Act providing that federal courts should determine whether 
     information is properly classified. In now objection to 
     judicial review, the administration is seeking to repeal the 
     most important element of the FOIA.
       Moreover, the oft-cited specter of ``judicial intrusion on 
     the President's constitutional authority'' is not grounded in 
     any real historical experience. The bill would authorize 
     judicial review to determine whether mid-level agency 
     officials have correctly applied declassification standards. 
     In reality, no federal court is ever going to release 
     national security information over the objection of the 
     President or even the head of an agency, and certainly no 
     appeals court would uphold any such decision. At the same 
     time, experience confirms that it is only the availability of 
     judicial review that ensures that agencies do, in fact, live 
     up to their legal obligations under the FOIA. For example, 
     only when the CIA was forced to defend its withholding of the 
     aggregate intelligence budget in 1997 in court did the agency 
     finally release the information.
       As you have written, ``[s]ecrecry can be a source of 
     dangerous ignorance. . . . It is time. . . . to assert 
     certain American fundamentals, foremost of which is the right 
     to know what government is doing, and the corresponding 
     ability to judge its performance.'' These key provisions of 
     the bill are essential to allow the public to do just that--
     to participate effectively in the political process and to 
     engage in democratic decision making on fundamental issues of 
     foreign policy and national security.
       Thank you for considering our views.
           Sincerely yours,
                                                      Kate Martin,
                             Center for National Security Studies.
                                                 Steven Aftergood,
                                Federation of American Scientists.
                                                   Thomas Blanton,
     					National Security Archive.

                                              The White House,

                                   Washington, September 17, 1998.
     Hon. Lee Hamilton,
     Ranking Democratic Member,
     Committee on International Relations,
     House of Representatives,
     Washington, DC.
       Dear Lee: Thank you for your letter inquiring about the 
     Administration's views on S. 712, the Government Secrecy 
     Reform Act of 1998, which was reported out of the Senate 
     Committee on Governmental Affairs in July. I wrote to 
     Chairman Thompson on May 11, 1998, conveying Administration 
     views on this legislation; a copy of that letter is enclosed.
       The amended version of S. 712 incorporates most of the 
     Administration's recommendations regarding the Office of 
     National Classification and Declassification Oversight 
     (NCDO); the use of classification and declassification 
     guidance; and the need to ensure that declassification 
     decisions are made only by the originating agency. The 
     Committee also clearly tried to address our concerns about 
     new rights of judicial review, but further clarification on 
     this vital point is necessary.
       The additional improvements in S. 712 that we believe are 
     essential are discussed below. Based on recent discussions 
     with staff of Chairman Thompson. Senator Moynihan, and the 
     Senate Select Committee on Intelligence, I am hopeful that 
     needed changes can be made that would enable the 
     Administration to endorse this legislation. For each of the 
     key issues, our suggestions are included in a line-in/line-
     out version of S. 712 enclosed with this letter.
       1. The bill must be modified to make it unambiguously clear 
     that this legislation confers no new rights of judicial 
     review. While the text of Section 6 attempts to limit 
     judicial review, the interplay of other sections would create 
     new substantive and procedural rights. Section 2(c), which 
     requires a national security/public interest balancing test 
     before classifying or declassifying any information, also 
     sets forth specific standards for defining harm to national 
     security and the public interest. Section 2(f), which amends 
     the FOIA, clearly would make the application of a balancing 
     test subject to judicial review under FOIA. Indeed, the 
     Government Affairs Committee Report states that ``the 
     legislation necessarily imports into its new secrecy regime 
     the judicial review available under the Freedom of 
     Information Act (FOIA). For example, proper application of 
     the public interest/national security balancing test would be 
     within the scope of judicial review for Freedom of 
     Information Act requests for classified information. * * *'' 
     Since the bill was reported, we have considered several 
     approaches to revising the balancing test language or adding 
     additional language to limit judicial review. None of these 
     approaches completely addresses the concern that legislating 
     a mandatory balancing test could encourage judicial intrusion 
     on the President's constitutional authority and transform the 
     nature of judicial review of classification and 
     declassification decisions in FOIA litigation. We have 
     concluded that the balancing test must be eliminated in order 
     to protect essential Presidential authority and to ensure 
     that the legislation introduces no new rights of judicial 
       2. Section 2(d) would forbid the classification of any 
     information for more than 10

[[Page S11907]]

     years, without the concurrence of the head of the NCDO and a 
     written certification to the President. Since over half of 
     all original classification decisions made under E.O. 12958 
     are properly designated for more than 10 years (down from 95% 
     under the previous Executive Order), implementation of this 
     requirement would be unworkable without the employment of a 
     huge new bureaucracy at the NCDO and hundreds of new 
     certification writers at the agencies. The standards for 
     duration of classification must be rewritten to make them 
     compatible with the E.O. 12958 standards.
       3. Section 4 establishes a Classification and 
     Declassification Review Board, consisting exclusively of non-
     Government employees, to decide appeals from the public or 
     agencies of decisions made by agencies or the NCDO. Agencies 
     may appeal decisions of this Board only to the President. 
     Given the new oversight authority assigned to the Director of 
     the NCDO, and the existing rights of FOIA or Executive Order 
     appeal, this new entity is redundant and unnecessary, and it 
     is likely to be quite costly to operate. At a minimum, the 
     legislation must be amended to permit the President to 
     appoint Review Board members of his choosing, including 
     current Government employees.
       4. S. 712 locates the NCDO within the EOP, which is highly 
     problematic given the traditional constraints on the budget 
     and staffing levels of the EOP. Therefore, we believe the 
     best organizational placement for the NCDO is the National 
     Archives and Records Administration, which has a strong 
     institutional commitment to declassifying public records as 
     expeditiously as possible consistent with protecting national 
     security interests. That said, we also would recommend the 
     addition of language that would codify an ongoing NSC role in 
     providing policy guidance to the NCDO and would enhance the 
     prospects of adequate funding for the NCDO. With a continued 
     NSC imprimatur and adequate assured funding, organizational 
     placement outside the EOP would be a much less difficult 
       5. Section 2(c)(4) requiring detailed written 
     justifications for all classification decisions is the kind 
     of administrative detail that should be left to the 
     discretion of the executive branch. As drafted, this 
     provision would increase paperwork and cost, without any 
     assurance of improving classification decisions or the 
     management of the program. However, we agree that it would 
     make sense to require detailed justifications whenever 
     classification decisions are incorporated into an agency's 
     classification guide.
       6. Section 3(d)(7) should be modified to limit NCDO access 
     to the most sensitive records associated with a special 
     access program. Limiting access to such records is consistent 
     with E.O. 12958 but will not undermine the NCDO's ability to 
     oversee special access programs.
       I appreciate your continuing leadership on this matter. By 
     working together on the difficult remaining issues, I think 
     we have a chance to establish a statutory framework for the 
     classification and declassification program that enhances the 
     President's authority to manage the program effectively.

                                             Samuel R. Berger,

                                    Assistant to the President for
                                        National Security Affairs.

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