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Congressional Record: May 7, 1997 (Senate)
Page S4106-S4115


      By Mr. MOYNIHAN (for himself and Mr. Helms):

  S. 712. A bill to provide for a system to classify information in the 
interests of national security and a system to declassify such 
information; to the Committee on Governmental Affairs.

                   THE GOVERNMENT SECRECY ACT OF 1997

  Mr. MOYNIHAN. Mr. President, I am pleased to join with my colleague 
from North Carolina, Senator Helms, in introducing the Government 
Secrecy Act of 1997. Congressmen Larry Combest of Texas and Lee 
Hamilton of Indiana are introducing companion legislation in the House
of Representatives this afternoon. The four of us, along with eight 
other distinguished individuals, served for the past 2 years on the 
Commission on Protecting and Reducing Government Secrecy.
  Earlier today, the four of us testified together at a hearing of the 
Committee on Governmental Affairs called by Chairman Thompson to review 
the Commission's report, issued in March. The legislation that we 
introduce today is intended to implement one of the core 
recommendations of that Commission: The need for a statute establishing 
the principles to govern the classification and declassification of 
information. The remarks that follow track my testimony before the 
Governmental Affairs Committee this morning.
  We begin by defining our subject. "Secrecy is a form of government 
regulation." It can be understood in terms of a now considerable 
literature concerning how organizations function. Begin with the German 
scholar Max Weber, writing eight decades ago in his chapter 
"Bureaucracy" in "Wirtschaft und Gesellschaft" (Economy and 

       Every bureaucracy seeks to increase the superiority of the 
     professionally informed by keeping their knowledge and 
     intentions secret. Bureaucratic administration always tends 
     to be an administration of "secret sessions"; in so far as 
     it can, it hides its knowledge and action from criticism. 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 fanatically defended by the bureaucracy as this 
     attitude, which cannot be substantially defended beyond these 
     specifically qualified areas.

  Normal regulation concerns how citizens are to behave. As the 
administrative state developed in the United States, beginning with the 
Progressive Era at the turn of the century and expanding greatly under 
the New Deal, legal scholars began to ask just what these new rules 
were. Were they laws? If not, then what? In 1938, Roscoe Pound, 
chairman of the American Bar Association's Special Committee on 
Administrative Law and former Dean of the Harvard Law School, attacked 
those "who would turn the administration of justice over to 
administrative absolutism . . . a Marxian idea," and inveighed against 
those "progressives, liberals, or radicals who desire to invest the 
National Government with totalitarian powers in the teeth of 
constitutional democracy . . ."
  We managed to get a handle on that system, in no small measure 
through the efforts of Erwin Griswold, also a dean of the Harvard Law 
School, and others who decried the fact that administrative regulations 
equivalent to law had become increasingly important to everyday life 
and yet were not available to the public. One year after Professor 
Griswold published a seminal article calling for the publication of 
such rules and regulations, Congress enacted the Federal Register Act 
of 1935. Eleven years later, in 1946, working from the recommendations 
made in 1941 by the Attorney General's Committee on Administrative 
Procedure, chaired by Dean Acheson, Congress enacted the Administrative 
Procedure Act.
  Thus, today our system of public regulation is public indeed. 
Regulations are both widely accessible and subject to the APA's set of 
procedural requirements--bringing a degree of order and accountability 
to this regime.
  Secrecy, by contrast, concerns what citizens may know, but the 
citizen does not know what may not be known. Our Commission states:

       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 

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 
  Flowing from this understanding of secrecy as regulation is the 
recognition that, to paraphrase Justice Potter Stewart's opinion in the 
Pentagon Papers case, when everything is secret, nothing is secret. We 

       The best way to ensure that secrecy is respected, and that 
     the most important secrets remain secret, is for secrecy 
     to be returned to its limited but necessary role. Secrets 
     can be protected more effectively if secrecy is reduced 

  It is time to reexamine the foundations of that secrecy system. The 
Information Security Oversight Office report to Congress last week 
estimated the direct costs of secrecy at $5.2 billion in 1996 alone. 
The same Office reports that in 1995 we had 21,871 original new top 
secret designations and another 374,244 derivative top secret 
designations. Meaning that, in a single year, roughly 400,000 new 
secrets were created at the Top Secret level alone--the disclosure of 
any one of which would cause exceptionally grave damage to the national 
  It is also time to examine the appropriateness of security 

[[Page S4111]]

put in place during an earlier age, when the perceived threats were so 
different from those of today. In 1957, the only previous commission 
established by the Congress to examine the secrecy system--the 
Commission on Government Security--issued a report that, for any number 
of reasons--in particular the fact that its core recommendation that 
amounted to prior restraint of the press--did nothing to change the 
prevailing mode. Although the Commission did understand classification 
as a cost; its report ``stresses the dangers to national security that 
arise out of overclassification of information which retards scientific 
and technological progress, and thus tend to deprive the country of the 
lead time that results from the free exchange of ideas and 
  When the Commission on Government Security presented its report to 
President Eisenhower and the Congress, we still were consumed with 
concerns about a Federal Government infiltrated by ideological enemies 
of the United States. Today, the public and its representatives have 
few such concerns; indeed, today it is the U.S. Government that 
increasingly is the object of what Edward Shils in 1956, in ``The 
Torment of secrecy," termed the ``phantasies of apocalyptic 
  We are not proposing putting an end to secrecy. It is at times 
terribly necessary and used for the most legitimate reasons. But 
secrecy need not remain the only norm: We must develop a competing 
culture of openness, fully consistent with our interests in protecting 
national security, but in which power is no longer derived primarily 
from one's ability to withhold information.
  I am struck in this regard by a most remarkable letter that I 
received on March 25 from George F. Kennan, professor emeritus at the 
Institute for Advanced Study in Princeton, NJ, in response to our 
Commission report. As lucid and thoughtful as ever at age 93, Professor 
Kennan builds a compelling case for the proposition that much of our 
secrecy system arose out of our efforts to penetrate the obsessively 
secretive Soviet Communist regime of the Stalin era. And that the 
system we put in place remains largely intact today, even as that 
adversary has disappeared. Professor Kennan writes:

       It is my conviction, based on some 70 years of experience, 
     first as a government official and then in the past 45 years 
     as an historian, that the need by our government for secret 
     intelligence about affairs elsewhere in the world has been 
     vastly over-rated. I would say that something upwards of 95% 
     of what we need to know about foreign countries could be very 
     well obtained by the careful and competent study of perfectly 
     legitimate sources of information open and available to us in 
     the rich library and archival holdings of this country.

  I ask unanimous that the full text of Professor Kennan's letter be 
inserted in the Record.
  I should note further that Professor Kennan's conclusion about the 
share of information available from open sources also has been reached 
by other notable observers of the secrecy system--the estimable George 
P. Shultz among them.
  Developing a culture of openness within the Federal Government 
requires that secrecy be defined in statute. A statute will not put an 
end to overclassification and needless classification, but it will help 
by ensuring that the present regulatory regime cannot simply continue 
to flourish without any restraint. Classification should proceed 
according to law; classifiers should know that they are acting lawfully 
and properly. We need to balance the possibility of harm to national 
security against the public's right to know what the Government is 
doing, or not doing. We should establish by statute that secrecy 
belongs in the realm of national security and must serve that interest 
alone. It should not be employed as a badge of office or a status 
  Thus we propose this statute, the Government secrecy Act of 1997. As 
noted, Representatives Combest and Hamilton are cosponsoring a 
companion measure in the House of Representatives. This legislation--
defining the principles and standards to govern classification and 
declassification, and establishing within an existing agency a National 
Declassification Center to coordinate responsibility for declassifying 
historical documents--is drawn directly from the Commission's 
recommendation for such a statute, as set out in the summary and in 
chapter I of our report.
  I look forward to reviewing the legislation, as well as the other 
findings and recommendations of the Commission, with Members of this 
body, as well as our colleagues in the House of Representatives, 
executive branch officials, and interested persons outside of 
Government, in the weeks ahead.
  I send the bill to the desk and ask unanimous consent that it be 
printed in the Record and be referred to the appropriate committee.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 712

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,


       This Act may be cited as the "Government Secrecy Act of 

     SEC. 2. PURPOSE.

       It is the purpose of this Act to promote the effective 
     protection of classified information and the disclosure of 
     information where there is not a well-founded basis for 
     protection or where the costs of maintaining a secret 
     outweigh the benefits.

     SEC. 3. FINDINGS.

       The Congress makes the following findings:
       (1) The system for classifying and declassifying national 
     security information has been based in regulation, not in 
     statute, and has been governed by six successive Executive 
     orders since 1951.
       (2) The Commission on Protecting and Reducing Government 
     secrecy, established under Public Law 103-236, issued its 
     report on March 4, 1997 (S. Doc. 105-2), in which it 
     recommended reducing the volume of information classified and 
     strengthening the protection of classified information.
       (3) The absence of a statutory framework has resulted in 
     unstable and inconsistent classification and declassification 
     policies, excessive costs, and inadequate implementation.
       (4) The implementation of Executive orders will be even 
     more costly as more documents are prepared and used on 
     electronic systems.
       (5) United States taxpayers incur substantial costs as 
     several million documents are classified each year. According 
     to figures submitted to the Information Security Oversight 
     Office and the Congress, the executive branch and private 
     industry together spent more than $5.2 billion in 1996 to 
     protect classified information.
       (6) A statutory foundation for the classification and 
     declassification of information is likely to result in a more 
     stable and cost-effective set of policies and a more 
     consistent application of rules and procedures.
       (7) Enactment of a statute would create an opportunity for 
     greater oversight by the Congress of executive branch 
     classification and declassification activities, without 
     impairing the responsibility of executive branch officials 
     for the day-to-day administration of the system.


       (a) Classification For National Security Reasons.--The 
     President may, in accordance with this Act, protect from 
     unauthorized disclosure information in the possession and 
     control of the executive branch when there is a demonstrable 
     need to do so in order to protect the national security of 
     the United States. The President shall ensure that the amount 
     of information classified is the minimum necessary to protect 
     the national security.
       (b) Procedures for Classification and Declassification.--
       (1) In general.--The President shall, to the extent 
     necessary, establish categories of information that may be 
     classified and procedures for classifying information under 
     subsection (a). The President shall, concurrently with the 
     establishment of such categories and procedures, establish, 
     and allocate resources for the implementation of, procedures 
     for declassifying information previously classified.
       (2) Publication of categories and procedures.--
       (A) The President shall publish notice in the Federal 
     Register of any categories and procedures proposed to be 
     established under paragraph (1) with respect to both the 
     classification and declassification of information, and shall 
     provide an opportunity for interested agencies and other 
     interested persons to submit comments thereon. The President 
     shall take into account such comments before establishing the 
     categories and procedures, which shall also be published in 
     the Federal Register.
       (B) The procedures set forth in subparagraph (A) shall 
     apply to any modifications in categories or procedures 
     established under paragraph (1).
       (3) Agency standards and procedures.--The head of each 
     agency shall establish standards and procedures for 
     classifying and declassifying information created by that 
     agency on the basis of the categories and procedures 
     established by the President under paragraph (1). Each agency 
     head, in establishing and modifying standards and procedures 
     under this paragraph, shall follow the procedures required of 
     the President in paragraph (2) for establishing and modifying

[[Page S4112]]

     categories and procedures under that paragraph.
       (c) Considerations in Determining Classification and 
       (1) In general.--In determining whether information should 
     be classified or declassified, the agency official making the 
     determination shall weigh the benefit from public disclosure 
     of the information against the need for initial or continued 
     protection of the information under the classification 
     system. If there is significant doubt as to whether 
     information requires such protection, it shall not be 
       (2) Written justification.--
       (A) Original classification.--The agency official who makes 
     the decision to classify information shall identify himself 
     or herself and shall provide in writing a detailed 
     justification for that decision.
       (B) Derivative classification.--In any case in which an 
     agency official classifies a document on the basis of 
     information previously classified that is included or 
     referenced in the document, that agency official shall 
     identify himself or herself in that document.
       (d) Standards for Declassification.--
       (1) Initial classification period.--Information may not 
     remain classified under this Act for longer than a 10-year 
     period unless the head of the agency that created the 
     information certifies to the President at the end of such 
     period that the information requires continued protection, 
     based on a current assessment of the risks of disclosing the 
     information, carried out in accordance with subsection 
       (2) Additional classification period.--Information not 
     declassified prior to or at the end of the 10-year period 
     referred to in paragraph (1) may not remain classified for 
     more than a 30-year period unless the head of the agency that 
     created the information certifies to the President at the end 
     of such 30-year period that continued protection of the 
     information from unauthorized disclosure is essential to the 
     national security of the United States or that demonstrable 
     harm to an individual will result from release of the 
       (3) Declassification schedules.--All classified information 
     shall be subject to regular review pursuant to schedules each 
     agency head shall establish and publish in the Federal 
     Register. Each agency shall follow the schedule established 
     by the agency head in declassifying information created by 
     that agency.
       (4) Assessment of existing classified information.--Each 
     agency official responsible for information which, before the 
     effective date of this Act--
       (A) was determined to be kept protected from unauthorized 
     disclosure in the interest of national security, and
       (B) had been kept so protected for longer than the 10-year 
     period referred to in paragraph (1),
     shall, to the extent feasible, give priority to making 
     decisions with respect to declassifying that information as 
     soon as is practicable.
       (e) Reports to Congress.--Not later than December 31 of 
     each year, the head of each agency that is responsible for 
     the classification and declassification of information shall 
     submit to the Congress a report that describes the 
     application of the classification and declassification 
     standards and procedures of that agency during the preceding 
     fiscal year.
       (f) Amendment to Freedom of Information Act.--Section 
     552(b)(1) of title 5, United States Code, is amended to read 
     as follows:
       "(1)(A) specifically authorized to be classified under the 
     Government secrecy Act of 1997, or specifically authorized, 
     before the effective date of that Act, under criteria 
     established by an Executive order to be kept secret in the 
     interest of national security (as defined by section 7(6) of 
     the Government secrecy Act of 1997), and (B) are in fact 
     properly classified pursuant to that Act or Executive 


       (a) Establishment.--The President shall establish, within 
     an existing agency, a National Declassification Center, the 
     functions of which shall be--
       (1) to coordinate and oversee the declassification policies 
     and practices of the Federal Government; and
       (2) to provide technical assistance to agencies in 
     implementing such policies and practices, in accordance with 
     this section.
       (b) Functions.--
       (1) Declassification of information.--The Center shall, at 
     the request of any agency and on a reimbursable basis, 
     declassify information within the possession of that agency 
     pursuant to the guidance of that agency on the basis of the 
     declassification standards and procedures established by that 
     agency under section 4, or if another agency created the 
     information, pursuant to the guidance of that other agency on 
     the basis of the declassification standards and procedures 
     established by that agency under section 4. In carrying out 
     this paragraph, the Center may use the services of officers 
     or employees or the resources of another agency, with the 
     consent of the head of that agency.
       (2) Coordination of policies.--The Center shall coordinate 
     implementation by agencies of the declassification policies 
     and procedures established by the President under section 4 
     and shall ensure that declassification of information occurs 
     in an efficient, cost-effective, and consistent manner among 
     all agencies that create or otherwise are in possession of 
     classified information.
       (3) Disputes.--If disputes arise among agencies regarding 
     whether information should or should not be classified, or 
     between the Center and any agency regarding the Center's 
     functions under this section, the heads of the agencies 
     concerned or of the Center may refer the matter to the 
     President for resolution of the dispute.
       (c) National Declassification Advisory Committee.--
       (1) In general.--There is established a 12-member National 
     Declassification Advisory Committee. 4 members of the 
     Advisory Committee shall be appointed by the President and 2 
     members each shall be appointed by the majority and minority 
     leaders of the Senate, the Speaker of the House of 
     Representatives, and the minority leader of the House of 
       (2) Membership.--The members of the Advisory Committee 
     shall be appointed from among distinguished historians, 
     political scientists, archivists, other social scientists, 
     and other members of the public who have a demonstrable 
     expertise in declassification and the management of 
     Government records. No officer or employee of the United 
     States Government shall be appointed to the Advisory 
       (3) Duties.--The Advisory Committee shall provide advice to 
     the Center and make recommendations concerning 
     declassification priorities and activities.
       (d) Annual Reports.--The Center shall submit to the 
     President and the Congress, not later than December 31 of 
     each year, a report on its activities during the preceding 
     fiscal year, and on the implementation of agency 
     declassification practices and its efforts to coordinate 
     those practices.


       Nothing in this Act shall be construed to authorize the 
     withholding of information from the Congress.


       As used in this Act--
       (1) the term "Advisory Committee" means the National 
     Declassification Advisory Committee established under section 
       (2) the term "agency" means any executive agency as 
     defined in section 105 of title 5, United States Code, any 
     military department as defined in section 102 of such title, 
     and any other entity in the executive branch of the 
     Government that comes into the possession of classified 
       (3) the term "Center" means the National Declassification 
     Center established under section 5(a);
       (4) the terms "classify", "classified", and 
     "classification" refer to the process by which information 
     is determined to require protection from unauthorized 
     disclosure pursuant to this Act in order to protect the 
     national security of the United States;
       (5) the terms "declassify", "declassified", and 
     "declassification" refer to the process by which 
     information that has been classified is determined to no 
     longer require protection from unauthorized disclosure 
     pursuant to this Act; and
       (6) the term "national security of the United States" 
     means the national defense or foreign relations of the United 


       This Act shall take effect 180 days after the date of the 
     enactment of this Act.

                                     Institute for Advanced Study,

                                 School of Historical Studies,

                                    Princeton, NJ, March 25, 1997.
     Senator Daniel P. Moynihan,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator: Thank you for your note of the 7th, and for 
     the copy of your recent talk at Georgetown, which I have read 
     with deep appreciation.
       There are several points you touched on in that talk which, 
     were we sitting at leisure around a fireside, I would like to 
     pursue. I cannot treat them all here. But there is one matter 
     on which you did not specifically mention but which lies 
     close to the subject you had in mind, and on which I am moved 
     to say a word. It is a matter on which I have long looked 
     for, but never found, a suitable chance to comment publicly.
       It is my conviction, based on some 70 years of experience, 
     first as a government official and then in the past 45 years 
     as an historian, that the need by our government for secret 
     intelligence about affairs elsewhere in the world has been 
     vastly over-rated. I would say that something upwards of 95% 
     of what we need to know about foreign countries could be very 
     well obtained by the careful and competent study of perfectly 
     legitimate sources of information open and available to us in 
     the rich library an archival holdings of this country. Much 
     of the remainder, if it could not be found here (and there is 
     very little of it that could not) could easily be non-
     secretively elicited from similar sources abroad.
       In Russia, in Stalin's time and partly thereafter, the 
     almost psychotic preoccupation of the Communist regime with 
     secrecy appeared to many, not unnaturally, to place a special 
     premium on efforts to penetrate that curtain by secretive 
     methods of our own. This led, of course, to the creation here 
     of a vast bureaucracy dedicated to this particular purpose; 
     and this latter, after the fashion of all great bureaucratic 
     structures, has endured to this day, long after most of the 
     reasons for it have disappeared. Even in the Soviet time, 
     much of it was superfluous. A lot of what we went to such 
     elaborate and dangerous means to obtain secretly would have 
     been here for the having, given the requisite quiet and 
     scholarly analysis of what already lay before us.

[[Page S4113]]

       The attempt to elicit information by secret means has 
     another very serious negative effect that is seldom noted. 
     The development of clandestine sources of information in 
     another country involves, of course, the placing and the 
     exploitation of secret agents on the territory of that 
     country. This naturally incites the mounting of a substantial 
     effort of counterintelligence on the part of the respective 
     country's government. This, in turn, causes us to respond 
     with an equally vigorous effort of counterintelligence in 
     order to maintain the integrity of our espionage effort. 
     But for a variety of reasons, this competition in 
     counterintelligence efforts tends to grow into dimensions 
     that wholly overshadow the original effort of positive 
     intelligence procurement that gave rise to it in the first 
     place. It takes on aspects which cause it to be viewed as 
     a game, played in its own rights. Unfortunately, it is a 
     game requiring such lurid and dramatic character that it 
     dominates the attention both of those that practice it, 
     and of those in the press and the media who exploit it. 
     Such is the fascination it exerts that it tends wholly to 
     obscure, even for the general public the original reasons 
     for it. It would be interesting to know what proportion of 
     the energies and expenses and bureaucratic involvement of 
     the C.I.A. is addressed to this consuming competition, and 
     whether one ever stacks this up against the value of its 
     almost forgotten original purposes. Do people ever 
     reflect, one wonders, that the best way to protect against 
     the penetration of one's secrets by others is to have the 
     minimum of secrets to conceal?
       One more point. At the bottom of the whole great effort of 
     secret military intelligence, which has played so nefarious a 
     part in the entire history of great-power relationships in 
     this passing century, there has usually lain the assumption 
     by each party that if it did not engage to the limit in that 
     exercise the other party, working in secret, might develop a 
     weapon so devastating that with it he could confront all 
     others with the demand that they submit to his will "or 
       But this sort of anxiety is now greatly outdated. The 
     nuclear competition has taught us that the more terrible the 
     weapons available, the more suicidal becomes any conceivable 
     actual use of them. With the recognition of the implications 
     of this simple fact would go a large part of the motivation 
     for our frantic efforts of secret intelligence. In this 
     respect, too, this is really a new age. It is time we 
     recognized it and drew the inescapable conclusions.
       There may still be areas, very small areas really, in which 
     there is a real need to penetrate someone else's curtain of 
     secrecy. All right. But then please, without the erection of 
     false pretenses and elaborate efforts to deceive--and 
     without, to the extent possible--the attempt to maintain 
     "spies" on the adversary's territory. We easily become 
     ourselves, the sufferers from these methods of deception. For 
     they inculcate in their authors, as well as their intended 
     victims, unlimited cynicism, causing them to lose all 
     realistic understanding of the interrelationship, in what 
     they are doing, of ends and means.
       Forgive me for burdening you with this outburst. I am not 
     unloading upon my friends, in private letters, thoughts I 
     should probably have brought forward publicly long ago. I 
     have to consider that this is the only way I can put some of 
     these thoughts into words before, in the case of a person 93 
     years of age, it becomes too late.
       Warm and admiring greetings.
           Very sincerely,
                                                    George Kennan.

  Mr. HELMS. I am pleased to join Senator Moynihan today in introducing 
a bill that would for the first time place in statute the Government 
system for the classification of information. To date this has been 
accomplished solely through Executive order.
  The statute is based on the recommendations contained in the report 
of the Commission to Protect and Reduce Government secrecy chaired by 
my colleague Pat Moynihan, the senior Senator from New York. The 
secrecy Commission achieved a unified report of recommendations--a feat 
that should not be underrated, especially in Washington.
  The Commission, by law, had the twin goals of studying how to protect 
important Government secrets and simultaneously reducing the amount of 
classified documents and materials. All Commissioners began their 
deliberations with the premise that Government secrecy is a form of 
regulation that, like all regulations, should be used sparingly, and 
certainly never for the goal of keeping the truth from the American 
people. Commissioners also began the process recognizing that over-
classification can actually weaken the protections of those secrets 
that truly are in our national interest.
  All the same I am obliged to begin with a reiteration of the 
obvious--that the protection of true national security information 
remains vital to the well-being and security of the United States. The 
end of the cold war notwithstanding, the United States continues to 
face serious and long-term threats from a variety of fronts. While 
Communist and anti-American regimes, such as North Korea, Cuba, Iran, 
and Iraq, continue to wage a war of espionage against the United 
States, new threats have arisen as well.
  Most alarming, perhaps, is the growing trend of espionage conducted 
not by our enemies but by American allies. Such espionage is on the 
rise especially against U.S. economic secrets. According to a February 
1996 report by GAO, classified military information and sensitive 
military technologies are high priority targets for the intelligence 
agencies of U.S. allies.
  At first blush, a push to reduce Government secrecy may seem at odds 
with these increasing threats. I am convinced it is not. The sheer 
volume of government secrets--and their cost to the taxpayers and U.S. 
business--is staggering. In 1996 the taxpayers spent more than $5.2 
billion to protect classified information. We know all too well from 
our own experiences that when everything is secret nothing is secret.
  secrecy all too often then becomes a political tool used by executive 
branch agencies to shield information which may be politically 
sensitive or policies which may be unpopular with the American public. 
Worse yet, information may be classified to hide from public view 
illegal or unethical activity. On numerous occasions I, and other 
Members of Congress, have found the executive branch to be reluctant to 
share certain information, the nature of which is not truly a national 
secret, but which would be potentially politically embarrassing to 
officials in the executive branch or which would make known an illegal 
or indefensible policy.

  I have also found that one of the largest impediments to openness is 
the perverse incentives of the Government bureaucracy itself in favor 
of classification, and the lack of accountability for those who do the 
actual classification. I strongly endorse the Commission's 
recommendation of adding individual accountability to the process by 
requiring original and derivative classifiers to actually identify 
themselves and include within the documents a justification of the 
decision to classify.
  The only way to change a bureaucracy is to reverse the incentive to 
classify. A good example of how to change this lack of bureaucratic 
accountability is a provision contained in H.R. 3121--legislation which 
we approved in the Foreign Relations Committee last year that was 
signed into law. Previously, details on U.S. commercial arms sales to 
foreign governments were not made available to the public unless a 
citizen requested that the State Department make it public. The 
incentive therefore was to keep the information closely regulated. H.R. 
3121 provides that all arm sales will be made public unless the 
President determines that the release of the information is contrary to 
U.S. national security interest. Although this may appear to be a small 
nuance, the bureaucratic incentive is changed enormously to favor 
openness. Shifting the burden in this way can introduce more openness 
into the system and force the bureaucracy to identify true national 
security threats.
  I am convinced, however, that the single most important 
recommendation of our Commission that Congress should focus on is the 
concept of creating a life cycle for secrets. This means that all 
information, classified and unclassified alike, has a life span in 
which decisions must be made regarding creation, management, and use. 
This kind of rationalization would shift the burden to favor openness 
and reduce some of the costs associated with declassification.
  I would add a note of caution to the Commission's work on 
declassification, however. In the course of the 2 years of its work, 
the Commission became very interested in the declassification of 
existing documents and materials. In a perfect world, if information 
remains relevant to true U.S. national interests it should remain 
classified indefinitely. Information that does not compromise U.S. 
interests and sources should be made public. We all realize, however, 
that this is a tremendously costly venture. In fact, the Commission was 
unable to come up with solid data on the true cost of declassification.
  In this era when Congress has finally begun to grasp the essential 
need to reduce Government spending and balance the budget, the issue of 
balancing costs

[[Page S4114]]

and benefits is an essential one. The financial costs to the American 
taxpayers must be balanced against the necessity of the 
declassification. The real lesson to take from the work of this 
Commission is the need to redress for the future the problems of over 
classification and a systematic process for declassification, so that 
the costs and timeliness of declassification does not pose the same 
economic and regulatory burdens on future generations. At the same 
time, it may be too costly to declassify all of the countless 
classified documents now in existence.
  With this caveat in mind, I hope the Congress will focus on bringing 
government-wide rationalization to the classification process. It is an 
area where tough congressional oversight is long overdue. 

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