Congressional Record: September 29, 2004 (Senate)
Page S9873-S9916


  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of S. 2845, which the clerk will report.
  The legislative clerk read as follows:

       A bill (S. 2845) to reform the intelligence community and 
     the intelligence and intelligence-related activities of the 
     U.S. Government, and for other purposes.


       Wyden Amendment No. 3704, to establish an Independent 
     National Security Classification Board in the executive 


  Ms. COLLINS. Mr. President, I want to give my colleagues an update on 
an amendment that was offered yesterday. It is an amendment that was 
offered by Senator Wyden on behalf of himself, Senator Snowe, Senator 
Graham, and Senator Lott. I believe we have reached an agreement on a 
compromise to that amendment, which deals with declassification. 
Actually, I recall the Presiding Officer, Senator Cornyn, is also a 
cosponsor of the amendment.
  We have been able to work out an alternative to the amendment. We are 
just waiting for language to come from legislative counsel. It is my 
hope, and I believe the hope of Senator Lieberman, that we will be able 
to dispose of that amendment this afternoon.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I thank the chairman. That is certainly 
my hope. I am grateful that all the parties have come together about 
this amendment. I think we have a solution that doesn't create another 
board but does realize the goals that Senator Wyden and the other 
bipartisan sponsors of the amendment have, to have a reasonable means 
of asking for a second look, if I can put it that way, at a 
classification decision made by the executive branch with regard to 
congressional access to intelligence information. I am very pleased 
about that and I hope we can get the language here and do it this 


                           Amendment No. 3704

  Mr. LIEBERMAN. Mr. President, the Senator from Oregon, Mr. Wyden, 
along with a very impressive bipartisan group of cosponsors, introduced 
an amendment of real import 2 days ago. We said we would try very hard 
to work it out. I am quite delighted and grateful that we have worked 
it out in a way that is acceptable to all involved and it accomplishes 
a very significant public purpose. I thank the Senator from Oregon for 
all he did to bring us to that point.
  I happily yield the floor to him.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, I express my appreciation to both the 
distinguished Senator from Connecticut and the chairman of the 
committee, Senator Collins. As I said on Monday, the Senate is well 
served by having this bipartisan duo that has long practiced good 
government steering us on this important piece of legislation.
  The Senator from Connecticut is absolutely right; the three of us 
have worked very cooperatively over the last few days. Senator Lott 
also has made a valuable contribution, as well as Senator Cornyn, 
Senator Dayton, and Senator Snowe. A bipartisan group of Senators has 
been concerned about this issue. I believe the legislative counsel's 
office will have the actual language to bring to the Senate very 
shortly, probably in 10 or 15 minutes.
  With the agreement of the Senator from Connecticut, I will take a few 
minutes to outline what the distinguished Senator from Maine, the 
Senator from Connecticut, myself, Senator Lott, and our group have 
agreed to.
  The ability to stamp a Government document secret is one of the most 
powerful tools in our Government. The backdrop for this whole debate 
was best summed up by Governor Kean, who did such a good job in 
chairing the 9/11 Commission, who said three-quarters of all the 
documents he saw associated with his work on the 9/11 Commission that 
were classified should not have been classified. The power to stamp, in 
effect, Government documents secret is now a power wielded by people in 
the belly of 18 Federal agencies where they now classify more than 14 
million new documents each year. This is a power that costs taxpayers 
about $6.5 billion a year, and it is a power that is simply out of 
  Senators on both sides of the aisle recognize that the system used to 
classify information for national security purposes is broken. It has 
been the premise of our bipartisan group that it is possible to fight 
terrorism ferociously, aggressively, and at the same time make sure 
that the public's right to know information the public is entitled to 
is addressed.
  When we look, for example, at the Senate Intelligence Committee--
Senator Lott, Senator Snowe, Senator Bayh and I serve on that 
committee--had it not been for the exceptional work of Chairman Roberts 
and Senator Rockefeller, much of what we tried to do with respect to 
our bipartisan report on prewar intelligence would have simply been 
censored. It would have all been drowned in a sea of black ink. So what 
we need to do is bring some common sense to this area which is now a 
hodgepodge of laws and regulations and directives. We are now in a 
position to outline the changes we have agreed to in our legislation.
  First--most importantly--this legislation establishes an independent 
body known as the independent national security classification board 
which would review existing or proposed classification of any document 
or material. They would, in effect, be part of an effort for the first 
time to ensure that there would be an independent board to which there 
can be an appeal of classification decisions. Although right now an 
executive agency has had an appeals body, it has been off limits to 
congressional requests. For the first time, there will be an 
independent board that will look at these classification issues and 
there will be a right of the Congress to appeal a decision.
  The distinguished chair of the committee was not on the floor, but I 
want to express while she is here my appreciation to her. What this has 
been all about from the very beginning is not a Democratic or 
Republican issue.
  This has been about righting the imbalance between the executive 
branch and the legislative branch with respect to classification 
decisions. That is what we have been able to do. It ensures that any 
President's prerogatives as Commander in Chief are maintained. That is 
essential with respect to national security issues.
  We will also have a chance to bring some real independence to the 
process of how Government documents are classified by ensuring that for 
the first time there is an independent route to have a classification 
decision reviewed.
  That process will come after we have had a top-to-bottom review of 
the standards and processes used to classify information. The chair of 
the committee and I have talked about this in the past. What has been 
striking is we have never even done a review of the processes that are 
now used to classify

[[Page S9912]]

documents. People such as those who run the National Archives have said 
that has been a factor in our having such a chaotic system.
  So for the first time, again, Congress would have input into the 
scope of the review that would take place with respect to how 
Government documents are classified as well as the guidelines or 
standards that would be issued as a result of the review.
  The independent national security classification board the amendment 
establishes would assume the duties of a group now known as the public 
interest declassification board. The new board would be made up of nine 
individuals, five of whom are appointed by the President and four of 
whom are appointed by the Senate and the House leadership. This is an 
effort to try to maintain a new kind of balance between the legislative 
branch and the executive branch.

  In order to make sure that balance is maintained over time, the new 
board may recommend changes in the classification of all or portions of 
documents, but the President does not have to accept them. However, the 
key feature here is, if the President chooses not to accept a 
recommendation of the independent national security classification 
board, the President would have to submit to Congress in writing the 
justification for a decision not to implement the recommendation.
  To reiterate, there would be an independent body to which Congress 
can appeal national security classification decisions, but at the same 
time, if the President doesn't see it in the same way the independent 
board does, the President, as Commander in Chief, still has the power 
to exercise the constitutional prerogative as the President determines, 
but for the first time it would have to be done in writing. I do not 
subscribe to the view that there is an inherent conflict between the 
executive branch's accountability to Congress and the American people 
on one hand and the constitutional role of the President as Commander 
in Chief. We have long needed a balance in this area, a balance between 
the public's need for sound, clear-eyed analysis, and the executive's 
desire to protect the Nation's legitimate security interests.
  In my view, there is no room in this equation for the use of 
classification to insulate officials and agencies from politics. That 
was essentially the motivation that got Senator Lott and Senator Snowe 
and a bipartisan group of us in the first place. We have seen this 
abused again and again.
  Senator Moynihan did exceptional work years ago, documenting how so 
many documents have been classified largely because they were trying to 
provide political cover rather than protection for this country's 
national security. Senator Moynihan was a mentor to me because when I 
came to the Senate, I said I was interested in making changes.
  Senator Collins has been very helpful. She has also been helpful on 
some of the other issues we will take up in the course of this 
legislation, particularly the data mining area, where she and Senator 
Lieberman have a great interest as well.
  But Senator Lott, Senator Bob Graham, Senator Cornyn, Senator Snowe--
the group who worked on this issue--are very appreciative of the help 
we received from the chair and the ranking minority member.
  This amendment involves millions of Government documents. It involves 
more than $6 billion that is spent on the classification system each 
  I think we are starting now to lift this kind of fog of secrecy--
changing a classification system that rewards secrecy and discourages 
openness. We will have the amendment actually before the Senate 
probably in a few minutes. In the interest of time--I know the hour is 
late and Senators have amendments--I wanted to speak about this, and I 
wanted to describe what it was that we have agreed to.
  Senator Collins's staff and Senator Lieberman's staff have put in a 
lot of hours with us over the last few days. I am very appreciative and 
particularly pleased that it would be possible to make these kinds of 
changes. Senator Moynihan was right years ago when he advocated a 
process that brought some real independence and a right of appeal to a 
classification decision. The amendment we will offer tonight does just 
  I see the distinguished chairman of the committee in the Chamber. I 
yield the floor at this time.
  The PRESIDING OFFICER. The Senator from Maine is recognized.
  Ms. COLLINS. Mr. President, I express my appreciation to Senator 
Wyden. He is always so good to work with on so many issues, and we have 
enjoyed working on this one as well.
  I want to recognize that Senator Lott was also very involved in the 
negotiations and working with Senator Lieberman and me to modify this 
amendment in a way to preserve the goal of the amendment, and yet to 
address some concerns we had about creating a new board, unnecessary 
bureaucracy, or some duplication.
  As I indicated when Senator Wyden first offered his amendment, I 
believe he is addressing a very real problem, and that is improving the 
way we classify and declassify documents. I know the members of the 
Intelligence Committee have been very frustrated with the process that 
they went through in developing a lengthy report, only to have so much 
of it redacted and to have no good way of appealing those redactions, 
no good way of challenging what many members of that committee, on both 
sides of the aisle, viewed as excessive secrecy or excessive 
  I have been concerned that the original amendment intruded 
unnecessarily into the President's constitutional prerogative and 
duplicated some of the provisions in our bill. I believe the changes we 
have worked out so cooperatively go a very long way toward addressing 
the concerns we had while advancing the goal.
  Rather than creating a new board to review the classification policy, 
Senator Wyden's amendment would now ensure that Congress has an 
opportunity to make comments regarding the Presidential review of 
classification policies already established under the Collins-Lieberman 
bill, and even more importantly to the Senator who has said we need an 
independent place for Congress to go to bring appeals regarding 
classification decisions, the revised amendment has agreed to build 
upon a board that already exists, the Public Interest Declassification 
Board. The amendment would change the name of that board to the 
Independent National Security Classification Board. This board was 
established in 2001, but it is still being put into place.

  Under the Wyden amendment, it will have specific authority to hear 
appeals of classification decisions from specified congressional 
committees. The board would then make a recommendation to the 
President, which the President could either accept or reject. If the 
President rejects the board's decision, then the President, as the 
Senator indicated, would have to send a written justification of that 
decision to Congress. This framework helped to address some of the 
concerns we had about the original amendment.
  I will note that this is not the administration's favorite amendment, 
even in the revised form, but I believe we have struck a fair balance 
and I am prepared to recommend that we accept the amendment once we get 
it. I understand it is going to be here momentarily. There were a few 
technical glitches.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. LIEBERMAN. Mr. President, again, I thank Senator Wyden. It was a 
pleasure for us and our staffs to work with him and his staff. As I 
said, this is a substantial accomplishment. I particularly enjoyed the 
Senator's reference to the late, great Senator Pat Moynihan. I have a 
vision of Pat in Heaven smiling right now. I can see that smile. He is 
probably not wearing that hat that we all loved so much at the time.
  The important thing here is this is a right of appeal, if you will, 
regarding the President's power to classify documents. That is a right 
that will exist in a limited number of Members of Congress, 
interestingly and importantly, of both parties. The ultimate 
beneficiaries, of course, are the American people.
  Members of Congress have access to matters that are fully classified. 
So this is really the public's right to know. If these Members of 
Congress decide that the public has a right to know, ought to have a 
right to know the content of something that has been classified, they 
will have the right to

[[Page S9913]]

appeal to this board for review. It is a very finely balanced 
compromise that is substantial, real, and preserves the President's 
right as Commander in Chief to have the final word. So this was real 
legislating in the public interest.
  I thank the Senator and his cosponsors for the leadership and 
persistence that brought this matter to the floor and results now in 
this agreement which I think will receive unanimous consent from the 
  The PRESIDING OFFICER. The Senator from Oregon is recognized.
  Mr. WYDEN. Mr. President, I will be very brief. Again, I express my 
appreciation to the chair and ranking minority member. The chair made 
an important point with respect to the executive branch. Clearly, no 
President, no executive branch is going to ever hold a rally in favor 
of this kind of idea.
  I think the Senator mentioned Senator Lott. Senator Lott has been 
invaluable from the very beginning. He said we just have to build in--
whether it is Democrats or Republicans--a new sense of independence. I 
have tried to say that there is no question in my mind, whether it was 
a Democratic administration or a Republican administration, what you 
are talking about are human beings who I think inherently are going to 
be concerned about something coming out. So out comes the stamp and 
something is marked ``classified,'' and by the time the rubberstamp 
program is done, you have millions of documents classified in our 
country for reasons that have nothing to do with national security.
  The Senator from Maine has summed it up very well. I am sure we are 
going to continue to hear from the administration as this is debated in 
the Senate and in the House. I do think we have struck a balance that 
ensures that by giving the President, in effect, the first word on a 
classification decision, through their appointees having the ability to 
classify a Government document and, in effect, the last word on a 
subject, because the independent board makes the recommendation to the 
President, if the President decides he doesn't want to go along with 
the independent board, they get the last word by stating in writing why 
they think the independent board is off base. I think that is the kind 
of balance between the executive branch and the legislative branch that 
we ought to have.
  What pleases me is tonight this is the end of the line for a 
classification system that, in effect, encourages secrecy, discourages 
openness, and I am glad a bipartisan effort could have put all this 
time into it. I think we will have the amendment over here quickly. 
With the concurrence of the chair and the ranking minority member, it 
is not my intent to ask for a recorded vote. I think we can do it on a 
voice vote.
  I yield the floor.


                    Amendment No. 3704, As Modified

  Ms. COLLINS. Mr. President, on behalf of Senator Wyden, I send a 
modification of the Wyden amendment No. 3704 to the desk. I ask 
unanimous consent that the amendment be so modified.
  The PRESIDING OFFICER. Without objection, the amendment is so 
  The amendment (No. 3704), as modified, is as follows:
       On page 134, line 14, insert ``issue guidelines'' before 
     ``on classification''
       On page 134, strike lines 16 and 17 and insert the 

     commonly accepted processing and access controls, in the 
     course of which review, the President may consider any 
     comments submitted by the Select Committee on Intelligence, 
     the Committee on Armed Services, the Committee on Foreign 
     Relations of the Senate, and the Permanent Select Committee 
     on Intelligence, the Committee on Armed Services, and the 
     Committee on International Relations of the House of 
     Representatives regarding--
       (i) the scope of the review the President should undertake 
     in formulating the guidelines under this subparagraph; and
       (ii) the substance of what guidelines should be issued.
       On page 177, after line 17, add the following:


       (a) Redesignation of Public Interest Declassification Board 
     as Independent National Security Classification Board.--(1) 
     Subsection (a) of section 703 of the Public Interest 
     Declassification Act of 2000 (title VII of Public Law 10-567; 
     50 U.S.C. 435 note) is amended by striking `` `Public 
     Interest Declassification Board' '' and inserting `` 
     `Independent National Security Classification Board' ''.
       (2) The heading of such section is amended to read as 


       (b) Review of Classification Decisions.--
       (1) In general.--The Independent National Security 
     Classification Board shall, pursuant to a request under 
     paragraph (3), review any classification decision made by an 
     executive agency with respect to national security 
       (2) Access.--The Board shall have access to all documents 
     or other materials that are classified on the basis of 
     containing national security information.
       (3) Requests for review.--The Board shall review, in a 
     timely manner, the existing or proposed classification of any 
     document or other material the review of which is requested 
     by the chairman or ranking member of--
       (A) the Committee on Armed Services, the Committee on 
     Foreign Relations, or the Select Committee on Intelligence of 
     the Senate; or
       (B) the Committee on Armed Services, the Committee on 
     International Relations, or the Permanent Select Committee on 
     Intelligence of the House of Representatives.
       (4) Recommendations.--
       (A) In general.--The Board may make recommendations to the 
     President regarding decisions to classify all or portions of 
     documents or other material for national security purposes or 
     to declassify all or portions of documents or other material 
     classified for such purposes.
       (B) Implementation.--Upon receiving a recommendation from 
     the Board under subparagraph (A), the President shall 
       (i) accept and implement such recommendation; or
       (ii) not later than 60 days after receiving the 
     recommendation if the President does not accept and implement 
     such recommendation, transmit in writing to Congress 
     justification for the President's decision not to implement 
     such recommendation.
       (5) Regulations.--The Board shall prescribe regulations to 
     carry out this subsection.
       (6) Executive agency defined.--In this section, the term 
     ``Executive agency'' has the meaning given that term in 
     section 105 of title 5, United States Code.

  Ms. COLLINS. Mr. President, this modification was debated earlier 
this evening. There is no further debate on the amendment as modified.
  The PRESIDING OFFICER. The question is on agreeing to the amendment, 
as modified.
  The amendment (No. 3704), as modified, was agreed to.