Congressional Record: July 15, 2004 (Senate)
Page S8234-S8237

      By Mr. WYDEN (for himself, Mr. Lott, Mr. Graham of Florida, and 
        Ms. Snowe):
  S. 2672. A bill to establish an Independent National Security 
Classification Board in the executive branch, and for other purposes; 
to the Select Committee on Intelligence.
  Mr. WYDEN. Mr. President, I am pleased to be joined today by Senators 
Lott, Graham of Florida, and Snowe in introducing legislation to create 
an independent National Security Classification Board. We believe it is 
time to clear the fog of secrecy by creating an independent board to 
review current and make recommendations for new standards and 
procedures for the classification of information for national security 
  Our Founding Fathers believed in the idea that democracy works best 
with the full disclosure of accurate information. Today, some might 
find that notion quaint. But it is one that bears consideration--
because the principle of open government so dear to America's founders 
is being tested today as never before. The culture of secrecy that grew 
out of the Cold War has now become woven into the very fabric of our 
daily lives.
  Information that the American people have a right to know--indeed, 
information that the American people need to know to make informed 
decisions about the kind of government they want and the kind of 
country this should be--is being withheld by the Federal government. It 
is being buried in a virtual bunker marked ``do not enter,'' sealed off 
from public view with a big red stamp--marked ``Classified.'' And too 
often that big red stamp is used not to hide state secrets, but to 
protect political backsides at great cost to our open and democratic 
  A very revealing speech was delivered three weeks ago by the head of 
the Information Security Office, which oversees classification and 
declassification policies, Mr. William Leonard. Known

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sometimes as the ``secrecy czar,'' he complained that the 
classification system for national security has lost touch with the 
basics; that some agencies don't know how much information they 
classify, or whether they are classifying more or less than they once 
did; whether they are classifying too much or too little. He called 
today's classification system ``a patchwork quilt'' that is the result 
of a hodgepodge of laws, regulations and directives. ``In reality,'' he 
said ``the Federal Government has so many varieties of classification 
that it can make Heinz look modest . . .''
  Two important reports confirm Mr. Leonard's argument that the 
classification system is out of control. The reports, the forthcoming 
9-11 Commission report and last week's Senate Intelligence Committee on 
Iraq, show the Administration's determination to blanket the Federal 
government in secrecy. Even more important than the information that is 
published in these reports is the information withheld from the public 
and redacted from the reports.
  These reports demonstrate a serious imbalance of power between the 
public and the officials who wield the ``top secret'' stamp. They raise 
troubling questions about whether those who control the classification 
of information for national security purposes have misused this 
authority to shield officials from the glare of public accountability 
and to stifle public debate about politically sensitive parts of the 
war on terrorism.
  This is not the first time our country has grappled with the trade-
offs between the need to protect the public and the public's need to 
know. But the automatic default to secrecy rather than public 
accountability is not part of our history. Scholarly studies about 
which material should be classified and at what level fill libraries. 
According to the late Senator Daniel Patrick Moynihan, an expert on 
secrecy in government, the first real Congressional debate about 
protecting national secrets occurred during consideration of the Alien 
and Sedition Acts of 1798, passed to silence opposition to war with 
France. ``It was,'' as Senator Moynihan wrote in Secrecy, ``our 
nation's first experience with how war or the threat of war changed the 
balance between private liberty versus public order, an instability 
that was eerily reenacted 119 years later.'' ``Indeed, much of the 
structure of secrecy now in place in the U.S. government took shape in 
just under eleven weeks in the spring of 1917, while the Espionage Act 
was debated and signed into law.'' Eighty years later, Senator Moynihan 
would note that 6,610,154 million secrets were created in one year 
alone. In fact, only a small portion, or 1.4 percent, were created 
pursuant to statutory authority, the Atomic Energy Act; Senator 
Moynihan labeled the other 98.6 percent ``pure creatures of 
bureaucracy,'' created via Executive Orders.

  One of the ``creatures'' in the classification menagerie was set free 
to roam through the work of the 9-11 Commission and the Senate 
Intelligence Committee's report. The American people should not be 
fooled--pure bureaucracy refused to allow full public disclosure of the 
decisions and materials used by the 9-11 Commission to prepare its 
report. Pure bureaucracy also redacted nearly half of the Senate 
Intelligence Committee's review of Intelligence on Iraq. The 
``creature'' has overreached.
  Since President Roosevelt issued the first national security 
classification directive in 1940, the American people have often 
demonstrated a high tolerance for secrecy in military and foreign 
affairs, even in some cases where it has been abused. However, the 
rising tide of secrecy has reached the point where it threatens to 
drown our system of checks and balances, and calls out for a complete 
rethinking of the system used to classify information for national 
security purposes.
  Today the Executive Branch exerts almost total control over what 
should or should not be classified. Congress has no ability to 
declassify material. There is no self-correcting mechanism in the 
system. Even if Members of Congress wanted to share information with 
their constituents, it's so complicated for Congress to release 
information to the public that nobody's ever tried to use the 
convoluted processes. The Executive Branch has a little known group 
that can review classification issues, but it is seldom used and open 
only to Executive Branch employees, not to Members of Congress or the 
  What does all of this mean in practice? It means that with the thump 
of a stamp marked ``secret,'' some bureaucrat in the belly of a federal 
building has prevented the families of the victims of 9-11 from knowing 
exactly what happened to their loved ones. It means the American people 
may never know who gave the orders dictating how prisoners at Abu 
Ghraib could be treated. It means these decisions cannot be appealed, 
even by Congress. It means there is no independent review of the 
classification decisions by the Executive Branch.
  With no chance of unbiased review, classification decisions are ready 
and ripe for abuse. Agencies wishing to hide their flaws and 
politicians of both parties wishing to make political points can abuse 
the existing classification guidelines to their advantage. I want to 
change that.
  President Kennedy said the time to repair the roof is when the sun is 
shining. In the realm of secrecy, storm clouds are approaching. The 
bureaucracies in our government that deal with secrets are by nature 
cautious when it comes to protecting information pertinent to our 
nation's security. They err on the side of caution and they are very 
territorial about it, treating secrets as if they are assets to be 
traded. This is an understandable impulse. But erring too far and too 
often on the side of caution keeps a lot of information hidden that 
could safely enlighten public debate. Even worse, overclassification of 
information is dangerous. If agencies and bureaucracies aren't sharing 
information among themselves, important clues can be missed. Their 
mission to keep citizens safe can be jeopardized by classification 

  The tragedy of 9-11, the war on terrorism and the United States' 
invasion of Iraq have offered ample opportunity to argue for 
classification of just about any document on the grounds of national 
security. Additionally, there are those who feel that the current 
Administration took office with an unhealthy penchant for secrecy 
already firmly in place. In its first two years, Bush Administration 
officials made 44.5 million decisions to classify records and related 
documents, according to the Information Security Oversight office, part 
of the National Archives and Records Administration. This is about the 
same number of classification decisions made during the last four years 
of the Clinton Administration.
  The Atlanta Journal reported recently that ``federal, state and local 
governments are shutting down access to public records in what some 
experts say is the most expansive assault on open government in the 
nation's history.'' The Bush Administration has even expanded the 
number of officials with the power to classify documents for purposes 
of national security beyond the 13 agencies that operated under the 
national security classification system to include the secretaries of 
agriculture, health and human services and the EPA Administrator.
  I for one 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 the one hand, and the Constitutional role of the 
President as Commander in Chief on the other.
  I believe a balance can and must be struck between the public's need 
for sound, cleareyed analysis and the Executive's desire to protect the 
nation's legitimate security interests. I believe we can fight 
terrorism ferociously without sacrificing personal privacy. There is no 
room in this equation for the use of classification to insulate 
officials and agencies from political pressure. As a member of the 
Senate Intelligence Committee I have had lengthy discussions with my 
colleagues about how to achieve such a balance.
  In my view this balance can be achieved only through a broad overhaul 
of the national security classification system. Legislation that I will 
be introducing shortly will accomplish this through the establishment 
of an Independent National Security Classification Board. The Board 
would be made up of three individuals, knowledgeable in national 
security classification, appointed by the President

[[Page S8236]]

with the advice and consent of the Senate.
  The task of the Independent Board would be to review and make 
recommendations on overhauling the standards and process used in the 
classification system for national security information. The Board 
would submit proposed new standards and processes to both Congress and 
the Executive Branch for comment and revision, and then implement the 
new standards and process once they have had the opportunity to 
comment. The Board would then begin to implement the new system, 
reviewing and making recommendations on current and new national 
security classifications, subject to Executive Branch veto that must be 
accompanied by a public, written explanation.

  The balance in this proposal assures that the public and Congress 
have access to an independent Board for national security 
classification matters while leaving undisturbed the Commander in 
Chief's constitutional prerogative in military and foreign policy 
matters through the power to appoint the Board and to veto the Board's 
classification decisions.
  The Founding Fathers conceived of the Federal government to serve the 
American people. Sometimes that is done by keeping secrets, by securing 
information that could put Americans in harm's way if it became public. 
Information should be classified to protect the homeland. But when 
information is withheld to protect political careers and entrenched 
bureaucracies, that's not a service to the American people. It's a 
perversion of a policy intended to save lives, a perversion that 
weakens our democracy and could even endanger our people. It's time to 
throw open the curtains and let the sun shine in on American democracy 
and on the governmental process much brighter than it does today. 
That's what I intend to do with my legislation. The American people 
deserve no less.
  I ask unanimous consent that the text of the bill be printed in the 
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2672

       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 ``Independent National 
     Security Classification Board Act of 2004''.

     SEC. 2. PURPOSE.

       The purpose of this Act is to establish in the executive 
     branch an Independent National Security Classification 
       (1) to review the standards and procedures used in the 
     classification system for national security information;
       (2) to propose and submit to Congress and the President for 
     comment new standards and procedures to be used in the 
     classification system for such information;
       (3) to establish the new standards and procedures after 
     Congress and the President have had the opportunity to 
     comment; and
       (4) to review, and make recommendations with respect to, 
     classifications of current and new information made under the 
     applicable classification system.


       (a) Establishment.--The Independent National Security 
     Classification Board (in this Act referred to as the 
     ``Board'') is established as an independent agency in the 
     executive branch.
       (b) Composition.--The Board shall be composed of one member 
     appointed by the President, one member jointly recommended by 
     the Majority Leader and the Minority Leader of the Senate and 
     appointed by the President, and one member jointly 
     recommended by the Speaker of the House of Representatives 
     and the Minority Leader of the House of Representatives and 
     appointed by the President, each by and with the advice and 
     consent of the Senate. Each member shall be knowledgeable on 
     classification matters.
       (c) Term of Members.--Each member of the Board shall be 
     appointed for a term of 5 years. A member may be reappointed 
     for one additional 5-year term. A member whose term has 
     expired shall continue to serve on the Board until a 
     replacement has been appointed.
       (d) Vacancies.--Any vacancy in the Board shall not affect 
     its powers, but shall be filled in the same manner as the 
     original appointment.
       (e) Separate Office.--The Board shall have its own office 
     for carrying out its activities, and shall not share office 
     space with any element of the intelligence community or with 
     any other department or agency of the Federal Government.
       (f) Chairman.--The Board shall select a Chairman from among 
     its members.
       (g) Meetings.--The Board shall meet at the call of the 
       (h) Quorum.--A majority of the members of the Board shall 
     constitute a quorum, but a lesser number of members may hold 
       (i) Availability of Information.--The decision-making 
     process of the Board may be classified, but the final 
     decisions of the Board and the reports submitted under this 
     Act shall be made available to the public.
       (j) Initial Appointments and Meeting.--
       (1) Initial appointments.--Initial appointments of members 
     of the Board shall be made not later than 90 days after the 
     date of the enactment of this Act.
       (2) Initial meeting.--The Board shall hold its first 
     meeting not later than 30 days after the date on which all 
     members of the Board have been appointed.
       (k) Website.--The Board shall establish a website not later 
     than 90 days after the date on which all members of the Board 
     have been appointed.


       (a) Review of Classification System.--
       (1) In general.--The Board shall conduct a thorough review 
     of the classification system for national security 
     information, including the policy, procedures, and practices 
     of the system. The Board shall recommend reforms of such 
     system to ensure--
       (A) the protection of the national security of the United 
       (B) the sharing of information among Government agencies; 
       (C) an open and informed public discussion of national 
     security issues.
       (2) Scope of review.--
       (A) Consultation.--The Board shall consult with the Select 
     Committee on Intelligence, the Committee on Armed Services, 
     and 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 in determining the scope of 
     its review of the classification system.
       (B) Review.--The Board shall submit a report describing the 
     proposed scope of review to the President and the committees 
     of Congress referred to in subparagraph (A) for comment.
       (C) Revisions.--Not later than 30 days after receiving the 
     report under subparagraph (B)--
       (i) the President shall notify the Board in writing of any 
     revisions to such scope of review; and
       (ii) each committee of Congress referred to in subparagraph 
     (A) may submit to the Board, in writing, any comments of the 
     committee on the proposed scope of review.
       (b) Adoption of National Security Information 
     Classification System.--
       (1) Authority.--The Board shall prescribe the 
     classification system for national security information, 
     which shall apply to all departments and agencies of the 
     United States.
       (2) Findings and recommendations.--The Board shall, in 
     accordance with the scope of review developed under 
     subsection (a)(2), review the classification system for 
     national security information and submit to the President and 
     Congress its findings and recommendations for new procedures 
     and standards to be used in such classification system.
       (3) Classification system.--Not later than 180 days after 
     the date on which all members of the Board have been 
     confirmed by the Senate, the Board shall adopt a 
     classification system for national security information, 
     incorporating any comments received from the President and 
     considering any comments received from Congress. Upon the 
     adoption of the classification system, the system shall be 
     used for the classification of all national security 
       (c) Review of Classification Decisions.--
       (1) In general.--The Board shall, upon its own initiative 
     or pursuant to a request under paragraph (3), review any 
     classification decision made by an Executive agency with 
     respect to national security information.
       (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 
       (A) the head or Inspector General of an Executive agency 
     who is an authorized holder of such document or material; or
       (B) the chairman or ranking member of--
       (i) the Committee on Armed Services, the Committee on 
     Foreign Relations, or the Select Committee on Intelligence of 
     the Senate; or
       (ii) 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 and

[[Page S8237]]

     have posted on the Board's website a notification in 
     unclassified form of the justification for the President's 
     decision not to implement such recommendation.
       (5) Exemption from freedom of information act.--The Board 
     shall not be required to make documents or materials reviewed 
     under this subsection available to the public under section 
     552 of title 5, United States Code (commonly referred to as 
     the Freedom of Information Act).
       (6) Regulations.--The Board shall prescribe regulations to 
     carry out this subsection.
       (7) 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.


       (a) Hearings.--The Board may hold such hearings, sit and 
     act at such times and places, take such testimony, and 
     receive such evidence as the Board considers advisable to 
     carry out this Act.
       (b) Information From Federal Agencies.--The Board may 
     secure directly from any Federal department or agency such 
     information as the Board considers necessary to carry out 
     this Act. Upon request of the Chairman of the Board, the head 
     of such department or agency shall furnish such information 
     to the Board.
       (c) Administrative Support Services.--Upon request of the 
     Board, the Administrator of General Services shall provide to 
     the Board, on a reimbursable basis, the administrative 
     support necessary for the Board to carry out its duties under 
     this Act.
       (d) Postal Services.--The Board may use the United States 
     mails in the same manner and under the same conditions as 
     other departments and agencies of the Federal Government.
       (e) Gifts.--The Board may accept, use, and dispose of gifts 
     or donations of services or property.


       (a) Executive Schedule Level IV.--Section 5315 of title 5, 
     United States Code, is amended by adding at the end the 
        ``Members, Independent National Security Classification 
       (b) Staff.--
       (1) In general.--The Chairman of the Board may, without 
     regard to the civil service laws and regulations, appoint and 
     terminate an executive director and such other additional 
     personnel as may be necessary to enable the Board to perform 
     its duties under this Act. The employment of an executive 
     director shall be subject to confirmation by the Board.
       (2) Compensation.--The Chairman of the Board may fix the 
     compensation of the executive director and other personnel 
     without regard to chapter 51 and subchapter III of chapter 53 
     of title 5, United States Code, relating to classification of 
     positions and General Schedule pay rates, except that the 
     rate of pay for the executive director and other personnel 
     may not exceed the rate payable for level V of the Executive 
     Schedule under section 5316 of such title.
       (c) Detail of Government Employees.--Any employee of the 
     Federal Government may be detailed to the Board without 
     reimbursement, and such detail shall be without interruption 
     or loss of civil service status or privilege.


       There are authorized to be appropriated to the Board 
     $2,000,000 for fiscal year 2005, and such sums as may be 
     necessary thereafter.