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EMERGING THREATS: OVERCLASSFICATION AND PSEUDO-CLASSIFICATION
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HEARING
before the
SUBCOMMITTEE ON NATIONAL SECURITY,
EMERGING THREATS, AND INTERNATIONAL
RELATIONS
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
MARCH 2, 2005
__________
Serial No. 109-18
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
______
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California
CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California LINDA T. SANCHEZ, California
GINNY BROWN-WAITE, Florida C.A. DUTCH RUPPERSBERGER, Maryland
JON C. PORTER, Nevada BRIAN HIGGINS, New York
KENNY MARCHANT, Texas ELEANOR HOLMES NORTON, District of
LYNN A. WESTMORELAND, Georgia Columbia
PATRICK T. McHENRY, North Carolina ------
CHARLES W. DENT, Pennsylvania BERNARD SANDERS, Vermont
VIRGINIA FOXX, North Carolina (Independent)
------ ------
Melissa Wojciak, Staff Director
David Marin, Deputy Staff Director/Communications Director
Rob Borden, Parliamentarian
Teresa Austin, Chief Clerk
Phil Barnett, Minority Chief of Staff/Chief Counsel
Subcommittee on National Security, Emerging Threats, and International
Relations
CHRISTOPHER SHAYS, Connecticut, Chairman
KENNY MARCHANT, Texas DENNIS J. KUCINICH, Ohio
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida BERNARD SANDERS, Vermont
JOHN M. McHUGH, New York CAROLYN B. MALONEY, New York
STEVEN C. LaTOURETTE, Ohio CHRIS VAN HOLLEN, Maryland
TODD RUSSELL PLATTS, Pennsylvania LINDA T. SANCHEZ, California
JOHN J. DUNCAN, Jr., Tennessee C.A. DUTCH RUPPERSBERGER, Maryland
MICHAEL R. TURNER, Ohio STEPHEN F. LYNCH, Massachusetts
JON C. PORTER, Nevada BRIAN HIGGINS, New York
CHARLES W. DENT, Pennsylvania
Ex Officio
TOM DAVIS, Virginia HENRY A. WAXMAN, California
Lawrence J. Halloran, Staff Director and Counsel
J. Vincent Chase, Chief Investigator
Robert A. Briggs, Clerk
Andrew Su, Minority Professional Staff Member
C O N T E N T S
----------
Page
Hearing held on March 2, 2005.................................... 1
Statement of:
Ben-Veniste, Richard, Commissioner, National Commission on
Terrorist Attacks Upon the United States................... 88
Blanton, Thomas, executive director, National Security
Archive, George Washington University; Harry A. Hammitt,
editor and publisher, Access Reports: Freedom of
Information; Sibel Edmonds, former Contract Linguist,
Federal Bureau of Investigation............................ 109
Blanton, Thomas.......................................... 109
Edmonds, Sibel........................................... 147
Hammitt, Harry A......................................... 128
Leonard, J. William, Director, Information Security Oversight
Office, National Archives and Records Administration; Rear
Admiral Christopher A. McMahon, U.S. Maritime Service,
Acting Director, Departmental Office of Intelligence,
Security and Emergency Response, Department of
Transportation; and Harold C. Relyea, Specialist in
National Government, Congressional Research Service,
Library of Congress........................................ 44
Leonard, J. William...................................... 44
McMahon, Rear Admiral Christopher A...................... 53
Relyea, Harold C......................................... 66
Letters, statements, etc., submitted for the record by:
Ben-Veniste, Richard, Commissioner, National Commission on
Terrorist Attacks Upon the United States:
Letters dated February 11 and March 1, 2005.............. 107
Prepared statement of.................................... 93
Blanton, Thomas, executive director, National Security
Archive, George Washington University, prepared statement
of......................................................... 114
Edmonds, Sibel, former Contract Linguist, Federal Bureau of
Investigation:
Letters dated June 19, 2002 and August 13, 2002.............. 149
Prepared statement of.................................... 186
Report dated January 2005................................ 154
Hammitt, Harry A., editor and publisher, Access Reports:
Freedom of Information, prepared statement of.............. 130
Higgins, Hon. Brian, a Representative in Congress from the
State of New York, prepared statement of................... 42
Kucinich, Hon. Dennis J., a Representative in Congress from
the State of Ohio, prepared statement of................... 9
Leonard, J. William, Director, Information Security Oversight
Office, National Archives and Records Administration,
prepared statement of...................................... 47
Maloney, Hon. Carolyn B., a Representative in Congress from
the State of New York, prepared statement of............... 33
McMahon, Rear Admiral Christopher A., U.S. Maritime Service,
Acting Director, Departmental Office of Intelligence,
Security and Emergency Response, Department of
Transportation, prepared statement of...................... 55
Relyea, Harold C., Specialist in National Government,
Congressional Research Service, Library of Congress,
prepared statement of...................................... 68
Shays, Hon. Christopher, a Representative in Congress from
the State of Connecticut, prepared statement of............ 3
Waxman, Hon. Henry A., a Representative in Congress from the
State of California:
Letter dated March 1, 2005............................... 15
Prepared statement of.................................... 27
EMERGING THREATS: OVERCLASSFICATION AND PSEUDO-CLASSIFICATION
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WEDNESDAY, MARCH 2, 2005
House of Representatives,
Subcommittee on National Security, Emerging
Threats, and International Relations,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 1 p.m., in room
2154, Rayburn House Office Building, Hon. Christopher Shays
(chairman of the subcommittee) presiding.
Present: Representatives Shays, Kucinich, Maloney, Waxman,
Marchant, Turner, Dent, Van Hollen, Higgins, and Ruppersberger.
Staff present: Lawrence Halloran, staff director and
counsel; J. Vincent Chast, chief investigator; R. Nicholas
Palarino, senior policy advisor; Robert Briggs, clerk; Hagar
Hajjar, professional intern; Andrew Su, minority professional
staff member; and Jean Gosa, minority assistant clerk.
Mr. Shays. A quorum being present, the Subcommittee on
National Security, Emerging Threats, and International
Relations hearing entitled, ``Emerging Threats,
Overclassification and Pseudo-Classification,'' is called to
order.
The cold war cult of secrecy remains largely impervious to
the new security imperatives of the post-September 11 world.
Overclassification is a direct threat to national security.
Last year, more Federal officials classified more information
and declassified less than the year before.
In our previous hearing on official secrecy policies, the
Department of Defense [DOD], witness estimated that fully half
of all the data deemed ``confidential, secret or top secret''
by the Pentagon was needlessly or improperly withheld from
public view. Further resisting the call to move from a need to
know to a need to share standard, some agencies have become
proliferators of new categories of shielded data. Legally
ambiguous markings, like sensitive but unclassified, sensitive
homeland security information and for official use only, create
new bureaucratic barriers to information sharing. These pseudo-
classifications can have persistent and pernicious practical
effects on the flow of threat information.
Today Chairman Davis, Government Management Subcommittee
Chairman Platts and I asked the Government Accountability
Office [GAO], to analyze the scope and impact of these
categories on critical information sharing. The National
Commission on Terrorist Attacks upon the United States,
referred to as the 9/11 Commission, concluded that ``Current
security requirements nurture overclassification and excessive
compartmentalization of information among agencies. Each
agency's incentive structure opposes sharing with risks,
criminal, civil and internal administrative sanctions, but few
rewards for sharing information. No one has to pay the long
term cost of overclassifying information, though these costs
are substantial.''
Those costs are measured in lives as well as dollars.
Somewhere in the vast cache of data that never should have been
classified, and may never be declassified is that tiny nugget
of information that if shared, it could be used to detect and
prevent the next deadly terrorist attack. Recently enacted
reforms should help focus and coordinate disparate elements of
the so-called intelligence community to broaden our view of
critical threat information.
The previously ignored, but still unfunded public interest
declassification board has new authority to push for executive
branch adherence to disclosure standards, particularly with
regard to congressional committee requests. But those promising
initiatives still confront deeply entrenched habits and
cultures of excessive secrecy. The 9/11 Commission successfully
worked through security barriers to access and publish the
information they needed. But as soon as the Commission's legal
mandate expired, heavy-handed declassification practices
reasserted themselves. As a result, release of the final staff
report on threats to civil aviation was delayed, and the
version finally made public contains numerous redactions, some
of which needlessly seek to shield information already released
by other agencies.
The cold war was a struggle of the industrial age. The
global war against terrorism is being waged and must be won by
the new rules of the information age. Data and knowledge are
the strategic elements of power. With such a few keystrokes,
individuals and groups can now acquire technologies and
capabilities once the solve province of Nation States. Modern
adaptable networks asymmetrically attack the rigid hierarchical
structures of the past.
In this environment, there is security in sharing, not
hoarding information that many more people need to know. We
asked our witnesses this afternoon in our three panels to help
us assess the impact of current access restrictions on efforts
to create the trusted networks and new information sharing
pathways critical to our national security. We look forward to
their testimony and thank them for their presence.
At this time the Chair would recognize the ranking member
of the subcommittee, Mr. Kucinich.
[The prepared statement of Hon. Christopher Shays follows:]
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Mr. Kucinich. I thank the Chair.
Good afternoon to all the witnesses and to members of the
committee. Mr. Chairman, I believe in addition to the problem
that this committee brings to light about the over-use and
misuse in the classification of Federal documents, it could be
said that the real problem before us goes beyond that. It's not
the quantity of materials classified and declassified, it's not
about which words are missing or about the implausible
justifications based upon our national security. The real and
growing problem we must address is the reflexive secrecy
rampant through the administration.
The American people cannot get straight answers about the
situation in Iraq, about the treatment of detainees at Abu
Ghraib or at Guantanamo Bay, Cuba. The American people cannot
get the intelligence budget of the United States, the American
people cannot get the truth about Social Security. The American
people have a right to know and to get the unbiased facts from
their Government.
Congress also has a right to know, particularly this
oversight committee, which is charged to find waste, fraud and
abuse. Yet even before this committee we have heard a
Department of Defense official tell us that last August she
believed 50 percent of all materials are mis-classified at the
Pentagon. Some believe the number is higher.
Instead of making information available or sharing
information, the current administration has reversed the trend
toward openness started under the Clinton administration.
Instead of a presumption against classifying a document in case
of doubt with the use of a lower level of classification when
the appropriate level of classification was uncertain, this was
used during the Clinton administration, the current
administration's policy is simple: withhold the truth from the
public through what you could call hyperclassification.
The Bush administration has dramatically increased the
volume of Federal materials concealed from the American people.
The President's Executive Order 13292, issued in March 2003,
permitted officials to classify information when there was
doubt whether or not to do so, and allowed officials to
classify information at the more restrictive level when there
was a question as to the appropriate level. We now have new and
more levels of restricted access to information, such as the
``sensitive but unclassified'' and ``critical infrastructure
information'' designations. Instead of utilizing the
interagency security classification appeals panel established
by President Clinton, where historical records were
declassified at record rates and on a timely automated
schedule, this administration's Executive order has delayed and
weakened the system of automatic declassification and under-
utilized the appeals panel.
Most tellingly, this administration didn't even include
funds for the public interest declassification board in its
fiscal year 2006 proposed budget. The administration's
excessive use of classification restrictions on dissemination
and release of documents delays in declassifying materials and
disrespect toward open government is really a danger to our
democracy.
It's a common assertion by this administration that we need
to be secret to be safe. But the fact of the matter is, as has
been stated by one of the witnesses we are going to hear from,
we're losing protection by too much secrecy. And this climate
of secrecy is antithetical to a democratic society. This
climate of secrecy takes us toward a type of government which
is not democratic, which is profoundly undemocratic, which has
that kind of a stale, garbage-like whiff of fascism to it.
So this is a serious matter that is up for discussion
today. But we really need to go beyond it. Because while we're
sitting here discussing this matter, the administration is
moving ahead with policies, without the permission of the
American people, spending money without the permission of the
American people and cloaking it in a need for secrecy. And
while they're doing it, they're tearing the Constitution to
pieces.
[The prepared statement of Hon. Dennis J. Kucinich
follows:]
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Mr. Shays. I thank the gentleman. I agree with many of his
comments.
Mr. Marchant, our new vice chairman of the subcommittee, is
recognized, if he has an opening statement.
Mr. Marchant. Mr. Chairman, it's a privilege for me to be
on this subcommittee with you and be a vice chairman. As a
freshman, I'm employing the practice of listening and learning
and will have some questions later.
Mr. Shays. Hopefully we all will practice that. Thank you.
It's wonderful to have you on the committee and as vice
chairman.
Mr. Turner--I'm sorry, we did have a statement, so I'm
sorry, Mr. Waxman.
Mrs. Maloney, wonderful to have you on the committee and
the Chair would recognize you.
Mrs. Maloney. I yield to Mr. Waxman.
Mr. Shays. Mrs. Maloney defers and yields to Mr. Waxman,
the ranking member of the full committee. I guess that was an
anticipation of that, Mr. Waxman.
Mr. Waxman. Thank you, Mr. Chairman, for holding this
hearing and for your leadership in addressing the issue of
government secrecy. Incredibly, it seems to necessary to state
the obvious today: the Government belongs to the people. The
American people understand that some information must be kept
secret to protect the public safety. But when the Government
systematically hides information from the public, Government
stops belonging to the people.
Unfortunately, there have been times in our Nation's
history when this fundamental principle of openness has come
under attack. The Watergate era of the Nixon administration was
one of those times. We are now living through another.
Over the last 4 years, the executive branch has engaged in
a systematic effort to limit the application of the laws that
promote open government and accountability. Key open government
laws, such as the Freedom of Information Act, the Presidential
Records Act and the Federal Advisory Committee Act, have been
narrowed and misconstrued. At the same time, the administration
has greatly expanded its authority to classify documents, to
conduct secret investigations and to curtail Congress' access
to information.
Last fall, I released a report entitled Secrecy in the Bush
administration. This detailed many of these threats to the
principle of open government. And Mr. Chairman, I would like to
ask unanimous consent to put this report into the hearing
record for today.
Mr. Shays. Without objection, this report will be put into
the record.
[Note.--The minority report entitled, ``Secrecy in the Bush
Administration,'' may be found in subcommittee files.]
Mr. Waxman. Yesterday, I wrote a letter to Chairman Shays
that described a new threat to openness in government, the
administration's mis-use of rapidly proliferating designations,
such as sensitive but classified, and for official use only, to
block the release of important information. I would also ask
unanimous consent that
this letter be made a part of today's hearing as well, Mr.
Chairman, unanimous consent to make my letter to you part of
the record.
Mr. Shays. Yes, thank you, your letter will be part of the
record.
[The information referred to follows:]
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Mr. Waxman. Many of these new designations have been
created out of thin air by the administration. They do not have
a basis in Federal statute, and there are no criteria to guide
their application. It appears that virtually any Federal
employee can stamp a document ``sensitive but unclassified''
and there do not appear to be uniform procedures for removing
these designations. The examples we discovered are alarming.
The executive branch has been using these novel designations to
withhold information that is potentially embarrassing, not to
advance national security.
Last year I wrote a letter to Secretary Powell that
revealed that the State Department's annual terrorism report
was grossly inaccurate. This Government report claimed that
terrorist attacks reached an all-time low in 2003. In fact,
exactly the opposite was true. Significant attacks by
terrorists actually reached an all-time high.
To his credit, Secretary Powell admitted that mistakes were
made and required the issuance of a new report. Several months
later, the inspector general prepared a report that examined
what went wrong. The report was released to the public in one
version. And another version, a ``sensitive but unclassified''
version, was sent to certain offices in Congress. My staff
compared the two versions. They were identical except for one
difference. The ``sensitive but unclassified'' version reported
that the CIA played a significant role in preparing the
erroneous report. This information was redacted in the public
version.
I have a message for the administration. Admitting that the
CIA made a mistake is not a national security secret. Another
example involves the role that Under Secretary of State John
Bolton played in preparing an infamous fact sheet that
erroneously alleged that Iraq tried to import uranium from
Niger. The State Department wrote me in September 2003 that Mr.
Bolton ``did not play a role in the creation of this
document.'' But a ``sensitive but unclassified'' chronology,
which has never been released to the public, shows that
actually Mr. Bolton did direct the preparation of the fact
sheet and received multiple copies of the draft.
Apparently, sensitive but unclassified is also a code word
for embarrassing to senior officials. And here's an ironic
example. The Department of Homeland Security used the sensitive
but unclassified designation to withhold the identity of the
ombudsman that the public is supposed to contact about airline
security complaints. I suggested to Chairman Shays that this
subcommittee should investigate the mis-use of these
designations, and I am glad to report that he has agreed. In
fact, we are signing letters today seeking information from
several agencies about the way they use these new designations.
With his support, I hope we can impose some restraints on this
new form of government secrecy.
There are other issues I hope we can examine today. One
involves the process that was used to declassify important 9/11
Commission documents. Last month, we learned about long delays
in the declassification and release of key documents that
called into question statements made by now-Secretary of State
Condoleezza Rice and other senior administration officials.
These embarrassing documents were not released until after the
Presidential elections and 48 hours after Ms. Rice's
confirmation as Secretary of State. Today I hope we can learn
more about the delay in the release of these documents and
whether politics played any role.
Another important topic is the case of Sibel Edmonds, who
will testify on the third panel. Ms. Edmonds joined the FBI in
2001 as a linguist. But she was fired just a few months later
for warning her superiors about potential espionage occurring
with the Bureau. Last month, the Justice Department Inspector
General released an unclassified report that vindicated Ms.
Edmonds, finding that her core allegations were clearly
corroborated. Yet the Justice Department has repeatedly sought
to prevent inquiries into her case by citing secrecy concerns.
Indeed, government lawyers even argued that her legal efforts
to obtain redress should be thrown out of court to avoid the
risk of disclosing sensitive information.
Mr. Chairman, let me close by thanking you for holding this
hearing, for investigating the problematic, sensitive but
unclassified designation and for including Ms. Edmonds in the
hearing. This hearing and your actions demonstrate that
openness in government is not a partisan issue. The fact is,
there is bipartisan concern in Congress that the pendulum is
swinging too far toward secrecy. I look forward to the
testimony of the witnesses today.
[The prepared statement of Hon. Henry A. Waxman follows:]
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Mr. Shays. I thank the gentleman for his statement and for
the work of his staff. You have done a lot of work that you
have reason to be very concerned about.
At this time the Chair would recognize Mr. Turner, the
former vice chairman of the committee, now chairman of?
Mr. Turner. Federalism and Census. Thank you, Mr. Chairman,
and thank you for your leadership on this issue, and for your
assistance in my continuing on this subcommittee. This
obviously is a very important issue. Just this week I believe
we had a reminder of the issue of classification when we were
all receiving information from our news media about the
possible communication between Osama bin Ladin and Moussaoui,
and looking to possible potential attacks on the United States.
I think we all heard, as we looked at the news, and read the
news accounts, that we were informed that the Homeland Security
Department issued a classified bulletin to officials over the
weekend about the intelligence, which spokesman Brian--I'm not
even going to guess at that one--described as credible but not
specific. The indulgence was obtained over the past several
weeks, officials said.
Clearly, we've gotten to the point where we have become
desensitized to what is either classified or not. One of the
dangers of overclassification is that people no longer handle
the information sensitively. In this instance, within I believe
a day or two of it being issued, it's national news on CNN and
all of our newspapers, which of course means that our
adversaries, in addition to our friends, are reading it.
This is an important hearing that you are holding, in that
it will assist us in identifying what really is important and
needs to be protected information and hopefully assist us in
keeping it classified and confidential.
Thank you.
Mr. Shays. I thank the gentleman for his statement. At this
time, the Chair would recognize the gentlelady from New York
City.
Mrs. Maloney. Clearly, for me, nothing highlights better
the overclassification of government documents than the 9/11
Commission staff report dealing with civil aviation. The
release of this report was delayed for months beyond all
documents of the 9/11 Commission report, and is heavily
redacted. It is the only document that the 9/11 Commission
members received that had one word covered in ink. Every other
document that they received in their investigation was not
redacted, just the civil aviation one.
Not only is it ironic that the underlying 9/11 Commission
report spoke to the need to move from a need to know
environment to a need to share environment. I think it is
absolutely an outrage that large portions and parts of this
report are being kept from the American people, including the
September 11 families who fought so very, very hard to get
answers on why September 11 happened, and how we could work to
prevent it in the future, another future attack.
Although the 9/11 Commission staff completed its report on
August 26, 2004, the Bush administration refused to declassify
the findings until January 28, 2005, less than 48 hours after
Condoleezza Rice was confirmed as Secretary of State. During
the period between August 26th and January 28th, the Commission
was reportedly reviewing the Commission's report to determine
whether it contained any information that should be classified
in the interest of national security.
Problems with this process have been raised previously by
the 9/11 Commission. On February 9th, the New York Times
reported that the monograph had been turned over to the
National Archives nearly 2 weeks before it had been heavily
redacted. No notice was provided to me or any of the 25 Members
of Congress who had written the Justice Department for its
release. To say the least, the contents of the monograph were
troubling. It states that,
In the months before September 11, Federal aviation
officials reviewed dozens of intelligence reports that warned
about Osama bin Ladin and Al-Qaeda, some of which specifically
discussed airline hijackings and suicide operations.
Fifty-two intelligence reports from the FAA mentioned bin
Ladin or Al-Qaeda from April to September 10, 2001. Five of the
intelligence reports specifically mentioned Al-Qaeda's training
or capability to conduct hijackings. And two mentioned suicide
operations, although not connected to aviation. Despite these
warnings, the FAA, lulled into a false sense of security and
intelligence that indicated a real and growing threat leading
up to 9/11, did not stimulate significant increase in security
procedures.
This is what we know from public parts of the report. That
day Chairman Shays and I called on the Justice Department to
release the full, unredacted report, just like all previous
documents of the 9/11 Commission. The delayed release, the
ultimate timing of the release, the contents and the heavy
redactions raise very serious concerns to me. That is why I was
so pleased to join with the full committee ranking member,
Henry Waxman, calling for hearings on this matter. I look very
much forward to hearing from 9/11 Commissioner Richard Ben-
Veniste, who will be testifying on this, along with the other
witnesses.
In our letter, we raise concerns on whether the
administration mis-used the classification process to withhold,
possibly for political reasons, and it questions the veracity
of statements, briefings and testimony by then National
Security Advisory Condoleezza Rice, regarding this issue. I
have concerns that the administration abused the classification
process to improperly withhold the 9/11 Commission findings
from Congress and the public, until after the November
elections and the confirmation of Condoleezza Rice as Secretary
of State.
I really want to learn today what were the specific
rationales for each redaction in the report, and were these
redactions appropriate. I have one example that is on display
right now, where no one can argue that it is not over-
classification. On this board you can clearly see the public
testimony of Mike Canavan, a top FAA official before the 9/11
Commission on May 23, 2003. On this board is the same testimony
partially redacted. The testimony that is blacked out reads,
``We are hearing this, this, and this from this organization.
It was just a gain in the chatter piece, so to speak.''
So I truly do not understand why public testimony that is
released to the public could ever end up covered by black ink
and officially redacted.
With regard to our questions surrounding Secretary Rice,
during her tenure as President Bush's national security
advisor, she made several categorical statements asserting that
there were never any warnings that terrorists might use
airplanes and suicide attacks. One possibility is that
Secretary Rice was unaware of the extensive FAA warnings when
she appeared before the press and testified before the 9/11
Commission. This would raise serious questions about her
preparation.
Another possibility is that Secretary Rice knew about the
FAA warnings but provided misleading information to the
Commission. Neither of these possibilities would reflect well
on Secretary Rice. Perhaps there are other, more innocent
explanations for these seeming inconsistencies.
I look forward to the testimony of our witnesses, and I
hope to find out how, when and why this document was
classified. Finally, I would like to thank Chairman Shays, in
accommodating our request for including Sibel Edmonds as a
witness. I would like to welcome her. She will be testifying
publicly for the first time ever before Congress, despite the
fact that she was wrongly fired by the FBI 3 years ago for
trying to do her patriotic duty by raising concerns with
possible espionage within the FBI.
Even though the Justice Department Inspector General found
that her claims had merit, the administration to this day has
not fully investigated these serious issues, and amazingly, has
still not made Ms. Edmonds whole. I hope that this situation
will change, and I look forward to understanding how new
designations that have no basis in Federal law or statute came
into existence. Secrecy in government, particularly on public
policy issues, ones from which we want to learn in order to
prevent such actions in the future, are very, very serious, and
I welcome the chairman and the ranking member's efforts. I'm
glad to join them in this effort.
Thank you.
[The prepared statement of Hon. Carolyn B. Maloney
follows:]
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Mr. Shays. Before recognizing our other three members, who
will have as much time as they would like, I do want to point
out that Admiral McMahon has somewhat of a crisis meeting at
the White House; in other words, this is not a typical meeting,
you are being asked to be there for certain events that have
happened today. And you will be leaving at 2:30. I just want
the members to know that. I'm told that we will have votes at
2, which means they'll leave the machine open, so he'll
probably get to leave at 2:15. So I'd just like the Members to
be aware of that, but only because that should be information
you might want to know.
Mr. Van Hollen, and then we'll go to Mr. Higgins and then
to Mr. Ruppersberger.
Mr. Van Hollen. Thank you, Mr. Chairman. I will be brief,
just two things. First, with respect to classified information
and use of classified information, abuse of classified
information, there are two separate issues, and both identified
by the 9/11 Commission report. One is the
overcompartmentalization of legitimately classified
information. They focus very much on the importance of sharing
across agencies, because it doesn't do us any good in
protecting our national security if one agency is sitting on a
critical piece of the puzzle that when combined with another
piece of the puzzle gives us a fuller picture.
Then of course there is the issue that we're looking at
today, which is the overclassification of information in
general. I want to thank the chairman for all his leadership on
this issue and just say, it always amazes me to have briefings
by Secretary Rumsfeld and others in this administration, and
frankly in past administrations, in previous jobs as well,
where they classified as secret or top secret, and you get into
the room and you've heard what just happened had been reported
on CNN or Fox News or whatever it may be, or you read it in the
newspaper the next day.
It does breed a lot of cynicism about the abuse of
classified information. I see it, it's just constant. Secret
information is in the newspapers often before it's told to
Members of Congress. I hope that we can develop a system that
truly classifies the information that is critical to protect in
our national security and not classify information that's an
important part of the public debate in an exchange of views
which is also essential to protecting our national security.
Thank you, Mr. Chairman.
Mr. Shays. I thank the gentleman for his statement.
Mr. Higgins, it's wonderful to have you as part of this
committee.
Mr. Higgins. I have no questions at this time, Mr.
Chairman, thank you.
[The prepared statement of Hon. Brian Higgins follows:]
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Mr. Shays. Thank you very much.
With that, I will announce our witnesses. I don't think Mr.
Ruppersberger is here.
We have Mr. J. William Leonard, Director, Information
Security Oversight Office, National Archives and Records
Administration. We have Rear Admiral Christopher A. McMahon,
Acting Director, Departmental Office of Intelligence, Security
and Emergency Response, Department of Transportation; and Mr.
Harold Relyea, Specialist in American National Government,
Congressional Research Service, Library of Congress.
Gentlemen, if you will stand up, we will swear you in right
away. As you know, we swear in all our witnesses.
Raising your right hand, do you solemnly swear or affirm
that the testimony you will give before this subcommittee will
be the truth, the whole truth and nothing but the truth?
[Witnesses sworn.]
Mr. Shays. Note for the record our three witnesses have
responded in the affirmative. I ask unanimous consent that all
members of the subcommittee be permitted to place an opening
statement in the record and the record will remain open for a
few days for that purpose. Without objection, so ordered.
I ask further unanimous consent that all witnesses be
permitted to include their written statements in the record.
Without objection, so ordered.
I thank the cooperation of the subcommittee, and Mr.
Leonard, you have the floor.
STATEMENTS OF J. WILLIAM LEONARD, DIRECTOR, INFORMATION
SECURITY OVERSIGHT OFFICE, NATIONAL ARCHIVES AND RECORDS
ADMINISTRATION; REAR ADMIRAL CHRISTOPHER A. McMAHON, U.S.
MARITIME SERVICE, ACTING DIRECTOR, DEPARTMENTAL OFFICE OF
INTELLIGENCE, SECURITY AND EMERGENCY RESPONSE, DEPARTMENT OF
TRANSPORTATION; AND HAROLD C. RELYEA, SPECIALIST IN NATIONAL
GOVERNMENT, CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF CONGRESS
STATEMENT OF J. WILLIAM LEONARD
Mr. Leonard. Thank you, Mr. Chairman, and I appreciate your
holding this hearing today and for inviting me.
Our Nation and our Government, of course, are profoundly
different in a post-September 11 world. Our citizens' sense of
vulnerability has increased, as have their expectations of
their Government to keep them safe. In each situation,
information is crucial. On the one hand, Americans are
concerned that information may be exploited by our country's
adversaries to harm us. On the other hand, impediments to
information sharing among Federal agencies and with State and
local and private entities need to be continuously addressed in
the interest of homeland security.
Even more so, the free flow of information is essential if
citizens are to be informed, and if they are to hold their
Government accountable. In many regards, our Government is
confronted with the twin imperatives of information sharing and
information protection, two responsibilities that are contained
in her intention but are not incompatible.
I direct the Information Security Oversight Office under
two Executive orders and applicable Presidential guidance, my
office has substantial responsibilities with respect to
classification of information by agencies within the executive
branch. It is Executive Order 12958, as amended, that sets
forth the basic framework and legal authority by which
executive branch agencies classify national security
information.
Pursuant to its Constitutional authority, in this order the
President authorizes a limited number of officials to apply
classification to certain national security related
information. This authority is an essential and proven tool for
defending our Nation. The ability to deceive and surprise the
enemy can spell the difference between success and failure on
the battlefield.
Similarly, it's nearly impossible for intelligence services
to recruit human sources who often risk their lives aiding our
country or to obtain assistance from other countries'
intelligence services unless such sources can be assured of
complete and total confidentiality. Likewise, certain
intelligence methods can only work if the adversary is unaware
of their existence.
Classification, of course, can be a double edged sword.
Limitations on dissemination of information that are designed
to deny information to the enemy on the battlefield can
increase the risk of a lack of awareness on the part of our own
forces, contributing to the potential for friendly fire
incidents or other failures. Similarly, imposing strict
compartmentalization of information obtained from human agents
increases the risk that a Government official with access to
other information that could cast doubt on the reliability of
the agent would not know of the use of that agent's information
elsewhere in the Government.
Simply put, secrecy comes at a price. I continuously
encourage agencies to become more successful in factoring this
reality into the overall risk equation when making
classification decisions.
Classification is an important fundamental principle when
it comes to national security. But it need not and it should
not be an automatic first principle. In certain circumstances,
even with respect to national security information,
classification can run counter to our national interests. The
decision to classify information or not is ultimately the
prerogative of the agency original classification authorities.
The exercise of agency prerogative to classify certain
information has ripple effects throughout the entire executive
branch. For example, it can serve as an impediment to sharing
information with another agency, with State or local officials,
or with the public, who generally need the information.
In delegating classification authority, the President has
established clear parameters for its use and certain burdens
that must be satisfied, which I have detailed in my prepared
written testimony. As I testified the last time I appeared
before this subcommittee, it is my view that Government
classifies too much information. Primarily, I believe because
classifieds often becomes an automatic decision rather than an
informed, deliberate decision.
My official oversight responsibilities rest solely with
classified national security information and do not extend to
the various information access restrictions designations used
by agencies to control some unclassified information.
Nonetheless, as a minimum, I believe that proven effective
attributes of the classification system can be used as
benchmarks when evaluating any information protection
framework. I have listed such attributes in my prepared written
testimony.
Again, I want to thank you for inviting me here today, Mr.
Chairman, and I would be happy to answer any questions that you
or other Members may have.
[The prepared statement of Mr. Leonard follows:]
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Mr. Shays. Thank you, Mr. Leonard. Admiral McMahon, you
need to bring that mic a little closer, sir.
STATEMENT OF REAR ADMIRAL CHRISTOPHER A. McMAHON
Admiral McMahon. Thank you, Mr. Chairman, for your kindness
in realizing I have to be in the White House in the next hour.
Mr. Chairman and members of the subcommittee, I'm Rear
Admiral Christopher McMahon, U.S. Maritime Service, U.S.
Department of Transportation. By way of introduction, I have
just recently returned from Baghdad, where I have been serving
as the transportation counselor and director of the Iraqi
Reconstruction Management Office of Transportation at the
American Embassy. In these positions, I have been responsible
for Iraqi reconstruction in all modes of transportation.
I currently serve in DOT's Office of Intelligence, Security
and Emergency Response, where in this capacity, among other
things, I help advise the Secretary on the Department's
contacts with the intelligence community, including the
Department of Homeland Security and other Federal agencies
involved with homeland security. I am honored to be here to
discuss with you how the Department of Transportation is
balancing the needs for secrecy necessary to ensure homeland
security with the public's right to know its Government's
activities.
At DOT, we adhere to the requirements of the Freedom of
Information Act in making determinations about what information
sought by the public may be disseminated and what may be
lawfully withheld. We use FOIA not only to determine our
responses to public information requests, but also to advise
our employees on how they should treat the information they
handle. In the context of protecting information vital to
homeland security, our principal tool is the authority given to
us and to DHS to designate information as security sensitive
information [SSI].
At DOT, we use this designation only to refer to
information that Congress has mandated that we protect. We also
have an administrative safeguarding designation for sensitive
information that is not necessarily security related that we
label for official use only [FOUO], which I will discuss later
in my testimony.
When Congress created the Department of Homeland Security
under the Homeland Security Act of 2002, it not only
transferred TSA from DOT to DHS, along with it the authority to
establish SSI, but this same law gave similar authority to
establish SSI within DOT. I wish to emphasize that SSI is not a
security classification; hence, individuals need not have
formal national security clearance to access SSI. What they
must have is a need to know, and they must provide assurances
that they understand and will comply with regulations related
to the possession and permissible use of SSI.
In this way, we can share with other Federal agencies,
State, local and tribal governments, industry and other persons
with a need to know vital information related to homeland
security without the fear that this information may be released
to unvetted requestors.
When Secretary Mineta confronted the question of how SSI
authority was to be handled within DOT, Secretary Mineta took
five very affirmative steps. First, he delegated the authority
to designate information as SSI to the heads of all the
operating entities within DOT, that is the administration, as
it pertained to their own modes of transportation, but subject
to the guidance and direction of the director of intelligence,
security and emergency response, and from the Department of
Transportation's general counsel's office, who is also the
departmental officer for FOIA.
Second, the Secretary specifically directed that the
Department not use this authority to evade its responsibilities
under FOIA by stating, and I quote Secretary Mineta in part,
``finding the right balance between protecting what needs to be
protected and revealing what should be revealed is important. I
expect all of us to give it the attention it deserves.''
Third, Secretary Mineta further directed that we report to
him regularly and review any case in which his authority is
used to make a decision either to designate information as SSI
or not to do so. Fourth, he asked the DOT Inspector General to
review DOT's implementation of its SSI authority after 1 year
to ensure that SSI designation process that we have in the
Department is being used properly and is not being used to
exempt information from public disclosure.
Finally, the Secretary directed that we coordinate with the
Department of Homeland Security on how our two departments will
use our parallel SSI authorities. My staff is learning day in
and day out how truly challenging that charge from Secretary
Mineta is, and that is to find the right balance between
protecting what needs to be protected and revealing what should
be revealed. However, as we use this authority to protect the
American people, I have emphasized to the heads of our
operating administrations that they keep in mind that our
actions must always conform to the law and with the Secretary's
admonition that we not use this authority to restrict
unreasonably the public's right to know how we are carrying out
our duties.
I want to discuss for a moment, and I've heard it mentioned
in your statements, the designation, the administrative
designation for sensitive information that we at DOT refer to--
yes, sir?
Mr. Shays. Admiral, if you could try to finish up in a
minute, because you will be leaving so quickly.
Admiral McMahon. Sure. I want to raise a final issue, and
that is the Department's issue on the September 11 testimony.
Questions have been raised as to the role, whether or not FAA
used or the Department of Transportation used its authority to
classify information in the interest of national security. The
answer is no, we did not. In my testimony you will see the
explanation for that.
I would also like to emphasize one last point, and that is,
we have very limited SSI in place now at DOT. There are only
two documents that are SSI that we have designated SSI, and in
2004 and 2005, there are no documents that we designated
secret, which I think is important. So our use of SSI and
secret has been extremely limited in the Department of
Transportation.
I will be pleased to respond to any questions that the
committee has.
[The prepared statement of Admiral McMahon follows:]
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Mr. Shays. Thank you. I'm going to go out of order. Mr.
Relyea has graciously agreed to let questions be asked of you,
primarily, Admiral, before you go. Candidly, since some of my
Democratic colleagues have more questions to ask of you than we
may have, we're going to start with them and keep that order,
because we only have about 25 minutes for you.
At this time the Chair would recognize Mr. Waxman.
Mr. Waxman. Thank you very much, Mr. Chairman, for this
courtesy, and Mr. Relyea, thank you also as well. The Admiral
did indicate he has to leave, and I wanted to be able to ask
him some questions.
I know it was short notice and you're new on the job, so I
thank you for directly addressing the declassification of the
9/11 Commission staff report. As you know, the 9/11 Commission
staff finished the report in August. Reviewing FAA warnings to
airport security officials, the report found that ``the FAA had
indeed considered the possibility that terrorists would hijack
a plane and use it as a weapon.'' Although this report was
finished in August, the administration didn't release it until
January 28, 2005. They said they were reviewing it for security
classification issues.
This became an issue for two reasons. First, the Commission
report undercut previous statements by Condoleezza Rice that
nobody could have predicted that terrorists would use a
hijacked airplane as a missile. Second, the report was withheld
until 48 hours after she was confirmed as Secretary of State in
January. This could have been a coincidence, or it could have
been a mis-use of the classification system. We don't know.
But I have a list of short questions, so let me get right
to them. First, you said the Justice Department asked the
Transportation Department and the FAA to review the document.
Who at the Justice Department was in charge of this
declassification review process?
Admiral McMahon. Specifically, sir, I do not know the
individual in charge. I would be happy to provide that
information to you as appropriate.
Mr. Waxman. Thank you very much.
Who made the final decision on what to declassify and when?
Admiral McMahon. Similarly, I don't have the specific
information, but we can certainly provide that for you.
Mr. Waxman. You said the FAA finished its review in
September. Did the FAA recommend redacting any information?
Admiral McMahon. The FAA, under the, the FAA does not have
the authority now to do that. What the FAA did, as indicated in
my opening statement, it made some recommendations to the
Department of Justice and that was it. It was actually the
Department of Justice that took it from there, as I understand
it.
Mr. Waxman. Do you know whether there were recommendations
for redactions?
Admiral McMahon. I am not aware of that, sir.
Mr. Waxman. Are there any differences in the redactions the
FAA recommended, if they did recommend some, and the final
redactions in January?
Admiral McMahon. I am not aware of that, sir.
Mr. Waxman. The 9/11 Commission staff say they wrote this
report so it could be fully declassified, like all the others,
and that the Justice Department allowed them to retain their
security clearances so they could address these classification
issues. Did the FAA ever consult and negotiate with the staff
of the 9/11 Commission who wrote the report?
Admiral McMahon. I am not aware of that, but I will say
that, which I think is relevant, that the 9/11 Commission did
note, ``The Commission found no evidence that the FAA knew or
possessed intelligence indicating that bin Ladin, Al-Qaeda or
Al-Qaeda affiliates or any other group were planning to hijack
commercial planes in the United States and use them as
weapons.'' That was in the Commission report, as I understand
it.
Mr. Waxman. Did the FAA or Justice Department ever suggest
language changes that might have avoided classification?
Admiral McMahon. I am aware of none.
Mr. Waxman. During this time, did the Transportation
Department or FAA have any contact with White House officials
or National Security Council officials regarding this
declassification process, and if so, can you please describe
these contacts?
Admiral McMahon. I am aware of no such contact.
Mr. Waxman. You said FAA recommended that Justice consult
the Department of Homeland Security. You also said that in the
summer of 2004, Justice also asked several other agencies to do
this review at the same time. Was Homeland Security left off
the original list of agencies the Justice Department originally
contact?
Admiral McMahon. I do not have that knowledge.
Mr. Waxman. Do you know whether the Justice Department ever
contacted the Department of Homeland Security?
Admiral McMahon. No, I do not.
Mr. Waxman. Did the FAA have any interaction with the
Department of Homeland Security?
Admiral McMahon. I do not believe so, sir. I'm not sure.
Mr. Waxman. OK. I appreciate your answers to the extent you
are able to answer these questions. If you get other
information, would you supply it to us for the record?
Admiral McMahon. I certainly will, sir.
Mr. Waxman. Thank you so much. Thank you, Mr. Chairman.
Mr. Shays. You have a very fine reputation, and it would be
appreciated, in any of the questions that you do have knowledge
of or gain knowledge of, that you would let our subcommittee
know and we would definitely pass it on to Mr. Waxman.
Admiral McMahon. Yes, sir, we will certainly do that.
Mr. Shays. Thank you.
The Chair at this time would recognize Mr. Marchant.
Mr. Marchant. Admiral, how do you determine what
information can be stamped SSI?
Admiral McMahon. There are a number of procedures and
guidelines that are spelled out, that are quite specific. In
the broadest terms, as I understand it, SSI information within
the Department of Transportation pertains to information that
could harm the transportation system. But it's not necessarily
a threat to national security, per se. The next designation
above that would be secret, and that's where it's a national
security issue.
But more specifically, there are guidelines that we can
provide you.
Mr. Marchant. You mentioned just a little earlier that
there were only a couple of items now that are marked SSI or
marked secret. Are there two categories there?
Admiral McMahon. There are. Since we have been given the
authority in May 2004, and we implemented it in January, there
have been two documents that we have designated SSI. They have
gone through our vetting process, in other words, through the
mode, through the Office of Intelligence Security and Emergency
Response and through our general counsel's office, two
documents.
Mr. Marchant. Does the DHS have the same criteria, same
procedure?
Admiral McMahon. As I understand it, DHS has a similar
authority. How they handle it within the Department of Homeland
Security, I am not aware. Our Secretary has given us guidance
on how he wants it done and the Secretary within the Department
of Transportation.
Mr. Marchant. When you go up into the category of secret,
are there are lot of those documents?
Admiral McMahon. The secret designation, again, how you
designate something secret, there are only five individuals
within the Department of Transportation that have that
authority. They have to use designations which are much more, I
think, rigid.
But we don't use that. Even though we have that authority,
we don't really use it very often. In fact, in 2004 and 2005,
there is no document that we have designated as secret. And by
the way, one last thing on the secret, we report any secret
document, as a check, we have an office that registers that and
reports it to the National Archive Information Security Office.
So there's a check on that as well.
Mr. Marchant. Do you think that DOT has reached the right
balance between protecting what needs to be protected and
revealing what should be revealed?
Admiral McMahon. Yes, sir, I do, and I think this issue
that you mentioned is extremely important to Secretary Mineta.
He has emphasized it, as you have seen in my opening testimony.
The five parameters that he uses are extremely rigid. We are
under pretty strict orders to do just that.
Mr. Marchant. Thank you, Mr. Chairman.
Mr. Shays. I thank the gentleman.
At this time the Chair would recognize for 5 minutes the
gentlelady from New York, Mrs. Maloney.
Mrs. Maloney. Thank you for your testimony. Doesn't the
example that I showed earlier on the poster boards that showed
the public testimony, testimony that was given publicly, was
being redacted? I think that example alone casts very serious
doubts as to the process used to redact the document in the
first place, wouldn't you agree?
Admiral McMahon. Well, ma'am, I can't really speak to the
document that you're referring to. I can only speak to what I'm
familiar with within the Department of Transportation. As I
just stated, our parameters and guidelines are extremely
strict.
Mrs. Maloney. I would assume that material that's already
available to the public, testimony that's been given publicly
and released to the public, I would assume there would be a
guideline that public testimony that's released to the public,
part of the public record, should not be redacted. That's just
common sense.
Admiral McMahon. Yes, ma'am.
Mrs. Maloney. And your very strict guidelines.
Admiral McMahon. And I can't really comment on it, except
to say that again, restate what the 9/11 Commission stated that
they found no evidence that FAA had done that or had withheld
information, as you indicate.
Mrs. Maloney. If you could go back and--all right, Mr.
Shays.
Mr. Shays. What's helpful for us, Admiral, is you have
experience in this area, so your opinion about the issue,
whether it relates specifically to your own issue, would be
helpful. So I mean, I realize you want to be somewhat cautious.
But we have you here as a witness to give us your opinion about
the concept.
So when I looked at that document that Mrs. Maloney had up,
it did seem absurd times 10. I would think your opinion would
have been somewhat similar, that you could qualify it. Was
there anything in that language that would have suggested it
needed to be redacted, any little thing?
Admiral McMahon. Mr. Chairman, I would have to--and I would
be happy to offer that, but unfortunately I don't have enough
knowledge of that particular document to really give you I
think----
Mr. Shays. We were talking about that one sentence. I mean,
if anything, it was just bad English, perhaps.
Admiral McMahon. Sir, I would have to look at it and study
it more carefully to give you an opinion.
Mr. Shays. OK, well, we may have you back to do that.
At any rate, Mrs. Maloney.
Mrs. Maloney. Here it is, right here, did the FAA redact
this sentence? Did they?
Admiral McMahon. I'm not aware that the FAA did redact it,
ma'am.
Mrs. Maloney. Well, then, can you tell me who did redact
it?
Admiral McMahon. I cannot provide that information.
Mrs. Maloney. How can we find out?
Admiral McMahon. I will certainly ask our staff to look
into that for you, ma'am.
Mrs. Maloney. Would you find out who redacted it and why
they redacted it?
Admiral McMahon. I would be very delighted to do that,
ma'am.
Mrs. Maloney. I don't see how saying, we're hearing this,
this, this and this for this organization, it was just to gain
a piece of chatter, I don't see how that endangers national
security, do you?
Admiral McMahon. Not what you're highlighting, ma'am. We'll
provide you that information.
Mrs. Maloney. What defense could you or anyone possibly
give for the civil aviation document to be so heavily redacted?
And I repeat, it was the only document that was redacted. All
the others going to the 9/11 Commission were not redacted.
And really what we need, Mr. Chairman, in looking at this,
is we need a review board to look at the redactions. I thought
the testimony of Mr. Leonard earlier, when he said the
redactions had become almost ``automatic,'' and people were
automatically redacting things, it's just very, very troubling.
I'd like it answered.
I see my time is up. But were you surprised at how long it
took the civil aviation monograph to be released? Every other
document had been released, and then of course, they couldn't
release it until after the confirmation. Why did it take so
long? Do you know why it took so much longer than all the other
documents?
Admiral McMahon. No, ma'am, I cannot answer that.
Mrs. Maloney. Were you surprised to see such large segments
of the report redacted?
Admiral McMahon. I don't have enough specific information
to answer the question. My staff will be in touch with yours to
provide whatever information we can, ma'am.
Mr. Shays. Let me just thank the gentlelady for her
questions and say, Admiral, you said you would come back with
some information, which I know you will.
Admiral McMahon. Yes, Mr. Chairman.
Mr. Shays. I think that will be very helpful to the
subcommittee.
Mr. Higgins, you have technically the floor. I technically
have, but I recognize you if you would like to yield to Mr.
Waxman or--would you like to do that?
Mr. Waxman. Thank you, Mr. Higgins. I wanted to ask some
questions that Congressman Van Hollen wanted asked.
Admiral McMahon. Yes, sir.
Mr. Waxman. That's about the public statements made by
Condoleezza Rice. On May 16, 2002, Ms. Rice held a press
conference at the White House to address the question of what
the Government knew before September 11th about the likelihood
of a terrorist attack. She stated, ``I don't think anybody
could have predicted that these people would try to use an
airplane as a missile, a hijacked airplane as a missile.'' This
was a very significant statement coming from the President's
National Security Advisor. Presumably she would not have made
it without thoroughly researching the claim first.
Admiral McMahon, you were the head of intelligence and
security for the Department of Transportation, which includes
the Federal Aviation Administration. Your office would have
been the logical first stop for Ms. Rice. Prior to holding her
press conference, did Ms. Rice ever contact you or your
predecessors to ask what the Department of Transportation, what
the FAA knew about the possibility that terrorists might use
hijacked airplanes and suicide attacks?
Admiral McMahon. No, sir, she did not.
Mr. Waxman. About 3 weeks later, on April 8, 2004, Ms. Rice
testified before the 9/11 Commission, this was a rare event, a
sitting National Security Advisor testifying under oath, and
I'm sure Ms. Rice did a lot of preparation before that. Yet she
still maintained that, ``this kind of analysis about the use of
airplanes as weapons actually was never briefed to us.''
Between the time she held her press conference at the White
House and when she testified before the 9/11 Commission, did
Ms. Rice ever consult with you, your predecessor or anyone else
in your office?
Admiral McMahon. Certainly not with me, sir, and to my
knowledge, no one at the Department of Transportation.
Mr. Waxman. Let me ask it more broadly, then. Did anyone at
the National Security Council consult with anyone in your
office before Ms. Rice made either of her public statements?
Admiral McMahon. To my knowledge, no.
Mr. Waxman. OK. Thank you very much. Thank you, Mr.
Chairman.
Mr. Shays. Admiral, we learned in the last hearing we had,
and I'll be happy to engage your other two colleagues in this
question as well, that we, the estimate of overclassification
was between 50 and 90 percent. I want each of you to tell me as
succinctly as you can what is the negative of
overclassification? I'll start with you, Mr. Leonard.
Mr. Leonard. To me it's very clear, Mr. Chairman. The
negative goes to the very integrity of the process itself. The
thing that protects information is not the markings, it's not
the safes, it's not the alarms on elaborate skiffs, it's
people. We're dependent on people to exercise proper judgment
and to be familiar with the rules and to understand them and to
adhere to them.
Once individuals start losing faith in the integrity of the
process, we have an uphill road in terms of having people
comply.
Mr. Shays. Thank you. Admiral.
Admiral McMahon. Sir, I think this goes back to what the
third parameter that Secretary Mineta gave us in determining
security sensitive information, which was finding the right
balance between protecting what we need to protect and enabling
the public to know how its government functions. So the
statement overclassifying, I think the Secretary is addressing
just that concern, let's not overclassify, let's be secure but
balanced.
Mr. Shays. Mr. Relyea, you've been doing this kind of work
for how long?
Mr. Relyea. Thirty-three years.
Mr. Shays. You're a real expert on this issue, and it's
wonderful to have you here. We will look forward to your
testimony when we get back from voting.
Can you just share with me the negative, the primary
negative of overclassification?
Mr. Relyea. Probably there's three things. I think Mr.
Leonard struck on the first point, that's the integrity.
Integrity, that's the first factor. If everything was
classified, I think it was Potter Stewart who said it, then
nothing is classified, so the system goes to smash.
There is the factor here of today, where the system is so
embedded in cold war thinking that we never envisioned what the
9/11 Commission called for, not stepping over the need to know
to a need to share. So we----
Mr. Shays. Can you define that difference?
Mr. Relyea. Yes. I think it's a big change in culture.
Those who are in the classification business, who use that as a
tool, who manage it, who monitor it, this is a big change of
thinking, I think, for them. Because in the past it was to keep
things compartmentalized, not necessarily let the information
flow too widely.
The third factor is a very simple one which probably many
of you on the subcommittee would be aware of in terms of your
jurisdiction at full committee, and that's cost, efficiency and
economy. This is costing a lot of money. You have to have the
safes, you have to have the clearances, top secret secret
clearance today is what, $2,500 I think, per person. It's very
expensive. So you have costs of dollars, you have costs of
integrity and you have ultimately cost of share.
Mr. Shays. Thank you. In the short time I have left, I want
to know, what is, I know all the powers that want us to
classify, in other words, all the pressures to classify from
bad language, to not being embarrassed to real needs and so on.
But what I want to know is, what is the pressure to not
overclassify? I mean, it just seems to me we don't have a
proper balance. There is everything stacked against just having
a balance. I'd like, maybe I'll have you start, Mr. Relyea.
Mr. Relyea. I think you're right, if you ingrain in a
person that their whole job is to manage something that's
classified, it's an available tool that you don't think too
much about, because you lean on the side of protection, which
was certainly there in the Reagan Executive order. There's not
much of a break. You can talk about people challenging it, I
don't think that happens very often in the system. You can have
an oversight body, such as Mr. Leonard has, but it's limited in
terms of its resources, I think, and how far it can get in
terms of stopping this type of phenomenon and how you stop it.
Mr. Shays. Admiral.
Admiral McMahon. Sir, I think that we at the Department of
Transportation are certainly cognizant of the fact that DHS is
responsible for transportation security. But that said,
transportation security is on our mind, too. So again, I think
we need to strike a balance between trying to do what we can do
to protect the security of the transportation system and enable
the public to have the right to know how its Government is
working. Again, I think Secretary Mineta has given us extremely
strict parameters on doing just that. The fact that we don't
classify a lot of documents, that we have none on the secret
level in 2004-2005 and only two security sensitive documents in
the last several months since we've had the authority I think
speaks to that.
Mr. Shays. And the value of that is you certainly know how
to protect the few that you do have.
Admiral McMahon. Yes, sir.
Mr. Shays. Mr. Leonard.
Mr. Leonard. Part of the challenge is that I think the
whole premise is set up on the basis of a false dichotomy, and
that is, I need to protect this information, because its
disclosure would damage national security. But there is the
problem that often times, the withholding or the hoarding of
the information can similarly damage the national interest. I
don't like the word, but I'll use it anyhow, it's literally a
cultural shift, a frame of mind that needs to occur in order to
get that recognition that the act of withholding can be just as
damaging if not even sometimes more damaging than the
disclosure of information.
Mr. Shays. Thank you. We have about 5 more minutes, Mr. Van
Hollen, would someone check the TV? We're going to adjourn,
Admiral, you're going to have a meeting at the White House, so
you're not coming back. We'll start with Mr. Relyea, your
statement, and we have some more questions.
Thank you very much. We stand adjourned.
[Recess.]
Mr. Shays. Mr. Relyea, we are now back in session and we
would love to hear your statement. Thank you very much. Mr.
Relyea, you have the floor for your statement and thank you for
your patience.
STATEMENT OF HAROLD C. RELYEA
Mr. Relyea. Mr. Chairman, members of the subcommittee,
there can be little doubt at this late date that the terrorist
attacks of September 11, 2001 have prompted rethinking and
continuing concern about various aspects of the internal
security, that is the homeland security, of the United States,
not the least of which includes the public availability of
information of potential value to terrorists for either the
commission of their acts or for warning them of ways of their
being detected.
Often times it has not been clear to what extent if any an
attempt was made to weigh citizen needs for information vis-a-
vis denying its availability to terrorists, or if thoughtful
consideration was given to alternative limits short of total
restriction. Recently, a December 2004 report from the Heritage
Foundation observed, ``at the very least, such wholesale
withdrawal of information seems arbitrary and undermines
important values of Government openness, the development of
electronic Government to speed the delivery and lower the costs
of Government services and public trust.''
A primary tool for protecting information in the post-
September 11 environment is security classification. One may
not agree with all of its rules and requirements, but that is
an expression of policy and procedure. Its attention to detail
is commendable. The operative Presidential Directive, Executive
Order 12958, as amended, for instance, defines its principal
terms, exclusive categories of classifiable information are
specified, as are the terms of the duration of classification
as well as classification prohibitions and limitations.
Classified information is required to be marked appropriately,
along with the identity of the original classifier, the agency
or office of origin, and a date or event for declassification.
Authorized holders of classified information who believe
that its protected status is improper are encouraged and
expected to challenge that status through prescribed
arrangements. Mandatory declassification reviews are also
authorized to determine if protected records merit continued
classification at their present level, a lower level or at all.
An information security oversight office provides central
management and oversight of the security classification
program.
Not long ago, in the closing days of January, GCN Update,
the online electronic news service of Government Computer News,
reported that dozens of classified Homeland Security Department
documents had been accidentally made available on a public
Internet site for several days due to an apparent security
glitch at the Department of Energy. Describing the contents to
the compromised materials and the reactions to the breach, the
account stated, ``The documents were marked for official use
only, the lowest secret level classification.'' The documents,
of course, were not security classified, because the marking
cited is not authorized by Executive Order 12958.
Interestingly, however, in view of the fact that this mis-
interpretation appeared in a story to which three reporters
contributed, perhaps it reflects to some extent the current
state of confusion about the origin and status of various
information control markings which have appeared of late.
However, as my prepared remarks indicate, such markings are not
new. Over three decades ago, another subcommittee of the
Committee on Government Reform, known then as the Committee on
Government Operations, explored these markings and the
difficulties they created. Those difficulties are again with us
today.
Analyses by the Jason Program office of the Mitre Corp.,
the Heritage Foundation and the Federal Research Division of
the Library of Congress have decried the introduction of the
undefined sensitive but unclassified marking and other such
labels. Assessments of the variety and management of current
information control markings, other than those prescribed for
security classifications, are underway at CRS and the
Government Accountability Office. Early indications are that
very little of the attention to detail that attends the
security classification program is to be found in other
information control marking activities. Key terms often lack
definition. Vagueness exists regarding who is authorized to
apply markings, for what reasons and for how long. Uncertainty
prevails concerning who is authorized to remove the markings
and for what reasons.
Options to remedy the situation might include a
circumscribed and particularized legislative authorization for
some such marking or markings, or a legislative limitation or
restriction of the use of such markings. These choices of
course are open to discussion.
Thank you for your attention, and I welcome your questions.
[The prepared statement of Mr. Relyea follows:]
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Mr. Shays. Thank you very much.
We're just going to start over again, if any of the Members
have questions for Mr. Leonard or Mr. Relyea. I would just ask,
I am unclear, and I want a little bit more explanation, I have
heard your testimony which says we have a process in place to
know when to classify and know when not to, we have rules and
we have a process. But what I'm not hearing is, if it's
balanced, and if it really can work well. Because I don't think
it's working well now. So I guess my first question is, I made
an assumption from your testimony that it is not working well.
Is that a correct assumption, Mr. Leonard?
Mr. Leonard. Yes, sir.
Mr. Shays. Mr. Relyea.
Mr. Relyea. I think so, too.
Mr. Shays. So the issue, I want to know, one of the
challenges, and I say this with no reluctance, I don't think
the House of Representatives has done the proper job of
oversight of the administration. I actually think it hurts the
administration. I think had we been to Iraq more often, had
someone been in Abu Ghraib, a Member, someone would have come
to them and said, you know, bad things are happening here, you
need to check it out, questions would have been asked, there
would have been a lot more focus and we could have nipped it in
the bud. That's what I think.
So I think that information that is needed by someone is
never going to be seen by them. I also think that when you have
so much information, besides the cost that you point out, Mr.
Relyea, you end up with just so much to keep track of that it's
just a waste of time as well as money. So I want to know what
you think could bring balance to the system.
Mr. Relyea. One consideration that I would offer, and Mr.
Leonard may not appreciate my offering this, I think his
office, his oversight unit is understaffed. I think a model
that might be looked at, or an arrangement that might be looked
at is not unlike the budget officers that OMB has. Perhaps
ISOO, his unit, would benefit from having in their employ as
their arm into the agencies some type of classification officer
who would be more the arm of ISOO than it would be an employee
of the agency.
Mr. Shays. Mr. Leonard.
Mr. Leonard. As I mentioned in my testimony, Mr. Chairman,
fundamentally, as the current framework is set up, the decision
to classify is an act of judgment. Like so many other things in
life, when it comes to judgment, people sometimes do not
exercise good judgment or don't take the time to be discerning.
Mr. Shays. I think it goes more than that, from your
testimony, that there's actually incentives to classify that
may be logical based on those incentives.
Mr. Leonard. Quite frankly, very few incentives not to
classify. Two comments that I continually get in this area is,
Leonard, don't you know we're at war, and we don't have time
for your administrative niceties. The other statement that
always drives me up a wall is, well, you know, we always want
to error on the side of caution. I'm always dumbfounded by the
very notion of somehow, somebody having error as part of an
implementation strategy. It just strikes me as bizarre.
But yet, and I understand where people are coming from. In
Homeland Security, folks are working at absolutely,
unbelievable ops tempos. It's been for years. I can really
sympathize with the pressures that they're under and that
sometimes, you know, maybe I don't have the time or the
inclination to step back and do it right. But on the other
hand, my reply always is, if we're ever going to get it right,
I would like to think when we're at war is when we're going to
get it right.
Mr. Shays. That's a good point, but I would love to know
what the incentives are to have it be more balanced. So just
think about it a little longer and just let me finish by
asking, what is the status of the Public Interest
Declassification Board, Mr. Relyea?
Mr. Relyea. If memory serves me correctly----
Mr. Shays. Excuse me. It should be Mr. Leonard I should
start with. I apologize.
Mr. Leonard. Yes, sir. We have the Public Interest
Declassification Board, and as you are aware, iy was extended
by the Intel Reform Act last December. It provides for nine
members, five appointed by the President, four by the
congressional leadership. The President appointed his five
members last August-September. There is one congressional
representative appointed, the House Minority Leader appointed
her a member. My understanding is other appointments are under
consideration.
The board has yet to meet. The biggest obstacle we are
encountering right now is the board was a victim of I guess
unfortunate timing, in that it was scheduled to sunset in
December of last year, and therefore, there were no provisions
for it in either the 2005 or the 2006 budget. It was literally
extended at the last minute, December of last year.
Mr. Shays. So there's no money for them?
Mr. Leonard. There's no money for it, but I am confident
there are ongoing efforts right now to identify money in both
2005 and 2006 to fund this.
Mr. Shays. What impact can the Public Interest
Declassification Board have on classification and
declassification policies and practices?
Mr. Leonard. Profound. One of the most profound is one of
the provisions that was added as a result of the Intel Reform
Act, and that is that the board can now hear appeals from
committees of the Congress when there are concerns or disputes
about the appropriateness of classification, and they can make
a recommendation to the President as to the continued
appropriateness of classification. I think that's a very
profound addition to the provision.
Mr. Shays. OK. Thank you.
Mr. Waxman.
Mr. Waxman. Thank you, Mr. Chairman.
Mr. Leonard, I know you specialize in classified
information, but I would like to get your impressions about the
withholding of unclassified, confidential business information.
Let's just use a hypothetical. Suppose a Government agency
conducts an audit of a Government contract and suppose those
auditors issue a report concluding that the contractor has
grossly overcharged the Government for goods or services. In
your experience, have you ever seen a case in which the
administration has withheld as proprietary business information
the actual amount a company has overcharged?
Mr. Leonard. First of all, Mr. Waxman, you are right, this
is beyond my area of expertise. But to answer your specific
question, no, I have never encountered that.
Mr. Waxman. Would such a withholding be appropriate, in
your opinion?
Mr. Leonard. I would be hard pressed to readily come up
with a rationale.
Mr. Waxman. Let me turn to a slightly different issue.
Under Executive Order 12600, when there is a request for a
document under the Freedom of Information Act, the Government
must allow contractors to designate information in that
document as confidential commercial information. Would you
agree that regardless of what information a contractor believes
should be withheld, a Government agency has an independent duty
to make its own determination?
Mr. Leonard. Again, beyond my area of expertise, but yes,
my understanding would be it should be more than just an
assertion.
Mr. Waxman. So it would be inappropriate, in your view, for
an agency to simply abdicate its responsibility to make its own
assessment?
Mr. Leonard. Yes, I do.
Mr. Waxman. One last question, Mr. Leonard. If a contractor
merely disagrees with the Government auditor's conclusion, that
alone wouldn't be a valid reason to redact the auditor's
findings, would it?
Mr. Leonard. Not from my experience.
Mr. Waxman. Mr. Relyea, do you agree with Mr. Leonard's
answers to my questions?
Mr. Relyea. Yes, I would tend to agree, particularly where,
your next to last question, it strikes me that where an agency
is just accepting what a contractor is saying is proprietary,
it's going to create difficulties for the ultimate defense of
that type of case, if it's an FOIA case and it is going to
court. What does the agency say, this guy told me this is the
answer? It's a terrible abrogation of responsibility.
Mr. Waxman. About that first question, about not----
Mr. Relyea. The dollar amount?
Mr. Waxman. Yes, not giving a dollar amount where there is
a question of overcharging. Do you think that is proprietary?
Mr. Relyea. It's hardly proprietary information. It's
disclosable, it seems to me.
Mr. Waxman. OK. And you've had knowledge of this whole
area?
Mr. Relyea. Of the FOIA Act, yes, I've worked with it
extensively over the years.
Mr. Waxman. Thank you, thank you both.
Mr. Shays. They are both qualified experts in this issue.
Mr. Waxman. Mr. Leonard was a little modest.
Mr. Shays. They are both.
Mrs. Maloney.
Mrs. Maloney. In the interest of time, I can call them
later or talk to them. Other people, Richard Ben-Veniste told
me he has to leave, too.
Mr. Shays. Sure. Are there any closing comments either of
you would like to make?
Mr. Relyea. I have one comment I'd like to make. As I
mentioned in my statement, somewhere with these pseudo-
classification markings we probably are looking for some type
of legislative solution. One I would ask you to think about is
creating legislatively the situation where the implementation
or use of these labels could not be accomplished using
appropriated funds unless authorized. So you turn the situation
around to the agencies and you say, if you're going to use
these labels, you have to get our approval.
Mr. Shays. These labels being?
Mr. Relyea. Any of these pseudo markings.
Mr. Shays. Sensitive but unclassified? Sensitive homeland
security information, for official use only?
Mr. Relyea. Correct. So as they come back to try to get an
authorization to use appropriated funds to use these things,
then you put a management platform under them. You get a common
term, you get an understanding of how they will be used, who
will use them, how long. It may be a way of working this
problem through.
Mr. Shays. Thank you very much. Mr. Leonard.
Mr. Leonard. Yes, sir. On that point, I would make two
observations. No. 1, both dealing with the plethora of
sensitive but unclassified regimes, I may not be the brightest
person around, especially if you listen to my wife, that's an
accurate description. [Laughter.]
But even I, of average intellect, have a hard time keeping
track and understanding and knowing all the ins and outs of all
the various regimes out there. It's just literally impossible
to understand all the rules and the nuances and the difference.
When I think of the operators out there who have to take all
this information and compile it and assemble it and do
something with it and disseminate it, my heart really goes out
to them in terms of, how do they understand or how do they know
what's right and what's wrong. My concern is that people always
default then in uncertainty to withhold.
The second thing is the tremendous impact this has on our
ability to leverage information technology. The ability to
assemble and collate and analyze and data mine and disseminate
information and to use technology to do that is severely
restricted by these again plethora of caveats in terms of how
different information is handled and identified. I think that
impact is very significant in terms of our efficiency in this
area.
Mr. Shays. Great. Thank you both very much. We appreciate
your patience with the subcommittee and obviously appreciate
your testimony in response to our questions. Thank you.
At this time, the Chair would welcome our second panelist,
Mr. Richard Ben-Veniste, and thank him for his patience in
waiting to testify. You might stay standing, because as you
know, we swear in our witnesses.
Please raise your right hand.
[Witness sworn.]
Mr. Shays. Thank you. It's wonderful to have you once again
before our subcommittee, especially since we have taken care of
some of your recommendations on the 9/11 Commission. Thank you
for all your good work.
Mr. Waxman. Mr. Chairman, I think modesty is not
appropriate when we talk about the exemplary service that Mr.
Ben-Veniste gave to the 9/11 Commission, and the role that you
and Mrs. Maloney played in pushing that legislation forward to
a good conclusion. It's something that those of us who
supported your efforts are quite proud of.
Mr. Shays. Thank you very much, Mr. Waxman. It was a team
effort, and it's nice to be part of a good team.
I would say that any time I link up with Mrs. Maloney, I
seem to get things done. So Mr. Ben-Veniste, nice to have you
here.
STATEMENT OF RICHARD BEN-VENISTE, COMMISSIONER, NATIONAL
COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES
Mr. Ben-Veniste. Chairman Shays, members of the
Subcommittee on National Security, thank you for the privilege
of appearing before you today to testify on the subject of
emerging threats, overclassification and pseudo-classification.
I would like to address my remarks to three separate
topics. First, the recommendations of the 9/11 Commission as
they relate to the question of overclassification; second, the
experience of the 9/11 Commission with respect to
declassification of its final report; and third, the experience
of the Commission, now former Commission, with respect to the
staff report submitted to the administration for
declassification. That report, entitled, ``The Four Flights and
Civil Aviation Security,'' was submitted to the administration
on the last day of the Commission's existence, August 21, 2004.
Let me start with the recommendations of the 9/11
Commission with respect to classification. All Commissioners
understand the need to know principle and its importance. That
principle exists for good reason: the need to protect sources
and methods of intelligence. The Commission found, however,
that the failure to share information was the single most
important reason why the U.S. Government failed to detect and
disrupt the September 11 plot.
There were bits and pieces of critical information
available in different parts of the Government, in the CIA, the
FBI, and the NSA. Some of the bits were bigger than others. But
pieces of the information were never shared and never put
together in time to understand the September 11 plot.
We cannot say for certain that the sharing of information
would have succeeded in disrupting the plot. No one can. But we
can know for certain that the failure to share information
contributed to the Government's failure to interrupt the plot.
The failure to share information may have cost lives. We paid a
terrible price on September 11th because too much information
was kept secret or otherwise not shared.
Within the intelligence community, there are two basic
reasons why information is not shared. First, the intelligence
community is a collection of fiefdoms, 15 separate agencies.
They have separate cultures. They desire to protect their own
turf. They distrust the ability of their counterparts to
protect information and they design their computers so that
they cannot transmit data easily from one agency to another.
Second, information is not shared because of the need to
know principle. I want to underscore again, all Commissioners
understood the importance of protecting sources and methods.
But the need to know principle also results in too much
classification and too much compartmentalization of
information. Not only do we end up keeping secrets from the
enemy, but we end up keeping secrets from ourselves. Timely
information does not get to the analyst and to the policymaker.
Important information is denied the American people.
Mr. Chairman, the chief reason the 9/11 Commission
recommended the creation of a director of national intelligence
was so that someone could smash the stovepipes in order to
demand the sharing of information and force cooperation across
the intelligence community. We want one individual in charge of
information technology to unclog the arteries of information
sharing across the intelligence community. We want one
individual in charge of security rules and one set of rules for
security, so that as much information as possible flows to
analysts, policymakers and those on the front lines with
security responsibilities.
We want to make sure that the President gets the
information he needs to do the job, and so does the border
inspector and so does the cop on the beat. Information has to
flow more freely. Much more information needs to be
declassified. A great deal of information should never be
classified at all.
Mr. Chairman, my personal view is that an unconscionable
culture of secrecy has grown up in our Nation since the cold
war. Secrecy has often acted as the handmaiden of complacency,
arrogance and incompetence. Senator Pat Moynihan, a passionate
opponent of unnecessary secrecy in Government, called for the
creation of a counter-culture of openness, a climate which
simply assumes that secrecy is not the starting place. It is
time we heeded that call.
The Nazi War Crimes Disclosure Act, signed by President
Clinton in 1998, created an interagency working group to
implement the act's mandate of declassifying documents relating
to World War II war crimes and their perpetrators, still kept
secret by our Government. As one of three non-governmental
members of the IWG appointed by President Clinton, I have had
direct experience with the difficulties of getting public
release of records stamped secret. So far, over 8 million pages
of previously classified documents have been released. National
security has not been jeopardized. Yet but for this act, these
records would still be secret.
Recently, despite the fact that relevant records are in
some cases more than 50 years old, the CIA balked at full
compliance with the act, causing a delay of more than a year in
the IWG's work. Finally, to break the impasse, the IWG had to
seek congressional intervention. The act's authors, Senator
Mike DeWine and Representative Carolyn Maloney, rejected the
CIA's argument for withholding important documents in a meeting
with CIA and IWG officials. Ultimately the CIA abandoned its
opposition and has now promised to comply.
The Senate recently passed a bill authorizing a 2-year
extension of the IWG, which is scheduled to expire at the end
of this month. The House has not yet acted.
Let me return to the Commission's experience with
declassification. Mr. Chairman, the 9/11 Commission, had many
challenges in gaining access to highly classified and sensitive
material it needed to conduct its investigation and complete
its work. We had a number of differences with the executive
branch on questions of access. You are familiar with many of
them, and I will not recount them in detail. Suffice it to say,
with strong support from the American public, and from many
Members of Congress, the Commission eventually gained access to
documents and witnesses it needed to conduct its work.
The Commission has had similar challenges in the
declassification review process. We saw it as our obligation to
make as much information available to the American public in as
timely a fashion as possible. Within the administration, there
are different voices. Clearly, some individuals and agencies
wanted to block the release of material. Because our bipartisan
Commission spoke with a consistently unanimous voice on the
issue of transparency, we were able to overcome those
objections and move forward.
Beginning with the Commission staff statements, we
developed a process where a White House designated point of
contact coordinated the review and declassification of the
Commission's written product. Eventually, our point of contact
became Dan Levin, then at the Justice Department, who did an
exemplary job. He kept the agencies on tight deadlines, and
worked with us to solve problems and keep the process on track.
Lawyers from the White House Counsel's office also worked hard
to solve issues in the pre-publication review process. Solving
problems in most cases meant modest word changes and minor
massaging of the text.
The staff statements were in large measure the building
blocks for the final report. The process we established for
declassification of the staff statements helped us immensely in
the declassification review of the Commission's final report.
We are very proud to say that the final report of the
Commission was issued without a single redaction. There was not
a single paragraph, not a single sentence blacked out from what
we believed we needed to say to tell the full story of
September 11 to the American public. We commend the
administration for recognizing that a critical component for
enhancing national security was to tell the story of September
11 completely and credibly. The 9/11 Commission report without
redactions helped to win the public's interest and the public's
confidence. The integrity of the report helped our Government
and Nation move forward with the reform bill signed into law by
the President last December.
Let me address the staff report on the four flights and the
civil aviation issue of civil aviation security. The Commission
also had good experience with the administration in the
completion of two staff reports on terrorist finance and
terrorist travel that were issued without redactions on the
last day of the Commission's existence, August 21, 2004. On the
last day of its existence, the Commission also submitted its
third and final staff report to the administration for
declassification review. That staff report was entitled, ``The
Four Flights and Civil Aviation Security.''
As in the case of the other two reports, it provides a
wealth of additional detail in support of the facts and
conclusions in the Commission's final report. As the
Commission's general counsel made clear to the administration
at the time of the staff report's submission, he and several
staff retained their security clearances even after the end of
the life of the Commission. Thus, in our view, staff still
should have been able to work with the administration to
address any concerns about classification in a mutually
satisfactory manner, so that this staff report, like the two
previous staff reports, could be issued without redactions.
As this process had worked so well previously, we did not
anticipate that it would not be utilized with respect to the
final report. We cannot say with certainty why the
declassification review of this last staff report took so long
and why the outcome was so unsatisfactory. Part of the answer
is that the administration decided it could no longer negotiate
with former Commission staff, including the office of the staff
report, because they became private citizens after August 21st.
The administration refused to engage former Commission staff or
commissioners in dialog about the declassification process. In
the absence of a dialog and pressure from an existing
commission, the declassification process took an inordinate
amount of time and produced an unsatisfactory result.
What we find especially troubling about the redactions in
this last staff report is that most of them relate to material
known as sensitive security information [SSI], under the
control of the Federal Aviation Administration before September
11 and under the control of the Transportation Security
Administration today. There is little material in this last
staff report from the intelligence community. So we have the
remarkable situation that the Nation's most highly classified
secrets, those that relate to NSA intercepts and covert action,
and those that go into the President's daily brief, got
declassified and put in a public report, read now by millions
of people.
In contrast, far less sensitive material in this last staff
report got blacked out or replaced with blank pages. Indeed,
one redaction deletes a sentence from public testimony in a
hearing before the 9/11 Commission. Some of the redactions,
that's at page 56, if you care to check that monograph. Some of
the redactions relate to the performance of airport security
checkpoints and equipment before September 11. We believe that
the public needs to know what the Commission staff wrote about
checkpoint performance. Some of the redactions relate to
security warnings associated with FAA notices to the airlines
leading up to September 11. We believe the public needs to know
the nature of those warnings.
Some of the redactions relate to a description of the FAA's
no-fly list and criticism of how it was administered. We
believe the public needs to know the nature of that criticism.
We do not believe these redactions are justified, because they
concern a civil aviation system that no longer exists. That
system is gone forever. We see no public purpose served in
keeping its flaws hidden. Those flaws certainly were apparent
to the hijackers. The American people should know them in full
as well.
These redactions are a disservice to the September 11
families, to the Commission and to the Nation. They deprive the
public of the information it deserves. They stoke the fires of
public cynicism. Redactions feed conspiracy theories and
undermine confidence. This is the very reason why we employed
our open hearings, that we were transparent not only in our
staff reports, but in talking about what was in them publicly.
We wanted to avoid the mistakes of past commissions, where
conspiracy theories grew up and still persist.
So we tried to be as transparent as possible in doing our
work. Redactions inevitably lead to questions. What won't our
leaders tell us? What won't they allow us to know? Redactions
serve neither the public interest nor the cause of truth.
Mr. Chairman, let me conclude by saying that the Public
Discourse Project, the not-for-profit organization of which of
the September 11 commissioners is a member, has offered a
simple and constructive proposal with respect to this last
staff report. If the administration were willing to meet with
former Commission staff, including those who drafted this
report, we're confident that a report without redactions could
be reproduced in short order. Such a proposal was made to the
White House in writing, and to date it has not been accepted.
Such a report with integrity and credibility is exactly the
kind of report that the American Government should produce and
the kind of report that the American public deserves.
Thank you very much, and thank you for your kind remarks. I
would be pleased to answer any questions you may have.
[The prepared statement of Mr. Ben-Veniste follows:]
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Mr. Shays. Mr. Ben-Veniste, thank you very much. We are
going to start out with Mr. Waxman.
Mr. Waxman. Mr. Ben-Veniste, thank you for your excellent
statement here today and again, for your exemplary service on
the 9/11 Commission.
I would like to start with the process the administration
went through to declassify the final 9/11 Commission staff
report. Your testimony is that the administration refused to
consult with 9/11 Commission staff about the redactions, that
it took an inordinate amount of time and that it produced an
unsatisfactory result.
Let me start with the failure to work with the September 11
staff. The administration allowed September 11 staff to keep
their security clearance, isn't that correct?
Mr. Ben-Veniste. Yes, some of those clearances are kept for
other reasons and had been in existence prior to the creation
of the Commission.
Mr. Waxman. So let me get a clarification. If the
administration permitted them to retain their security
clearances, why does it matter whether they were employees or
not? Why did the administration refuse to consult them about
these redactions?
Mr. Ben-Veniste. In my view, there is no rationale in that
regard.
Mr. Waxman. Well, that's pretty straight-forward.
Mr. Ben-Veniste. I try to be, Mr. Waxman.
Mr. Waxman. On the timing question, you may have heard
Admiral McMahon in our first panel, the head of security and
intelligence for the Transportation Department, say that the
FAA actually completed its review in September. Did that
surprise you?
Mr. Ben-Veniste. Yes, it did, sir.
Mr. Waxman. Do you have any information about why the
report was delayed from September until January?
Mr. Ben-Veniste. I do not.
Mr. Waxman. Although this hearing has produced some
information, we now have more new questions than answers. I
think we will have to pursue this issue further. Who do you
recommend the committee talk to for additional information
about this declassification process? Officials at the White
House and the Justice Department?
Mr. Ben-Veniste. Yes, Mr. Waxman, I think the three areas
are the TSA, the Justice Department and White House counsel's
office.
Mr. Waxman. Are there any specific documents you believe
the committee should specifically request?
Mr. Ben-Veniste. There are memoranda discussing why this
material has been redacted, why it has taken so long. Clearly
there has been substantial public interest, by the New York
Times and other important publications. And of course, through
a hearing like this, which generates appropriate additional
public interest. There should be some traffic among the
agencies to ask the logical question of what the heck took so
long and why.
Mr. Waxman. Mr. Chairman, I think what Mr. Ben-Veniste
suggests makes a lot of sense. I would like to propose that the
subcommittee interview these people and request these
documents. We can discuss this further.
Mr. Shays. The committee would be happy to do that, and we
would be happy to work with your staff to have that happen.
Mr. Waxman. Thank you.
Commissioner Ben-Veniste, Condoleezza Rice testified before
the 9/11 Commission on April 8, 2004.
Mr. Ben-Veniste. I remember that.
Mr. Waxman. I would like to ask you about the circumstances
surrounding her testimony. First, I remember that the White
House did not want to allow her to testify. They were very
opposed to her appearing before the Commission under oath. If I
remember correctly, the Commission's time with Ms. Rice was
very truncated. I wonder if you would be able to describe for
us the background on that, what was happening behind the
scenes?
Mr. Ben-Veniste. Well, I can only talk about what was
happening behind our scene. Obviously we felt that Dr. Rice's
testimony would be very important. You may recall that Dr. Rice
had characterized certain elements of what became her testimony
in public statements in various venues prior to the time that
she testified. We felt that it was more than appropriate that
Dr. Rice provide her insights and recommendations to us in a
public forum, since this was the purpose of the 9/11 Commission
and she was an integral part of the history of what occurred
prior to September 11. So I believe it was on the basis of the
unanimous demand by this bipartisan commission that Dr. Rice
appeared publicly before us, under oath, as other witnesses had
appeared, to provide an answer to those questions.
Now, as it turned out, her testimony was scheduled for the
morning of the same day during which we had already committed
to question President Clinton. So when you say truncated, I
suppose that's what you mean. I had all of 16 minutes to
question. I would have appreciated more time, but we made do
with what we had.
Mr. Waxman. So you didn't feel that you had a satisfactory
amount of time to pursue all the issues you wanted to raise
with her?
Mr. Ben-Veniste. I would have had more questions. And I
probably would have been more considerate of the length of her
answers, had there been more time.
Mr. Waxman. Good point. Her testimony came 3 weeks after
she held a press conference at the White House. There she said,
``I don't think anybody could have predicted that these people
would try to use an airplane as a missile, a hijacked airplane
as a missile.'' But the 9/11 Commission staff report stated
that the FAA had indeed considered the possibility that
terrorists would hijack a plane and use it as a weapon.
Given the Commission's findings, were you concerned that
perhaps her statements were not based on a thorough review of
the subject?
Mr. Ben-Veniste. Well, it's not just the FAA, Mr. Waxman,
but within the intelligence community as we had pointed out
repeatedly in public hearings and certainly in our final report
in various portions of the report, the intelligence community
was aware that on perhaps 10 separate occasions involving
various plots, some of them interrupted in various stages of
preparation, that terrorists were planning to use planes as
weapons. One such plot involved crashing a plane into CIA
headquarters. Another plot involved crashing a plane into the
Eiffel Tower. We know that someone crashed a plane onto the
White House lawn.
This was not something which required anybody to do a great
deal of research on. It seemed to us at the time, particularly
one familiar with the intelligence apparatus of the United
States. I can point to the fact that just prior to September
11, in an overseas conference in Italy we took measures to
protect against the use of suicide aircraft flying into
buildings at that conference, which of course President Bush
attended.
Mr. Waxman. When she testified before your Commission,
however, she sort of backed off her previous statement and
said, this kind of analysis about the use of airplanes as
weapons actually was never briefed to us. Were you surprised
that she still hadn't been briefed on these FAA warnings by
April 2004, 2\1/2\ years after the September 11th attacks?
Mr. Ben-Veniste. I was disappointed, Mr. Waxman. I have a
very high threshold for surprise, having operated here in the
Nation's Capital for many decades now.
Mr. Waxman. She was a National Security Advisor, it was her
job to get all the information so she could present it to the
President. She had others telling her there was a great deal of
urgency, particularly Richard Clarke, that there was a great
deal of urgency about Al-Qaeda. You said all these CIA reports
and FAA reports were being issued. Yet she wasn't being briefed
on it.
Mr. Ben-Veniste. In our report, we point out that Dr. Rice
viewed her function as National Security Advisor in a way
somewhat differently than her predecessor, Sandy Berger, in
terms of her responsibility for the domestic threats posed by
terrorists. Perhaps the next time you have the opportunity to
question Dr. Rice, you might ask her about that.
Mr. Waxman. She may have viewed her role differently, but
she made all the public statements on behalf of the
administration, pretty much suggesting that she had this very
clear role of developing the policy.
I thank you for your answers to these questions. Thank you,
Mr. Chairman.
Mr. Shays. I thank the gentleman for his questions and for
your responses.
I think one of the important points of the 9/11 Commission
was a very clear finding that there were breakdowns in the
previous administration, there were breakdowns in the present
administration. Had either administration done better or
Congress, or had the intelligence community done its better
job, any one of those doing better might have changed the
outcome. Do you think that's an unfair analysis?
Mr. Ben-Veniste. I think that there is a mistake in
apportioning responsibility in that sort of equivalence. The
agencies and individuals who had greater responsibilities,
certainly for protecting the homeland. Obviously when you make
a generalization, it does a disservice to some and is more
generous to others.
Mr. Shays. When Mr. Clarke appeared before our subcommittee
behind closed doors, it was one of the most shocking
experiences I had had. It was before September 11th, and we had
by then had I think about 10 hearings on the terrorist threat,
and we were now meeting with the terrorist czar. We asked him
what our strategy was to deal with the terrorist threat and he
said, we don't have any strategy.
We were so dumbfounded, his basic response was, we know who
the bad guys are and we go after them. We were so surprised by
it that the subcommittee wrote him a letter, with his response.
And we were so surprised by it that we wrote Condoleezza Rice a
letter and said, don't hire the guy, when she took over. But we
also told Condoleezza Rice that there was a terrorist threat
out there that she needed to deal with, and we don't think they
responded to that, either.
I would like to know what you think gives us a culture, a
counterculture of openness. What do you think does that? It
obviously starts with the White House. But what are things
that----
Mr. Ben-Veniste. It doesn't seem to be coming from the
White House, so when we say, where does it start, I think first
you identify what the problem is and the problem is that for
decades this culture has existed. But for exceptions like the
Nazi War Crimes Disclosure Act, which mandates specific
declassification, there is no consequence, essentially, to
those who unnecessarily withhold and classify materials that
are withheld from public inspection.
So the result of that is more and more classification, more
and more secrecy, less and less openness. Unless that trend is
reversed, if the leadership is not coming from the
administration then it's got to come from the Congress. The
press is very happy to support, I'm quite sure, efforts toward
openness. The spirit that Senator Pat Moynihan was talking
about has not yet taken hold. I think legislation is necessary,
the creation of ombudsmen or classification authorities within
each of the agencies that classifies material would be a step
in the right direction.
There are consequences for making mistakes and releasing
information. There don't seem to be any consequences to
withholding information that should be available to the public.
Mr. Shays. What department did you find the most reluctant
or the most secretive and what did you find, well, which had
the best culture for openness and which had the worst?
Mr. Ben-Veniste. You know, I don't know--do you mean with
respect to the 9/11 Commission?
Mr. Shays. Yes, I guess so. In other words, when my staff
has looked at the Transportation Department, for the most part
they think they have a pretty good policy and practice, for the
most part.
Mr. Ben-Veniste. Part of that depends on making the
distinction between who talks the talk and who walks the walk,
Mr. Chairman. People may make very soothing noises about
cooperation and releasing material and providing them. But
until you get down in the weeds and see what's actually
produced----
Mr. Shays. Well, are you capable of answering the question
of, did you have enough interaction with enough agencies to
find out anything? Usually you would say, you know, these guys
are being a lot more cooperative than this group.
Mr. Ben-Veniste. We found that the FBI was particularly
cooperative, that FBI Director Mueller's leadership was much
appreciated. And other places we had to employ a blowtorch and
a pair of pliers.
Mr. Shays. Thank you. That's helpful.
Mrs. Maloney.
Mrs. Maloney. I just would like to join with my colleagues
in congratulating you on the extraordinary job you and the
other commissioners did with the 9/11 Commission report. Really
one of my happiest days was the day the President signed the
intelligence bill into law. It would not have happened without
your dedicated commitment. Also your work on the Nazi War
Crimes Disclosure Act, which is continuing, as we are pushing
to get an extension to compete the work. So we thank you for
your work.
Mr. Ben-Veniste. Thank you.
Mrs. Maloney. What defense could you possibly give for the
civil aviation document to be so heavily redacted? Do you have
any understanding? As I understand, it was the only document
that was redacted. Is that true? That's what I read.
Mr. Ben-Veniste. Substantially yes. There were discussions
but there were minor revisions made, and our staff reports, the
two other ones that were released, what we call the staff
monographs, which are far more detailed expositions of facts
that are contained in more summary fashion in some cases than
our final report. But that is correct. So if you are asking me
to put on my hat as a defense lawyer rather than an observer
and an advocate for openness, I would have to plead ignorance
on that point.
I went through, in my prepared remarks, a recitation of
where we feel that these redactions occurred and why we feel
that they were unwarranted in each case, including redacting a
statement of Michael Canavan in open testimony before the
Commission.
Mrs. Maloney. Exactly. Ridiculous.
Mr. Ben-Veniste. Governor Kean and Congressman Hamilton
wrote the White House counsel, essentially pointing out the
deficiencies, on February 11th, stating basically our
disappointment with the classification review process of this
last staff statement and offering again to work together with
them with our staff. White House counsel responded on March
1st, saying essentially that they had sent the report back to
the DOJ----
Mr. Shays. We will put that letter into the record.
Mr. Ben-Veniste. We can do that. We can make both the
February 11 and March 1 letters available.
Mr. Shays. We will put them both into the record.
[The information referred to follows:]
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Mrs. Maloney. Thank you.
I would like to ask you about Sibel Edmonds. As you know,
the former FBI translator, Ms. Edmonds, is going to be
testifying today. The Commission also had a chance to interview
her, as well as to raise her case before FBI Director Mueller,
when you met with him. The Justice Department Inspector General
recently released its report on her allegations, finding that
they were credible and supported by other witnesses and
evidence.
I would like to ask you, Mr. Ben-Veniste, did the
Commission also find her to be credible?
Mr. Ben-Veniste. Well, I can't speak for the Commission on
that, Mrs. Maloney, because that was something where the
Commission made a determination that her assertions were under
active investigation by the IG's office. I think Mr. Fein has
done extraordinary service to this country in the work he has
performed over time as Inspector General of the Department of
Justice and I have no reason to think that his report is
anything but credible and accurate with respect to Ms. Edmonds.
Mr. Shays. We have 5 minutes to vote.
Mrs. Maloney. We have to run and vote. It's always a great
pleasure to see you and thank you again for your great service.
Mr. Shays. So we will close this panel, and thank you for
your testimony, Mr. Ben-Veniste. Thank you very much. We will
start with the third panel when we get back, and we are
recessed.
[Recess.]
Mr. Shays. The Subcommittee on National Security, Emerging
Threats, International Relations is now reconvened for our
hearing on Emerging Threats, Overclassification and Pseudo-
Classification.
I will introduce our three panelists. Mr. Thomas Blanton,
executive director, National Security Archive, George
Washington University; Mr. Harry A. Hammitt, editor and
publisher, Access Reports: Freedom of Information, Lynchburg,
VA; and Ms. Sibel Edmonds, former contract linguist, Federal
Bureau of Investigation. Welcome.
If you would stand, I will swear you all in, as we do in
our subcommittee. Please raise your right hands.
[Witnesses sworn.]
Mr. Shays. Note for the record all three witnesses have
responded in the affirmative. We appreciate your patience as we
begin this third panel at 4 p.m.
We'll just start with you, Mr. Blanton, and we'll go from
there.
STATEMENTS OF THOMAS BLANTON, EXECUTIVE DIRECTOR, NATIONAL
SECURITY ARCHIVE, GEORGE WASHINGTON UNIVERSITY; HARRY A.
HAMMITT, EDITOR AND PUBLISHER, ACCESS REPORTS: FREEDOM OF
INFORMATION; SIBEL EDMONDS, FORMER CONTRACT LINGUIST, FEDERAL
BUREAU OF INVESTIGATION
STATEMENT OF THOMAS BLANTON
Mr. Blanton. Thank you very much, Mr. Chairman. It is a
privilege to be here with you today, also to be here in the
Rayburn Building, because Sam Rayburn is quite famous in my
family for having broken up a fist fight on the floor of the
House of Representatives that was started by a relative of
mine, a Congressman named Thomas Blanton of Texas. He broke up
the fist fight by picking up Tom by the scruff of the neck and
pulling him away. I just suggest, Mr. Chairman, that your
subcommittee has the secrecy and the pseudo-secrecy system by
the scruff of the neck. It's up to you to pull it away so it
stops doing damage to our security.
Mr. Shays. Will we get a building named after us?
[Laughter.]
Mr. Blanton. I would hope so.
What I want to do today, very briefly, Mr. Chairman, is try
to diagnose the problem and offer a couple of solutions. Up on
the screen, you see this wonderful little graphic that just
takes all the data that Bill Leonard's wonderful audit office
has amassed since its start in 1980, that's the first time that
we started counting the number of national security secrets,
the number of secrecy decisions. You can see that last year, in
2003, the number of new national security secrecy decisions
broke the previous record at the height of the cold war. What I
just found out today, from your hearing, Mr. Chairman, from Mr.
Leonard, is that his new report out at the end of the month
says the new number will actually go off this chart. Secrecy is
off the charts. It will be 16.1 million, is the latest data
from 2004.
Now, two things to remember about each one of these
decisions. One is they create a stream of secrets, because
through the magic of e-mail, computers, xeroxing, co