[Senate Hearing 105-729]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 105-729


 
                        DISCLOSURE OF CLASSIFIED
                        INFORMATION TO CONGRESS

=======================================================================

                                HEARINGS

                               before the

                    SELECT COMMITTEE ON INTELLIGENCE

                                 of the

                          UNITED STATES SENATE

                       ONE HUNDRED FIFTH CONGRESS

                             SECOND SESSION

                                   on

                        DISCLOSURE OF CLASSIFIED
                        INFORMATION TO CONGRESS

                               __________

                      Wednesday, February 4, 1998

                      Wednesday, February 11, 1998

                               __________

      Printed for the use of the Select Committee on Intelligence

                              ------------

                     U.S. GOVERNMENT PRINTING OFFICE
51-671 cc                    WASHINGTON : 1998






                    SELECT COMMITTEE ON INTELLIGENCE

                  RICHARD C. SHELBY, Alabama, Chairman
               J. ROBERT KERREY, Nebraska, Vice Chairman
JOHN H. CHAFEE, Rhode Island         JOHN GLENN, Ohio
RICHARD G. LUGAR, Indiana            RICHARD H. BRYAN, Nevada
MIKE DeWINE, Ohio                    BOB GRAHAM, Florida
JON KYL, Arizona                     JOHN F. KERRY, Massachusetts
JAMES M. INHOFE, Oklahoma            MAX BAUCUS, Montana
ORRIN G. HATCH, Utah                 CHARLES S. ROBB, Virginia
PAT ROBERTS, Kansas                  FRANK R. LAUTENBERG, New Jersey
WAYNE ALLARD, Colorado               CARL LEVIN, Michigan
DAN COATS, Indiana
                  TRENT LOTT, Mississippi, Ex Officio
              THOMAS A. DASCHLE, South Dakota, Ex Officio
                                 ------                                
                   Taylor W. Lawrence, Staff Director
             Christopher C. Straub, Minority Staff Director
                    Kathleen P. McGhee, Chief Clerk


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held in Washington, DC:
    Wednesday, February 4, 1998..................................     1
Statement of:
    Fisher, Dr. Louis, Ph.D., Senior Specialist (Separation of 
      Powers), Congressional Research Service....................     5
    Levin, Hon. Carl, a U.S. Senator from the State of Michigan..     5
    Raven-Hansen, Professor Peter, Glen Earl Weston Research 
      Professor of Law, The George Washington University Law 
      School.....................................................    16
    Roberts, Hon. Pat, a U.S. Senator from the State of Kansas...     3
    Shelby, Hon. Richard C., a U.S. Senator from the State of 
      Alabama....................................................     1
Testimony of:
    Fisher, Dr. Louis, Ph.D., Senior Specialist (Separation of 
      Powers), Congressional Research Service....................    13
    Raven-Hansen, Professor Peter, Glen Earl Weston Research 
      Professor of Law, The George Washington University Law 
      School.....................................................    30
Supplemental materials, letters, articles, etc.:
    Letter and Analysis of the issues, dated October 22, 1998, 
      submitted by Professor Peter Raven-Hansen and Professor 
      William C. Banks...........................................    20
Hearing held in Washington, DC:
    Wednesday, February 11, 1998.................................    39
Statement of:
    Fisher, Dr. Louis, Ph.D., Senior Specialist (Separation of 
      Powers), Congressional Research Service....................    45
    Kerrey, Hon. J. Robert, a U.S. Senator from the State of 
      Nebraska...................................................    39
    Moss, Randolph D., Deputy Assistant Attorney General, Office 
      of Legal Counsel, Department of Justice....................    41
Testimony of:
    Fisher, Dr. Louis, Ph.D., Senior Specialist (Separation of 
      Powers), Congressional Research Service....................    45
    Moss, Randolph D., Deputy Assistant Attorney General, Office 
      of Legal Counsel, Department of Justice....................    46


            DISCLOSURE OF CLASSIFIED INFORMATION TO CONGRESS

                              ----------                              


                      WEDNESDAY, FEBRUARY 4, 1998

                                       U.S. Senate,
                          Select Committee on Intelligence,
                                                    Washington, DC.
    The Select Committee met, pursuant to notice, at 10:05 
a.m., in Room SH-216, Hart Senate Office Building, the 
Honorable Richard Shelby, Chairman of the Committee, presiding.
    Present: Senators Shelby, Roberts, and Kerrey of Nebraska.
    Also Present: Taylor Lawrence, Staff Director; Chris 
Straub, Minority Staff Director; Dan Gallington, General 
Counsel; and Kathleen McGhee, Chief Clerk.
    Chairman Shelby. The Committee will come to order.
    The Committee meets today to examine an issue that goes to 
the very core of our mission, namely vigilant oversight of the 
intelligence activities and programs of the United States 
Government.
    We are the people's representatives in ensuring that such 
activities are in conformity with the Constitution and the laws 
of the United States.
    The issue before us is whether the Congress and the 
President share constitutional authority over the regulation of 
classified information.
    As one might expect, the Administration has asserted that 
the President has ultimate and unimpeded authority over the 
collection, retention and dissemination of national security 
information. We disagree.
    While the Constitution grants the President, as Commander-
in-Chief, the authority to regulate classified information, 
this grant of authority is by no means exclusive.
    In fact, the Congress has legislated extensively in this 
area.
    For example, many specific provisions of the National 
Security Act of 1947, amended most recently in 1994, require 
that our Committee receive and review classified information as 
part of our oversight duties. Certainly, classified information 
pertaining to fraud, mismanagement, or misconduct within the 
Intelligence Community is in this category.
    Last year we wrote a new chapter in this legislative 
history by reporting an Authorization Bill that included a key 
provision. Section 306 directed the President to inform 
Executive branch employees that they may disclose information, 
including classified information, to Congress that is relevant 
to fraud, mismanagement, or misconduct, within the Executive 
branch.
    The Senate passed the bill with an almost unanimous vote of 
98 to one.
    Shortly after passage, the Administration expressed their 
opposition to Section 306 stating that it was 
``unconstitutional'' and that ``senior advisers would recommend 
that the President veto the bill.''
    The House version of the bill did not include such a 
provision and many Members of the House Permanent Select 
Committee on Intelligence expressed concern over the 
constitutional implications of Section 306.
    The Chairman of the House Intelligence Committee requested, 
on behalf of his Members, to have an opportunity to more 
closely examine this issue.
    And in deference to our colleagues in the House, we agreed 
in Conference to amend Section 306 to reflect the sense of 
Congress that both branches of government have ``equal 
standing'' in the handling of national security information and 
we did not impose a statutory requirement on the President.
    The Conference Committee agreed, however, that each 
Committee would hold hearings on this issue and pursue a more 
definitive legislative remedy in this session of the 105th 
Congress.
    An assertion of exclusive authority by the President to 
control classified information that may evidence misconduct 
within his Administration is not only counter intuitive, it 
contradicts nearly two hundred years of legislative and 
judicial precedent.
    Our primary purpose in pursuing this legislation is to 
ensure that this Committee retains its ability to rigorously 
oversee the intelligence activities of the United States 
Government on behalf of the people.
    Under the current policy, Administration officials reserve 
the right to withhold classified information from Congress, 
thereby insulating themselves from the scrutiny of the people's 
elected representatives.
    We don't believe that the Founding Fathers intended this 
result and we know that the American people will not accept it.
    Our secondary purpose in putting forth legislation is to 
give Executive branch personnel an authorized outlet for 
extremely sensitive information.
    It has become almost routine to see unauthorized 
disclosures of allegedly classified information in the print 
and broadcast media.
    I believe it is imperative that individuals with 
information about misconduct within the Executive branch have a 
safe harbor where they know the information will be properly 
safeguarded and thoroughly investigated.
    Every Member of this Committee and every member of its 
staff are properly cleared and acutely aware of their 
responsibility to protect sensitive national security 
information under the rules of the Committee.
    I am very disturbed that employees of the Executive Branch 
would risk grave harm to our national security by disclosing 
classified information to a reporter.
    The First Amendment protection, provided in most cases to 
reporters who refuse to reveal their sources, provides a 
dangerous sanctuary to those who are taking unnecessary risks 
with our national security.
    Such employees should feel secure in coming forward to the 
Oversight Committees of Congress because the information can be 
acted on without placing it in the public domain where it can 
be used by our adversaries and foreign intelligence services.
    I believe we must make it clear to all those who give 
classified information to reporters that they will be 
prosecuted.
    At the same time, we must make it clear that if they bring 
this information to the appropriate Oversight Committees, they 
will be protected from any retribution, and any allegations of 
wrongdoing will be thoroughly investigated without jeopardizing 
national security through public disclosures of sensitive 
information.
    And this last point is the key to effective oversight.
    In the investigation process, it is incumbent on us to 
vigorously adhere to the rules of our Committee governing the 
safeguard of national security information.
    I look forward to hearing from our witnesses today on this 
very important topic.
    I understand that Senator Kerrey, the Vice Chairman, will 
join us later. He's in the Finance Committee.
    At this point, Senator Roberts, do you have an opening 
statement?
    Senator Roberts. I just have an observation, Mr. Chairman.
    Chairman Shelby. Uh-huh.
    Senator Roberts. I don't mean to summarize Dr. Fisher's 
testimony before he testifies, but I note there was a very 
pertinent conclusion in his conclusion, when he says, to the 
extent that the concern of the Executive branch is directed 
towards the control of information that might be damaging to 
national security, the Intelligence Committees have procedures 
in place designed to protect against such damage.
    And I know of no one on this Committee, or for that matter, 
the House Committee, that would willingly or willfully do 
anything of that nature.
    Now, I'm, in my real life, in my former life, I'm a former 
newspaper man--as a matter of fact, the bio says journalist. 
That's an unemployed newspaper man. And I note the concern 
about what appears in the Fourth Estate in regards to national 
security matters, and Director Tenet just the other day when he 
testified before the Committee indicated that the Executive 
does have a problem in regards to what is referred to as leaks. 
It's been my experience it is not a leak until somebody gets 
wet. And with the Executive, I think we're under water in some 
cases.
    And the thought occurs to me that in a vetting process, if 
somebody thinks there is something wrong or they have a concern 
or there has been fraud or abuse or somebody is out of bounds 
or there's lawbreaking, that if they could come to the 
Committee, it seems to me that we might prevent some of the 
unauthorized press coverage in regards to classified 
information. It would be a vetting process. It would be 
somewhere where employees could feel, at least to some degree, 
that they were being responsible to their code of conduct, 
without going to the press.
    Now, I am a realist and I understand it. The press has a 
right to know, when they shine the light of truth into 
darkness, and all of that, and I know they will continue to do 
that, as they should. But I think this could be helpful in that 
regard, Mr. Chairman, and I want to thank you for your efforts 
in that regard.
    Chairman Shelby. We will hear from two panels today.
    The first panel will present the argument that the 
Executive Branch and Legislative Branch share constitutional 
authority over the regulation of classified information.
    The second panel will present the opposing argument.
    On our first panel is Dr. Louis Fisher. Dr. Fisher may look 
familiar because he has testified on over thirty occasions 
before various Congressional Committees.
    Dr. Fisher is a Senior Specialist in the separation of 
powers with the Congressional Research Service of the Library 
of Congress. He began work with the CRS in 1970 and served as 
research director of the House Iran-Contra Committee in 1987.
    Dr. Fisher's areas of expertise are Constitutional Law, the 
Presidency, Executive-Legislative Relations, War Powers, and 
Congressional-Judicial Relations.
    He has authored over a dozen books on various 
constitutional topics, many of which focus on the 
constitutional tension between the legislature and the 
executive. He is the author of more than 200 articles in law 
reviews, journals, magazines, books, and newspapers.
    Dr. Fisher, we are pleased that you could be with us today.
    Also, on our first panel is Professor Peter Raven-Hansen. 
Professor Raven-Hansen is currently the Glen Earl Weston 
Research Professor of Law at the George Washington University 
Law School. He has been a Professor of Law at George Washington 
University Law School since 1980.
    Before I call on you gentlemen, Senator Levin has joined 
us.
    Senator.
    Senator Levin. Mr. Chairman, I'll be very, very brief. I 
would ask that my entire statement be placed in the record.
    Chairman Shelby. Without objection, it is so ordered.
    Senator Levin. Mr. Chairman, I want to commend you and our 
Vice Chairman, first of all, for the energy with which you have 
pursued this very important issue. It is an issue which was 
left unresolved at the end of last year's legislative period. 
It is my own view that a Member of Congress or staff with the 
appropriate security clearance, should be able to request or 
receive classified information, as long as there is a 
legitimate purpose to be served.
    And one legitimate for either requesting or receiving 
classified information would be if that information provides 
evidence of waste, fraud or abuse in programs for which 
Congress has oversight responsibility. And the key issue to me 
is whether or not the person receiving the information, number 
one, has clearance, and number two, has a legitimate--and there 
is a legitimate legislative purpose, including oversight.
    And so I think that the--hope that we'll be able to resolve 
this issue, but I mainly want to, in the moment I have, just to 
thank you, Mr. Chairman, and Senator Kerrey as well, our Vice 
Chairman, for pursuing this issue. It's very important in terms 
of the fight against waste, fraud and abuse.
    [The statement of Senator Levin follows:]

  Statement of Senator Carl Levin, Intelligence Committee Hearing on 
                 Disclosure of Information to Congress

    Mr. Chairman, Mr. Vice Chairman, today's hearing addresses 
an important issue that was left unresolved in last year's 
Intelligence Authorization and Defense Authorization bills, the 
nature and degree of protection to be afforded to federal 
employees who use classified information to report fraud, waste 
and abuse to Members of Congress with the appropriate security 
clearance to receive the information.
    As the author of the Whistleblower Protection Act of 1989, 
I salute you for the energy with which you have pursued this 
important issue.
    We are here today, in large part, because the Justice 
Department has taken the position that it is unconstitutional 
for Congress to provide protection to whistleblowers who use 
classified information to disclose waste, fraud and abuse even 
if the information is provided to Members and staff with the 
appropriate security clearance to receive the information. The 
basis for this position is a legal memorandum stating--without 
any citation to either the text of the Constitution or the case 
law--that the President has ``ultimate and unimpeded authority 
over the collection, retention and dissemination of 
intelligence and other national security information'' and that 
``The Constitution does not permit Congress to circumvent'' 
this authority.
    I think we all recognize that the dissemination of 
classified information must be carefully controlled and we do 
not want to ``legalize leaking [classified] information to 
Congress'. At the same time, however, Congress cannot and 
should not accept the conclusion that Executive branch 
officials are free to lie to Congress--or to hide evidence of 
waste, fraud and abuse--and then threaten reprisal against any 
employee who might expose the truth.
    A Member of Congress, with the appropriate security 
clearance, should be able to request or receive classified 
information, as long as the Member has a legitimate need for 
that information. One legitimate basis for requesting or 
receiving classified information would be if that information 
provided evidence of waste, fraud and abuse in programs for 
which the Member has oversight responsibility.
    I look forward to the testimony of our witnesses.

    Chairman Shelby. Well, Senator Levin, I know that you have 
spent a lot of time in this area, and I think this is--this one 
you've served and chaired another Committee that deals with a 
lot of the issues here, but the Intelligence Committee, I 
believe, is the proper forum to try to deal with this, and I 
appreciate your remarks.
    Dr. Fisher, you may proceed.
    Any and all of your written statement will be made part of 
the record in its entirety.
    [The written statement of Dr. Fisher follows:]

  Prepared Statement by Louis Fisher, Congressional Research Service, 
                 Executive Employee Access to Congress

    Mr. Chairman, I appreciate the opportunity to testify on 
legislation that would allow executive employees to contact the 
Intelligence Committees without first receiving approval from 
their supervisors in the executive branch.
    This issue was debated last year when the Intelligence 
Committees considered Section 306 of S. 858 to expand executive 
employee access to Congress (see appendix for legislative 
language). The Senate report accompanying S. 858 explained that 
current executive branch policies on classified information 
``could interfere with [the Senate Intelligence Committee's] 
ability to learn of wrongdoing within the elements over which 
it has oversight responsibility.'' [S. Rept. No. 105-24, 105th 
Cong., 1st Sess. 26 (1997).]
    I approach Section 306 from the work I do on separation of 
powers. For thirty years my interest has been in political 
institutions: how to keep them healthy so that government as a 
whole functions well. At times I testify in defense of 
legislative prerogatives. On other occasions I have testified 
that pending bills interfere with presidential responsibilities 
or threaten judicial independence.
    I regard Section 306 as an appropriate and constitutional 
means of protecting legislative interests. That is especially 
so because Congress in the 1970s--in creating the Intelligence 
Committees--relied heavily on those panels to guard Congress as 
an institution. To a great degree, Congress delegated to these 
committees the responsibility for monitoring and controlling 
the intelligence community. There are sufficient safeguards in 
Section 306 to protect executive interests. My statement covers 
a number of points, including arguments put forth by the 
Justice Department's Office of Legal Counsel in a 1996 
memorandum.
    As presently drafted, Section 306 contemplates two steps: 
enactment of a law followed by ``appropriate actions'' by the 
President to inform executive employees of the congressional 
policy. If for some reason the President failed to act, or 
informed executive employees in such a way as to dilute the 
congressional policy, the statutory purpose would be undermined 
without a clear remedy. An alternative would be to use a single 
step: enact Section 306 with no requirement for presidential 
action. Of course the President would always be free to issue 
any guidelines he considered appropriate to the agencies, but 
Section 306 would stand alone as a statement of national policy 
for executive employees and contractors.

                             olc memorandum

    In a memorandum dated November 26, 1996, Christopher H. 
Schroeder of the Office of Legal Counsel, U.S. Department of 
Justice, wrote to Michael J. O'Neil, General Counsel of the 
Central Intelligence Agency, regarding access to classified 
information. The memo analyzes two congressional enactments 
concerning the rights of federal employees to provide 
information to Congress: 5 U.S.C. 7211 (Lloyd-LaFollette Act) 
and Section 625 of the Treasury, Postal Service Appropriation 
Act for fiscal 1997 (P.L. No. 104-208). Both statutory 
provisions give executive employees a right to furnish 
information to either House of Congress or to a committee or 
Member thereof. The OLC memo repeats the position announced in 
previous Justice Department documents that a congressional 
enactment ``would be unconstitutional if it were interpreted to 
divest the President of his control over national security 
information in the Executive Branch by vesting lower-ranking 
personnel in that Branch with a `right' to furnish such 
information to a Member of Congress without receiving official 
authorization to do so.'' [OLC Memo at 3.] The Justice 
Department bases this position on the following separation of 
powers rationale:
    ``The President's roles as Commander in Chief, head of the 
executive Branch, and sole organ of the Nation in its external 
relations require that he have ultimate and unimpeded authority 
over the collection, retention and dissemination of 
intelligence and other national security information in the 
Executive Branch. There is no exception to this principle for 
those disseminations that would be made to Congress or its 
Members. In that context, as in all others, the decision 
whether to grant access to the information must be made by 
someone who is acting in an official capacity on behalf of the 
President and who is ultimately responsible, perhaps through 
intermediaries, to the President. The Constitution does not 
permit Congress to circumvent these orderly procedures and 
chain of command--and to erect an obstacle to the President's 
exercise of all executive powers relating to the Nation's 
security--by vesting lower-level employees in the Executive 
Branch with a supposed `right' to disclose national security 
information to Members of Congress (or anyone else) without the 
authorization of Executive Branch personnel who derive their 
authority from the President.'' [Id. at 4.]
    According to this analysis, the two congressional statutes 
and the pending language in S. 858 are unconstitutional. The 
Department's position relies in part on generalizations and 
misconceptions about the President's roles as Commander in 
Chief, head of the Executive Branch, and sole organ of the 
Nation in its external relations.

                           commander in chief

    The Constitution empowers the President to be Commander in 
Chief, but that title must be understood in the context of 
military responsibilities that the Constitution grants to 
Congress. Article II reads: ``The President shall be Commander 
in Chief of the Army and Navy of the United States, and of the 
Militia of the several States, when called into the actual 
Service of the United States.'' For the militia, Congress--not 
the President--does the calling. Article I gives to Congress 
the power to provide ``for calling forth the Militia to execute 
the Laws of the Union, suppress Insurrections and repel 
invasions.'' Article I also empowers Congress to declare war, 
raise and support armies, and make rules for the land and naval 
forces.
    The debates at the Philadelphia Convention make clear that 
the Commander in Chief Clause did not grant the President 
unilateral, independent power other than the power to ``repel 
sudden attacks.'' [2 Farrand 318-19.] The Commander in Chief 
Clause was also intended to preserve civilian supremacy. [10 
Op. Att'y Gen. 74, 79 (1861).] The historical record is replete 
with examples of Congress relying on the regular legislative 
process to control the President's actions in military 
affairs.\1\ There is no evidence from these sources that the 
framers intended the Commander in Chief Clause to deny to 
Members of Congress information needed to supervise the 
executive branch and learn of agency wrongdoing.
---------------------------------------------------------------------------
    \1\ Louis Fisher, Presidential War Power (1995); Louis Fisher, 
``Congressional Checks on Military Initiatives,'' 109 Pol. Sci. Q. 739 
(Winter 1994-95); William C. Banks and Peter Raven-Hansen, National 
Security Law and the Power of the Purse (1994); Louis Fisher, ``How 
tightly Can Congress Draw the Purse Strings?,'' 83 Am. J. Int'l L. 758 
(1989).
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                      head of the executive branch

    The framers placed the President at the head of the 
executive branch to provide for unity, responsibility, and 
accountability. No doubt that was an important principle for 
assuring that the President, under Article II, Section 3, was 
positioned to ``take Care that the Laws be faithfully 
executed.'' The delegates at the constitutional convention 
rejected the idea of a plural executive, preferring to anchor 
that responsibility in a single individual. Said John Rutledge: 
``A single man would feel the greatest responsibility and 
administer the public affairs best.'' [1 Farrand 65.]
    But placing the President at the head of the executive 
branch did not remove from Congress the power to direct certain 
executive activities and to gain access to information needed 
for the performance of legislative duties. At the Convention, 
Roger Sherman considered the executive ``nothing more than an 
institution for carrying the will of the Legislature into 
effect.'' [1 Farrand 65.] It was never the purpose to make the 
President personally responsible for executing all the laws. 
Rather he was to take care that the laws be faithfully 
executed, including laws that excluded him from operations in 
the executive branch.
    For example, from an early date Congress vested in certain 
subordinate executive officials the duty to carry out specified 
``ministerial'' functions without interference from the 
President. On many occasions an Attorney General has advised 
Presidents that they have no legal right to interfere with 
administrative decisions made by the auditors and comptrollers 
in the Treasury Department, pension officers, and other 
officials.\2\ The President is responsible for seeing that 
administrative officers faithfully perform their duties, ``but 
the statutes regulate and prescribe these duties, and he has no 
more power to add to, or subtract from, the duties imposed upon 
subordinate executive and administrative officers by the law, 
than those officers have to add or subtract from his duties.'' 
[19 Op. Att'y Gen. 685, 686-87 (1890).] In several decisions 
the Supreme Court has recognized that Congress can impose 
certain duties on executive officials that are beyond the 
control and direction of the President.\3\
---------------------------------------------------------------------------
    \2\ 1 Op. Att'y Gen. 624 (1823); 1 Op. Att'y Gen. 636 (1824); 1 Op. 
Att'y Gen. 678 (1824); 1 Op. Att'y Gen. 705 (1825); 1 Op. Att'y Gen. 
706 (1825); 2 Op. Att'y Gen. 480 (1831); 2 Op. Att'y Gen. 507 (1832); 2 
Op. Att'y Gen. 544 (1832); 4 Op. Att'y Gen. 515 (1846); 5 Op. Att'y 
Gen. 287 (1851); 11 Op. Att'y Gen. 14 (1864); 13 Op. Att'y Gen. 28 
(1869).
    \3\ E.g., Kendall v. United States, 37 U.S. 522, 610 (1838); United 
States v. Schurz, 102 U.S. 378 (1880); Butterworth v. Hoe, 112 U.S. 50 
(1884); United States v. Price, 116 U.S. 43 (1885); United States v. 
Louisville, 169 U.S. 249 (1898).
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    Agencies have a direct responsibility to Congress, the body 
that creates them. In 1854, Attorney General Caleb Cushing 
advised departmental heads that they had a threefold relation: 
to the President, to execute his will in cases in which the 
President possessed a constitutional or legal discretion; to 
the law, which directs them to perform certain acts; and to 
Congress, ``in the conditions contemplated by the 
Constitution.'' Agencies are created by law and ``most of their 
duties are prescribed by law; Congress may at all times call on 
them for information or explanation in matters of official 
duty; and it may, if it sees fit, interpose by legislation 
concerning them, when required by the interests of the 
Government.'' [6 Op. Att'y Gen. 326, 344 (1854).]

                     sole organ in foreign affairs

    During debate in the House of Representatives in 1800, John 
Marshall said that the President ``is the sole organ of the 
nation in its external relations and its sole representative 
with foreign nations.'' [Annals of Cong., 6th Cong. 613 
(1800).] This remark was later incorporated in Justice 
Sutherland's opinion in United States v. Curtiss-Wright Corp., 
299 U.S. 304, 320 (1936), to suggest that the President is the 
exclusive policymaker in foreign affairs. However, Justice 
Sutherland wrenched Marshall's statement from context to imply 
a position that Marshall never held. At no time, either in 1800 
or later, did Marshall suggest that the President could act 
unilaterally to make foreign policy in the face of statutory 
limitations.
    The debate in 1800 focused on the decision by President 
John Adams to turn over to England someone who had been charged 
with murder. Because the case was already pending in an 
American court, some Members of Congress recommended that Adams 
be impeached for encroaching upon the judiciary and violating 
the doctrine of separated powers. It was at that point that 
Marshall intervened to say that there was no basis for 
impeachment. Adams, by carrying out an extradition treaty 
entered into between England and the United States, was not 
attempting to make national policy single-handedly. Instead, he 
was carrying out a policy made jointly by the President and the 
Senate (for treaties). Only after the policy had been 
formulated through the collective effort of the executive and 
legislative branches (by treaty or by statute) did the 
President emerge as the ``sole organ'' in implementing national 
policy. The President merely announced policy; he did not alone 
make it. Consistent with that principal, Marshall later decided 
a case as Chief Justice of the Supreme Court and ruled that in 
a conflict between a presidential proclamation and a 
congressional statute governing the seizure of foreign vessels 
during wartime, the statute prevails. Little v. Barreme, 6 U.S. 
(2 Cr.) 169, 179 (1804).
    Sutherland's use of the ``sole organ'' remark in Curtiss-
Wright prompted Justice Robert Jackson in 1952 to say that the 
most that can be drawn from Sutherland's decision is the 
intimidation that the President ``might act in external affairs 
without congressional authority, but not that he might act 
contrary to an act of Congress.'' Youngstown Co. v. Sawyer, 343 
U.S. 579, 636 n.2 (1952). Jackson also noted that ``much of the 
[Sutherland] opinion is dictum.'' [Id.] In 1981, the D.C. 
Circuit cautioned against placing undue reliance on ``certain 
dicta'' in Sutherland's opinion: ``To the extent that 
denominating the President as the `sole organ' of the United 
States in international affairs constitutes a blanket 
endorsement of plenary Presidential power over any matter 
extending beyond the borders of this country, we reject that 
characterization.'' American Intern. Group v. Islamic Republic 
of Iran, 657 F.2d 430, 438 n.6 (D.C. Cir. 1981).

                 department of the navy v. egan (1988)

    The OLC memo (pp. 6-7) relies in part on the Supreme 
Court's decision in Department of the Navy v. Egan, 484 U.S. 
518 (1998). However, Egan is fundamentally a case of statutory 
construction. It involved the Navy's denial of a security 
clearance to Thomas Egan, who worked on the Trident submarine. 
He was subsequently removed. Egan sought review by the Merit 
Systems Protection Board (MSPB), but the Supreme Court upheld 
the Navy's action by ruling that the denial of a security 
clearance is a sensitive discretionary judgment call committed 
by law to the executive agency with the necessary expertise for 
protecting classified information. [Id. at 529-30.] The 
conflict in this case was within the executive branch. It was 
between the Navy and the MSPB, not between Congress and the 
executive branch.
    The focus on statutory questions was evident throughout the 
case. As the Justice Department noted in its brief submitted to 
the Supreme Court: ``The issue in this case is one of statutory 
construction and `at bottom * * * turns on congressional 
intent' '' \4\ The parties were directed to address this 
question:
---------------------------------------------------------------------------
    \4\ U.S. Department of Justice, Brief for the Petitioner, 
Department of the Navy v. Egan, October Term, 1987, at 22 (citation to 
Clarke v. Securities Industry Ass'n., No. 85-971 (Jan. 14, 1987) 
omitted).
---------------------------------------------------------------------------
    ``Whether, in the course of reviewing the removal of an 
employee for failure to maintain a required security clearance, 
the Merits Systems Protection Board is authorized by statute to 
review the substance of the underlying decision to deny or 
revoke the security clearance.'' (Italic added.)
    The statutory questions centered on 5 U.S.C. 7512, 7513, 
7532, and 7701. The brief submitted by the Justice Department 
analyzed the relevant statutes and their legislative history 
and could find no basis for determining that Congress intended 
the MSPB to review the merits of security clearance 
determinations.\5\ The entire oral argument before the Court on 
December 2, 1987, was devoted to the meaning of statutes and 
what Congress intended by them. At no time did the Justice 
Department suggest that classified information could be 
withheld from Congress.
---------------------------------------------------------------------------
    \5\ U.S. Department of Justice, Petition for a Writ of Certiorari 
to the United States Court of Appeals for the Federal Circuit, 
Department of the Navy v. Thomas E. Egan, October Term, 1986, at 4-5, 
13, 15-16, 18.
---------------------------------------------------------------------------
    The Court's deference to the Navy did not cast a shadow 
over the right of Congress to sensitive information. The Court 
decided merely the ``narrow question'' of whether the MSPB had 
statutory authority to review the substance of a decision to 
deny a security clearance. [484 U.S. at 520.] Although the 
Court referred to independent constitutional powers of the 
President, including those as Commander in Chief and head of 
the executive branch, id. at 527, and noted the President's 
responsibility over foreign policy, id. at 529, the case was 
disposed of on statutory grounds. In stating that courts 
``traditionally have been reluctant to intrude upon the 
authority of the Executive in military and national security 
affairs,'' the Court added this key qualification: ``unless 
Congress specifically has provided otherwise.'' [Id. at 530 
(italic added).] \6\ Nothing in the legislative history of the 
Civil Service Reform Act of 1978 convinced the Court that the 
MSPB could review, on the merits, an agency's security-
clearance determination. [Id. at 531 n.6.]
---------------------------------------------------------------------------
    \6\ The Court appears to have borrowed this thought, and language, 
from the Justice Department's brief: ``Absent an unambiguous grant of 
jurisdiction by Congress, courts have traditionally been reluctant to 
intrude upon the authority of the executive in military and national 
security affairs.'' U.S. Department of Justice, Brief for the 
Petitioner, Department of the Navy v. Egan, October Term, 1987, at 21.
---------------------------------------------------------------------------
    In citing the President's role as Commander in Chief, the 
Court stated that the President's authority to protect 
classified information ``flows primarily from this 
constitutional investment of power in the President and exists 
quite apart from any explicit congressional grant.'' [Id. at 
527.] If Congress had never enacted legislation regarding 
classified information, certainly the President could act in 
the absence of congressional authority. But if Congress acts by 
statute, it can narrow the President's range of action.
    It is helpful to place Egan in the context of Justice 
Jackson's three categories laid out in the Steel Seizure Case 
of 1952: (1) when the President acts pursuant to congressional 
authority his authority is at its maximum, because it includes 
everything that he possesses under the Constitution plus what 
Congress has delegated; (2) when he acts in the absence of 
congressional authority he operates in a ``zone of twilight'' 
in which he and Congress share concurrent authority; (3) when 
he acts against the expressed or implied will of Congress, his 
power is at ``its lowest ebb.'' Youngstown Co. v. Sawyer, 343 
U.S. 579, 637 (1952). Egan belongs in the middle category. The 
President's range is broad until Congress enters the zone of 
twilight and exerts its own authority.

                       the garfinkel case (1989)

    The OLC memo also relies on the litigation that led to the 
Supreme Court's decision in American Foreign Service Assn. v. 
Garfinkel, 490 U.S. 153 (1989). The progression of this case 
from district court to the Supreme Court and back to the 
district court illustrates how a lower court may exaggerate the 
national security powers of the President at the expense of 
congressional prerogatives. The district court's interpretation 
of executive power was quickly vacated by the Supreme Court.
    In 1983, President Reagan directed that all federal 
employees with access to classified information sign 
``nondisclosure agreements'' or risk the loss of their security 
clearance. Congress, concerned about the vagueness of some 
terms and the loss of access to information, passed legislation 
to prohibit the use of appropriated funds to implement the 
nondisclosure policy.
    In 1988, District Court Judge Oliver Gasch held that 
Congress lacked constitutional authority to interfere, by 
statute, with nondisclosure agreements drafted by the executive 
branch to protect the secrecy of classified information. 
National Federation of Federal Employees v. United States, 688 
F.Supp. 671 (D.D.C. 1988). Among other authorities, Judge Gasch 
relied on Egan and Curtiss-Wright. [Id. at 676, 684-85.] From 
Egan he extracts a sentence (``The authority to protect such 
[national security] information falls on the President has head 
of the Executive Branch and as Commander in Chief'') without 
acknowledging that Egan was decided on statutory, not 
constitutional, grounds. [Id. at 685.] From Curtiss-Wright he 
concludes that the ``sensitive and complicated role cast for 
the President as this nation's emissary in foreign relations 
requires that congressional intrusion upon the President's 
oversight of national security information be more severely 
limited than might be required in matters of purely domestic 
concern.'' [Id. at 685.] In fact, the issue in Curtiss-Wright 
was whether Congress could delegate its powers to the President 
in the field of foreign relations. The previous year the Court 
had struck down the National Industry Recovery Act because it 
had delegated an excessive amount of legislative power to the 
President in the field of domestic policy. Schechter Poultry 
Corp. v. United States, 295 U.S. 495 (1935); Panama Refining 
Co. v. Ryan, 293 U.S. 388 (1935). The question before the Court 
in Curtiss-Wright: Could Congress use more general standards 
when delegating its authority in foreign affairs? The Court 
held that more general standards were permissible because of 
the changing circumstances that prevail in international 
affairs. The issue before the Court was the extent to which 
Congress could delegate its power (embargo authority), not the 
existence of independent and autonomous powers for the 
President.
    Having mischaracterized both Supreme Court decisions, Judge 
Gasch concluded that Congress had passed legislation that 
``impermissibly restricts the President's power to fulfill 
obligations imposed upon him by his express constitutional 
powers and the role of the Executive in foreign relations.'' 
[Id. at 685.]
    On October 31, 1988, the Supreme Court noted probable 
jurisdiction in the Garfinkel case, [488 U.S. 923.] Both the 
House and the Senate submitted briefs objecting strongly to 
Judge Gasch's analysis of the President's power over foreign 
affairs. During oral argument, after Edwin Kneedler of the 
Justice Department spoke repeatedly about the President's 
constitutional role to control classified information, one of 
the Justices remarked: ``But, Mr. Kneedler, I just can't--I 
can't avoid interrupting you with this thought. The 
Constitution also gives Congress the power to provide for a 
navy and for the armed forces, and so forth, and often 
classified information is highly relevant to their task. 
Transcript of Oral Argument, March 20, 1989, at 57-58.''
    On April 18, 1989, the Court issued a per curiam order that 
vacated Judge Gasch's order and remanded the case for further 
consideration. In doing so, the Court cautioned Judge Gasch to 
tread with greater caution in expounding on constitutional 
matters: ``Having thus skirted the statutory question whether 
the Executive Branch's implementation of [nondisclosure] Forms 
189 and 4193 violated Sec. 630, the court proceeded to address 
appellees' argument that the lawsuit should be dismissed 
because Sec. 630 was an unconstitutional interference with the 
President's authority to protect the national security.'' 
American Foreign Service Assn. V. Garfinkel, 490 U.S. 153, 158 
(1989). The Court emphasized that the district court ``should 
not pronounce upon the relative constitutional authority of 
Congress and the Executive Branch unless it finds it imperative 
to do so. Particularly where, as here, a case implicates the 
fundamental relationship between the Branches, courts should be 
extremely careful not to issue unnecessary constitutional 
rulings.'' [Id. at 161.]
    On remand, Judge Gasch held that the plaintiffs (American 
Foreign Service Association and Members of Congress) failed to 
state a cause of action for courts to decide. American Foreign 
Service Ass'n v. Garfinkel, 732 F.Supp. 13 (D.D.C. 1990). By 
dismissing the plaintiff's complaint on this ground, Judge 
Gasch did not address any of the constitutional issues. [Id. at 
16.]

                        the lloyd-lafollette act

    The OLC memo sweeps broadly to challenge the 
constitutionality of the Lloyd-LaFollette Act, originally 
enacted in 1912. The statute responded to presidential efforts 
to block the flow of information from executive employees to 
Congress. For example, President Theodore Roosevelt in 1902 
issued a ``gag order'' prohibiting employees of the executive 
department from seeking to influence legislation ``individually 
or through associations'' except through the heads of the 
departments. Failure to abide by this presidential order could 
result in dismissal from government service. [48 Cong. Rec. 
4513 (1912).] In 1909, President William Howard Taft issued 
another gag order, forbidding any bureau chief or any 
subordinate in government to apply to either House of Congress, 
to any committee of Congress, or to any member of Congress, for 
legislation, appropriations, or congressional action of any 
kind,
    ``. . . except with the consent and knowledge of the head 
of the department; nor shall any such person respond to any 
request for information from either House of Congress, or any 
committee of either House of Congress, or any Member of 
Congress, except through, or as authorized by, the head of his 
department.'' [48 Cong. Rec. 4513 (1912).]
    Through language added to an appropriations bill in 1912, 
Congress nullified the gag orders issues by Roosevelt and Taft. 
The debate on this provision underscores the concern of 
Congress that the gag orders would put congressional committees 
in the position of hearing ``only one side of a case''; the 
views of Cabinet officials rather than the rank-and-file 
members of a department. [48 Cong. Rec. 4657 (1912).] Members 
wanted agency employees to express complaints about the conduct 
of their supervisors. [Id.] The stated purpose of the 
legislation was to ensure that government employees could 
exercise their constitutional rights to free speech, to 
peaceable assembly, and to petition the government for redress 
of grievances. [Id. at 5201.]
    In the course of debate Members of Congress viewed the gag 
orders as an effort to prevent Congress from learning ``the 
actual conditions that surrounded the employees of the 
service.'' [Id. at 5235.] If agency employees could speak only 
through the heads of the departments, ``there is no possible 
way of obtaining information excepting through the Cabinet 
officers, and if these officers desire to withhold information 
and suppress the truth or to conceal their official acts it is 
within their power to do so.'' [Id. at 5634 (statement of Rep 
Lloyd).] Another legislator remarked: ``The vast army of 
Government employees have signed no agreement upon entering the 
service of the Government to give up the boasted liberty of the 
American citizens.'' [Id. at 5637 (statement of Rep. Wilson).] 
Even more explicit was this statement during debate in the 
Senate: ``Mr. President, it will not do for Congress to permit 
the executive branch of this Government to deny to it the 
sources of information which ought to be free and open to it, 
and such an order as this, it seems to me, belongs in some 
other country than the United States.'' Id. at 10674 (statement 
of Senator Reed).
    The language used to nullify the gag orders was added as 
Section 6 to the Postal Services Appropriations Act of 1912. 
[37 Stat. 539, 555 (1912).] Section 6, known as the Lloyd-
LaFollette Act, provides a number of procedural safeguards to 
protect agency officials from arbitrary dismissals. The final 
sentence of Section 6 reads: ``The right of persons employed in 
the civil service of the United States, either individually or 
collectively, to petition Congress, or any Member thereof, or 
to furnish information to either House of Congress, or to any 
committee or member thereof, shall not be denied or interfered 
with.''
    Section 6 was later carried forward in the Civil Service 
Reform Act of 1978 and codified as permanent law. [5 U.S.C. 
7211 (1994).] The conference report on this statute elaborates 
on the need for executive employees to disclose information to 
Congress:
    ``The provision is intended to make clear that by placing 
limitations on the kinds of information an employee may 
publicly disclose without suffering reprisal, there is no 
intent to limit the information an employee may provide to 
Congress or to authorize reprisal against an employee for 
providing information to Congress. For example, 18 U.S.C. 1905 
prohibits public disclosure of information involving trade 
secrets. That statute does not apply to transmittal of such 
information by an agency to Congress. Section 2302(b)(8) of 
this act would not protect an employee against reprisal for 
public disclosure of such statutorily protected information, 
but it is not to be inferred that an employee is similarly 
unprotected if such disclosure is made to the appropriate unit 
of the Congress. Neither title I nor any other provision of the 
act should be construed as limiting in any way the rights of 
employees to communicate with or testify before Congress.'' S. 
Rept. No. 1272, 95th Cong., 2d Sess. 132 (1978).

                  whistleblower protection act of 1989

    Congress enacted legislation in 1989, finding that federal 
employees who make disclosures described in 5 U.S.C. 2302(b)(8) 
``serve the public interest by assisting in the elimination of 
fraud, waste, abuse, and unnecessary Government expenditures'' 
and that ``protecting employees who disclose Government 
illegality, waste, and corruption is a major step toward a more 
effective civil service.'' [103 Stat. 16, Sec. 2(a) (1989).] 
Employees may disclose information which they reasonably 
believe evidences a violation of any law, rule, or regulation, 
or constitutes gross mismanagement, a gross waste of funds, an 
abuse of authority, or a substantial and specific danger to 
public health or safety. Such disclosures are permitted unless 
``specifically prohibited by law and if such information is not 
specifically required by Executive order to be kept secret in 
the interest of national defense or the conduct of foreign 
affairs.'' [103 Stat. 21.] In signing the bill, President Bush 
said that ``a true whistleblower is a public servant of the 
highest order . . . these dedicated men and women should not be 
fired or rebuked or suffer financially for their honesty and 
good judgment.'' [Public Papers of the Presidents, 1989, I, at 
391.]

               congressional access to agency information

    To perform its legislative and constitutional functions, 
Congress depends on information available from the executive 
branch. The Supreme Court remarked in 1927 that a legislative 
body ``cannot legislate wisely or effectively in the absence of 
information respecting the conditions which the legislation is 
intended to affect or change; and where the legislative body 
does not itself possess the requisite information--which not 
infrequently is true--recourse must be had to those who do 
possess it.'' McGrain v. Daugherty, 273 U.S. 135, 175 (1927). 
Investigation is a prerequisite for intelligent lawmaking, and 
much of the information that Congress requires is located 
within the executive branch. Congress needs information to 
enact legislation, to oversee the administration of programs, 
to inform the public, and to protect its integrity, dignity, 
reputation, and privileges. To enforce these constitutional 
duties, Congress possesses the inherent power to issue 
subpoenas and to punish for contempt. Eastland v. United States 
Servicemen's Fund, 421 U.S. 491, 505 (1975); Anderson v. Dunn, 
19 U.S. (6 Wheat.) 204 (1821). The Supreme Court has said that 
the power of Congress to conduct investigations ``comprehends 
probes into departments of the Federal Government to expose 
corruption, inefficiency or waste.'' Watkins v. United States, 
354 U.S. 178, 187 (1957).
    The power of Congress to investigate reaches to all sectors 
of executive branch activity, not merely domestic policy but 
also foreign, military, and national security policy. The first 
major congressional investigation, in 1792, involved the ill-
fated expedition of Major General St. Clair, whose forces met 
heavy losses to the Indians. A House committee was empowered 
``to call for such persons, papers, and records, as may be 
necessary to assist their inquiries.'' After President 
Washington, met with his Cabinet to consider the House request, 
it was agreed that there was not a paper ``which might not be 
properly produced.'' Louis Fisher, Constitutional Conflicts 
between Congress and the President 161 (4th ed. 1997).
    To buttress its power to investigate, Congress frequently 
has enacted statutory language to require the executive branch 
to produce information. When Congress passed the Budget and 
Accounting Act of 1921, it directed the newly established 
Bureau of the Budget (now the Office of Management and Budget) 
to provide Congress with information. The Bureau ``shall, at 
the request of any committee on either House of Congress having 
jurisdiction over revenue or appropriations, furnish the 
committee such aid and information as it may request.'' [42 
Stat. 20, 23, Sec. 212.] The current version regarding 
congressional requests for information in the budget area 
appears at 31 U.S.C. 1113 (1994).
    As part of the National Security Act, Congress in 1991 
required the Director of Central Intelligence and the heads of 
all departments, agencies, and other entities of the U.S. 
government involved in intelligence activities to keep the 
Intelligence Committees ``fully and currently informed of all 
intelligence activities,'' other than a covert action. The 
procedures for covert actions are spelled out elsewhere. The 
Intelligence Committees are to receive ``any information or 
material concerning intelligence activities * * * which is 
requested by either of the intelligence committees in order to 
carry out its authorized responsibilities.'' \7\
---------------------------------------------------------------------------
    \7\ Compilation of Intelligence Laws and Related Laws and Executive 
Orders of Interest to the National Intelligence Community, prepared for 
the use of the House Permanent Select Committee on Intelligence, 104th 
Cong., 1st Sess. 20 (Committee Print July 1995); 50 U.S.C. 413a, as 
added by the intelligence authorization act for fiscal 1991, P.L. 102-
88, 105 Stat. 442.
---------------------------------------------------------------------------
    Congress also relies on the assistance of employees within 
the executive branch. Upon the request of a congressional 
committee or a committee member, any officer or employee of the 
State Department, the U.S. Information Agency, the Agency for 
International Development, the U.S. Arms Control and 
Disarmament Agency, ``or any other department, agency, or 
independent establishment of the United States Government 
primarily concerned with matters relating to foreign countries 
or multilateral organizations may express his views and 
opinions, and make recommendations he considers appropriate, if 
the request of the committee or member of the committee relates 
to a subject which is within the jurisdiction of that 
committee.'' [2 U.S.C. 194a (1994).]

                              conclusions

    The text and intent of the Constitution, combined with 
legislative and judicial precedents over the past two 
centuries, provide strong support for congressional access to 
information within the executive branch. Without that 
information, Congress would be unable to adequately discharge 
its legislative and constitutional duties. It could not 
properly oversee executive branch agencies, which are creatures 
of Congress. Part of legislative access depends on executive 
employees--the rank-and-file--who are willing to share with 
Congress information about operations within their agencies. On 
the basis of two centuries of experience, Congress knows the 
value of gaining access to information regarding agency 
corruption and mismanagement that an administration may want to 
conceal.
    No doubt the executive branch has an interest in seeing 
that agency information is disclosed only through authorized 
channels. Part of that concern has been directed toward 
controlling information that might be embarrassing to the 
agency, and the administration, if released. There is no legal 
or constitutional justification for concealing that kind of 
information. To the extent that the concern of the executive 
branch is directed toward the control of information that might 
be damaging to national security, the Intelligence Committees 
have procedures in place designed to protect against such 
damage. To question these procedures would put the executive 
branch in the position of asserting that only its procedures 
can safely protect national security, even at the cost of 
denying Congress the information it needs to discharge its 
constitutional duties.

    STATEMENT OF DR. LOUIS FISHER, PH.D., SENIOR SPECIALIST 
(SEPARATION OF POWERS), CONGRESSIONAL RESEARCH SERVICE, LIBRARY 
                          OF CONGRESS

    Dr. Fisher. Thank you very much. I'll summarize the main 
points.
    As you mentioned, I've testified before Congress before and 
although I am a staff member of Congress, I try in my testimony 
to look at the issues in terms of the structure of government 
and to see how certain reforms would affect the institutions. 
In previous testimony on certain bills, I've concluded that a 
bill will entrench upon the President's power or will endanger 
judicial powers. I try and look at all three branches to see 
how they can operate most effectively and most consistently 
with their constitutional duties.
    Section 306 seems to me an appropriate and constitutional 
way for Congress to protect its own responsibilities and own 
duties to the citizens. I think that is particularly so because 
of the reforms in the 1970's that set up the two Intelligence 
Committees. Unlike other Committees where many Committees may 
have jurisdiction and a responsibility, the duty here to 
monitor the Intelligence Community is solely on you and the 
House Committee. So I think the need for you to have the access 
to carry out your responsibilities is very great and should not 
be restricted.
    I do think the way Section 306 is written, there are 
sufficient safeguards there to protect information and to 
protect Executive----
    Chairman Shelby. Would you say that this is a logical 
extension of our oversight on both Intelligence Committees of 
what we do?
    Dr. Fisher. Logical.
    Chairman Shelby. Very logical.
    Dr. Fisher. And very consistent.
    Chairman Shelby. Okay.
    Dr. Fisher. The only suggestion I make in my testimony 
regarding 306 is that currently it is a two step process. You 
make a statement and then the policy to be implemented requires 
Presidential action. One alternative is just to let the policy 
be national policy, legislative policy, and not require a 
second step, and the President can always issue whatever 
guidelines he considers appropriate. But let it be a one step 
process.
    My statement begins by looking at the analysis by the 
Office of Legal Counsel, which challenged this kind of 
legislation in its 1996 memo, and then I turn to some other 
issues.
    OLC starts by saying that the President has this unusual 
authority over classified information because he is Commander-
in-Chief, he's head of the Executive branch, and he is the sole 
organ in the field of foreign affairs.
    I think those three categories are so general they don't do 
justice to the complexity of the issue that you're dealing 
with. First of all, the Commander-in-Chief clause doesn't give 
the President unrestricted power. The scope of the Commander-
in-Chief clause depends, in large part, on what you do in 
Congress through statutory process in restricting and 
channeling the Commander-in-Chief clause. There is nothing in 
the history of the Commander-in-Chief clause to suggest that 
Congress could be denied classified information it needs to 
perform its constitutional duties.
    The same with the argument of the President being head of 
the Executive branch. He is that, but that depends on statutes, 
on what duties you place in Executive employees, what rights 
you place there.
    The President is to take care that the laws are faithfully 
executed. It doesn't mean that the Executive branch is 
hierarchical in that every employee is subordinate to the 
President. It depends on the statutory framework. There are 
many statutes that have placed certain duties and rights into 
other agencies, and the President may not interfere. It's well 
established in law, it is well established in Supreme Court 
decisions.
    The third category, the President being sole organ in 
foreign affairs, this is a misconception that comes out of the 
famous 1936 Curtis-Wright case. It's purely dicta, and it's a 
misconception in the sense that the term ``sole organ'' comes 
from a speech that John Marshall gave when he was a member of 
the House in 1800.
    If you look at the context of the speech, John Marshall 
never argued that the President has some sort of exclusive 
control over foreign affairs. The issue was simply after 
Congress and the President decide what national policy is, 
either by a treaty or by a statute, at that point, the 
President is the sole organ in communicating to other countries 
what our policy is. The President doesn't have sole power to 
make the policy. That's done with Congress. After the policy is 
decided, then he is the sole organ.
    It is an unfortunate misconception by Justice Sutherland in 
the Curtiss-Wright case, and it is repeated ever since. There 
is no doubt that John Marshall, even when he was on the Court, 
never thought that the President had any exclusive control, and 
that if a statute restricted the President, what governed was 
the statute, not the Presidential action. And that's borne out 
in the Little (v.) Barreme case in 1804.
    The Justice Department also relies on two cases, Egan and 
Garfinkel. Egan, 1988, shouldn't be used to restrict the right 
of Congress to information. Egan was a statutory matter, it 
wasn't a constitutional matter. It was not a conflict between 
the Executive branch and Congress. It was a conflict inside the 
Executive Branch between the Navy and the Merit Systems 
Protection Board.
    The case was briefed that was, was argued that way. The 
oral argument makes it clear that is a statutory matter of 
whether MSPB has this kind of authority. People asked what do 
the statutes say, what did Congress mean when it wrote the 
other statutes. A purely statutory matter.
    There is some language in the Egan case by the Supreme 
Court that talks about some constitutional issues, and if you 
read it, you may think the President has unusual authority. For 
instance, the Supreme Court said that courts, ``traditionally 
have been reluctant to intrude upon the authority of the 
Executive in military and national security affairs,'' but then 
there is a qualifier, ``unless Congress specifically has 
provided otherwise.''
    It's also important that the courts are reluctant. It 
doesn't mean that Congress has to be reluctant. Congress has 
very broad authority in the field of national security, unlike 
the courts.
    The Garfinkel case, the next year in 1989, concerned non-
disclosure agreements. This was a case where the lower courts, 
Judge Gasch, wrote in such a way to suggest that the President 
had the dominant voice in foreign affairs and national 
security, but as that went up the line, both the House and the 
Senate filed briefs vigorously objecting to Judge Gasch's 
position. The Supreme Court, when it handled the issue, sent it 
back down to the District Court advising the District Court to 
stay away from generalizations that are not necessary, 
particularly constitutional generalizations. And the District 
Court complied.
    The rest of my statement has to do with other issues, like 
the Lloyd-LaFollette Act. It's been in place since 1912, where 
President Taft and President Teddy Roosevelt issued gag orders 
so that Executive employees could not come to Committees or to 
Members to provide information. Congress responded with a 
statute to give them that right. It's been in place since 1912. 
To my knowledge, not until 1996 was there a challenge 
constitutionally----
    Chairman Shelby. I assume the statute was never vetoed, the 
legislation.
    Dr. Fisher. It was signed into law.
    Chairman Shelby. Signed into law: Go ahead.
    Dr. Fisher. And when you look at the history of this, 
whatTaft and Teddy Roosevelt were saying is that don't get information 
from agency employees. You come to the Cabinet heads and we'll spoon 
feed legislators. Congress felt that it couldn't discharge its 
constitutional duties being given such a limited amount of information.
    So this is part of the history of Congress to obtain 
information, not just from Cabinet officials, but from lower 
level employees. Next is the Whistleblower Protection Act of 
1989. When that was signed into law by President Bush, he said 
that ``a true whistleblower is a public servant of the highest 
order * * * these dedicated men and women should not be fired 
or rebuked or suffer financially for their honesty and good 
judgment.''
    My statement concludes with a number of statutes and 
constitutional decisions by the Court that give Congress the 
opportunity and the right to obtain whatever information it 
needs to carry out probes of the Executive branch into 
corruption, waste, inefficiency. Our Constitution has been read 
that way from the start, even in national security matters.
    The first investigation by Congress was 1792 into the St. 
Clair Expedition. There was never any doubt on the Executive 
branch side that whatever information Congress needed to 
conduct its investigation, it would obtain, and received the 
cooperation of the Executive branch.
    So those are some of my initial comments, Mr. Chairman. I'd 
be happy, after Mr. Raven-Hansen speaks, to respond to any 
questions after his testimony.
    Thank you very much.
    Chairman Shelby. Professor Raven-Hansen.
    Mr. Raven-Hansen. Thank you.
    Chairman Shelby. Your entire written statement will be made 
part of the record. You proceed as you wish.
    Mr. Raven-Hansen. I had previously submitted a more 
comprehensive analysis of the issues that I prepared with 
Professor Banks of Syracuse Law School, and I would ask that 
that be made part of the record.
    Chairman Shelby. It will be made part of the record in its 
entirety.
    Mr. Raven-Hansen. Thank you very much.
    [The statements referred to follow:]
 Statement of Professor Peter Raven-Hansen, Glen Earl Weston Research 
       Professor of Law, George Washington University Law School
    Thank you for the invitation to testify today about the 
constitutional issues raised by disclosure bills like S. 858. I have 
previously (Oct. 22, 1997) submitted a more comprehensive analysis of 
the issues that I prepared with my colleague and co-author, Professor 
William C. Banks of Syracuse University College of Law, and I ask that 
it be made part of the record together with this statement.
    Let me begin by anticipating the argument that may be made on 
behalf of the executive branch that bills like S. 858 are 
unconstitutional. That argument will center on the Supreme Court's 
statement in Department of the Navy v. Egan \1\ that the President's 
``authority to classify and control access to information bearing on 
national security . . . flows primarily from [the Commander in Chief 
Clause] and exists quite apart from any explicit congressional grant.'' 
Consequently, the argument will conclude, as the Office of Legal 
Counsel did in 1989 regarding another disclosure statute, that the 
President has ``ultimate and unimpeded authority over the collection, 
retention, and dissemination of intelligence and other national 
security information'' \2\ and that any statutory limitation on this 
authority is therefore unconstitutional.
---------------------------------------------------------------------------
    \1\ 484 U.S. 518, 527 (1988).
    \2\ Memorandum from Christopher H. Schroeder (Acting Assistant 
Attorney General, Office of Legal Counsel) to Michael J. O'Neil at 4 
(``OLC memo'') (quoting Brief for Appellees at 42, American Foreign 
Serv. Ass'n v. Garfinkel, 490 U.S. 153 (1989) (No. 87-2127)).
---------------------------------------------------------------------------
    The premises of this logic are incomplete and the conclusion is 
wrong.
I. The President and Congress share constitutional authority to 
        regulate classified information
    Both the constitutional text and historical practice establish that 
the President and Congress share constitutional authority to regulate 
classified information.
    In the first place, there is no express constitutional text 
regarding the collection, retention, and dissemination of intelligence 
and national security information. The President's authority on this 
subject is implied, flowing from his constitutional designation as 
Commander in Chief. But if regulation of national security information 
is implicit in the command authority vested in the President by the 
Commander in Chief Clause, it is equally implicit in the nine express 
textual grants of national security and foreign affairs authority to 
Congress. These range from the authority provide for the Common Defense 
to the authority to make rules for the government and regulation of the 
land and naval forces.\3\ It is also implicit in Congress' residual 
authority to make all laws which shall be necessary and proper for 
carrying into execution not just this broad collection of national 
security authorities, but also all the national security authority 
vested in the President and the executive branch.\4\
---------------------------------------------------------------------------
    \3\ U.S. Const. art. I, Sec. 8, cl. 10-16.
    \4\ Id. cl. 18.
---------------------------------------------------------------------------
    In fact, the only express constitutional authority for keeping 
governmental information secret is given not to the President, but to 
Congress. The Constitution vests each house with the authority to 
except from publication ``such Parts [of its journal] as may in their 
Judgment require Secrecy.'' \5\
---------------------------------------------------------------------------
    \5\ Id. Sec. 4, cl. 3.
---------------------------------------------------------------------------
    Because the President has implied constitutional authority to 
regulate classified information, he does not need congressional 
authority, as Egan stated. But the Egan dictum acknowledged only that 
he has such constitutional authority, not that he alone has it. Indeed, 
the Court's ultimate holding in Egan--that an executive decision to 
deny a security clearance to an executive branch employee was not 
reviewable by the Merit Systems Protection Board--expressly depended on 
the fact that Congress has not ``specifically * * * provided 
otherwise.'' \6\ Egan is therefore consistent with the conclusion that 
the President and Congress share authority in the regulation of 
national security information. To paraphrase Justice Jackson, Egan, 
``intimated that the President might act [to regulate classified 
information] without congressional authority, but not that he might act 
contrary to an Act of Congress * * *.'' \7\
---------------------------------------------------------------------------
    \6\ 484 U.S. at 530.
    \7\ Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579, 637 n .2 
(1952) Justice Jackson was explaining similar dicta in United States v. 
Curtiss-Wright Export Corp., 299 U.S. 304 (1936), which, like Egan, is 
also frequently mis-cited as authority for plenary and exclusive 
presidential power.
---------------------------------------------------------------------------
    In fact, the President and Congress have acted together to regulate 
classified information since the beginnings of our organized system for 
protecting national security information. In our previously submitted 
analysis, Professor Banks and I cite over a dozen statutes ranging over 
an eighty-year period to demonstrate this point, ranging from to the 
Espionage Act of 1917, which first criminalized certain uses of 
national security information to harm the United States, to the 
Protection and Reduction of Government Secrecy Act of 1994 \8\ which 
established the framework and minimum procedures for deciding access to 
classified information on which the current executive order is based. 
What these statutes have in common is that they pervasively regulate 
the dissemination and protection of classified information and 
consistently reserve the right of Congress, at large or by its 
intelligence committees, to receive such information. The Supreme 
Court's recognition that there is ``abundant statutory precedent for 
the regulation and mandatory disclosure of documents in the possession 
of the Executive Branch'' \9\ therefore applies as fully to classified 
as to unclassified materials.
---------------------------------------------------------------------------
    \8\ Pub. L. No,. 103-236, 108 Stat. 525 (1994), codified at 50 
U.S.C. Sec. 435 (1994).
    \9\ Nixon v. Administrator of General Services, 433 U.S. 425, 445 
(1977).
---------------------------------------------------------------------------
    In short, it is far too late in the day for anyone credibly to 
assert that the President's constitutional authority to regulate 
national security information is somehow plenary and exclusive. 
Instead, the constitutional text and history establish that the 
President and Congress share implied constitutional authority in this 
area.
II. Any intrusion on the President's constitutionally assigned national 
        security functions resulting from the disclosure provision is 
        justified by an overriding need to promote constitutional 
        objectives of Congress
    The pertinence of the foregoing conclusion, according to Justice 
Kennedy, is this: when a constitutional power is ``not explicitly 
assigned by the text of the Constitution to be within the sole province 
of the President,'' but instead is only an implied power, the 
constitutionality of a statute affecting it is decided by ``a balancing 
approach.'' Using this approach, we must ask whether the statute at 
issue prevents the President ``from accomplishing [his] 
constitutionally assigned functions,'' and whether the extent of the 
intrusion on the President's powers `is justified by anoverriding need 
to promote objectives within the constitutional authority of 
Congress.'' ' 10 In this balancing, the Court has also said, 
undifferentiated claims by one branch must yield to the specific needs 
of another.11 But it has also found that ``regulation of 
material generated in the Executive Branch has never been considered 
invalid as an invasion of its autonomy.'' 12
---------------------------------------------------------------------------
    \10\ Public Citizen v. United States Dept. of Justice, 491 U.S. 
440, 485 (1989) (quoting Morrison v. Olson, 487 U.S. 654, 695 (1988)) 
(in turn, quoting Nixon v. Administrator, 433 U.S. at 443).
    \11\ United States v. Nixon, 418 U.S. 683 (705-06) (1974).
    \12\ Nixon v. Administrator, 433 U.S. at 445 (emphasis added). The 
only decision to the contrary, National Federation of Federal Employees 
v. United States, 688 F. Supp. 671 (D.D.C. 1988), was promptly vacated 
by the Supreme Court, 490 U.S. 153 (1989), which disparaged the 
district court's analysis as ``abbreviated'' and admonished the court 
on remand not to ``pronounce upon the relative constitutional authority 
of Congress and the executive Branch unless it finds it imperative to 
do so.'' Id. at 161.
---------------------------------------------------------------------------
            a. The disclosure provisions intrusion on the President's 
                    national security functions
    The Office of Legal Counsel has asserted that a disclosure under S. 
858 would ``circumvent[]'' the orderly executive branch procedure for 
disclosure of classified information, which involves access 
determinations by executive delegates of the President, and the 
corresponding chain of command. Such a disclosure may therefore deny 
the President and his delegates the opportunity to invoke 
constitutionally-based claims of executive privilege and claims of 
state secrets, as well as to take steps to protect their ``sources and 
methods.''
    This assessment of the disclosure provision's intrusion on the 
President's functions is substantially exaggerated for several reasons.
    First, the disclosure provision encourages disclosure of only a 
small subset of classified information: that which provides ``direct 
and specific evidence'' of: ``a violation of law, rule, or regulation; 
a false statements to Congress on an issue of material fact; or gross 
mismanagement, a gross waste of funds, an abuse of authority, or a 
substantial and specific danger to public health or safety.'' Under the 
President's own executive order, ``[i]n no case shall information be 
classified in order to . . . conceal violations of law, inefficiency, 
or administrative error [or to] prevent embarrassment to a person, 
organization, or agency.'' 13 False statement to Congress 
are themselves violations of law.14 Unless, therefore, gross 
mismanagement, a gross waste of funds, an abuse of authority, or a 
substantial and specific danger to public health or safety is not 
either ``inefficiency'' or ``administrative error,'' none of the 
information targeted by the disclosure provision is properly classified 
according to the President's own standards.
---------------------------------------------------------------------------
    \13\ Exec. Order No. 12,958 Sec. 1.8(a), 60 Fed. Reg. 19,825 
(1995).
    \14\ Although the Supreme court has recently suggested that the 
false statements criminal statute, 18 U.S.C. Sec. 1001 (1994), does not 
apply to statements made to Congress, Hubbard v. United States, 514 
U.S. 695 (1995), such statements may still constitute obstruction of 
justice, 18 U.S.C. Sec. 1505 (1994), or perjury. 18 U.S.C. Sec. 1621 
(1994).
---------------------------------------------------------------------------
    Second, the disclosure provision is aimed at encouraging--and 
ultimately protecting--only the employee who ``reasonably'' believes 
that the classified information falls into this subset. The employee 
who discloses information he knows falls outside this subset, or which 
he unreasonably believes falls within it, is not covered by the bill. 
As a result, deliberate or reckless disclosure of classified 
information which falls outside the disclosure provision is neither 
encouraged nor protected by it.
    Third, the bill encourages disclosure only to members of 
congressional committees with oversight over the governmental unit to 
which the information relates. and not to the world oreven to the 
Congress at large. Because section 306(c) covers only ``employees'' of 
agencies within the national intelligence community, most of the 
classified information they are encouraged to disclose would relate to 
that community, and the contemplated disclosures would be made chiefly 
to the intelligence committees. As you, of course, intimately know, 
these committees operate under specially-enacted rules ``to protect 
from unauthorized disclosure all classified information, and all 
information relating to intelligence sources and methods, that is 
furnished to the[m]. . . .'' \15\
---------------------------------------------------------------------------
    \15\ Id.
---------------------------------------------------------------------------
    In light of these limitations in the disclosure provision, we can 
now describe more precisely the provision's intrusion on the 
President's constitutionally assigned functions. The intrusion that the 
provision risks is that (1) executive branch employees with access to 
classified information will reasonably, but erroneously, conclude that 
such information provides direct and specific evidence of the actions 
listed in the disclosure provisions, and (2) disclose it to a member or 
staff member of a congressional committee that either is not subject to 
the protective safeguards governing the intelligence committees, or who 
is, but disregards them, with the result that (3) lawfully classified 
information--including information that may be subject to executive or 
state secrets privileges--is compromised, harming the national 
security.
            b. The congressional interests
    The chief legislative interest advanced by the disclosure provision 
is the oversight of the national security and intelligence communities. 
The Supreme Court has declared that the right to information is 
inherent in the power to legislate \16\ and is a broad as the power to 
enact and appropriate.\17\ The Court has also acknowledged a related 
congressional interest in regulating information in the executive 
branch.\18\
---------------------------------------------------------------------------
    \16\ McGrain v. Daughtery, 273 U.S. 135, 175 (1927).
    \17\ Barenblatt v. United States, 360 U.S. 109, 111 (1959). In 
Barenblatt, the Court added that Congress ``cannot inquire into matters 
which are within the exclusive province of one of the other branches of 
the Government.'' Id. at 111-12. As I have noted, supra, the 
constitutional text and historical practice refute any claim that 
national security or foreign affairs are within the ``exclusive'' 
province of the executive.
    \18\ Nixon v. Administrator, 433 U.S. 425.
---------------------------------------------------------------------------
    Whether the congressional need for information is ``overriding'' 
for purposes of the mandated constitutional balancing analysis, 
however, turns in part on how specific it is Generalized congressional 
interests do not weigh as heavily in the balancing as more specifically 
defined interests and do not override specific executive interests.
    The disclosure provision, however, does narrow Congress's 
generalized interest in national security information to three specific 
interests. The first--the congressional interest in direct and specific 
evidence of ``a false statement to Congress on an issue of material 
fact''--is among the weightiest interests Congress can assert, because 
it protects the integrity of Congress's fact-finding process. As Judge 
Gerhard Gesell emphasized in the North litigation, ``[i]t is essential 
that Congress legislate based on fact, not falsifications, in the realm 
of foreign affairs as well as in domestic legislation.'' \19\ Without 
access to evidence showing that it been given false information, 
Congress is wholly dependent on the executive branch to police the 
accuracy of its own submissions. Ironically, therefore, this provision 
permits Congress--and this Committee in particular--to trust the 
information which it is officially given by the executive branch, by 
giving it an independent check on such information.
---------------------------------------------------------------------------
    \19\ United States v. North, 708 F. Supp. 380, 383 (D.D.C. 1988).
---------------------------------------------------------------------------
    It is no rebuttal to assert that national security sometimes 
requires the executive to lie to Congress. There is no executive or 
state secret privilege to lie, as Judge Gesell also emphatically 
stated. Addressing precisely the kind of lies that the disclosure 
provision targets, he said that ``where, as here, power is shared among 
the branches, willful and deliberate deceit . . . cannot be excused on 
constitutional grounds.'' \20\
---------------------------------------------------------------------------
    \20\ Id.
---------------------------------------------------------------------------
    Nor, it follows, can a denial of access by Congress to direct and 
specific evidence of such deceit be excused on constitutional grounds. 
I believe that there is no question that Congress's overriding need for 
such information justifies any intrusion on the President's authority 
resulting from the ``false statement'' subprovision of the disclosure 
provision.
    The disclosure provision also seeks to insure that Congress obtains 
evidence of ``a violation of any law, rule, or regulation.'' This, too, 
is a concrete and specific need that is ``overriding'' in this setting. 
In addition to the obvious utility of such information for carrying out 
the congressional oversight function, as well as for revising existing 
law and enacting new law, the need for this category of information is 
underscored by the fact that this information indicates that executive 
oversight and execution has, by definition, failed. Furthermore, the 
President has himself recognized Congress's and the public's need for 
such information by prohibiting classification ``to conceal violations 
of law.''
    Finally, the disclosure provision also encourages disclosure of 
direct and specific evidence of ``gross mismanagement, a gross waste of 
funds, an abuse of authority, or a substantial andspecific danger to 
public health or safety.'' Although this subprovision corresponds 
roughly to the executive prohibition on the classification of 
information to conceal ``inefficiency'' or ``administrative error,'' 
its terms are intrinsically ambiguous, leaving the employee to make a 
difficult judgment with little direct guidance from Congress. This 
subprovision therefore potentially targets the largest category of 
classified information, and, in so doing, poses the greatest risk of 
error by the disclosing employee. Moreover, as a sort of catch-all, 
this provision reflects a congressional interest that is hardly more 
specific than a generalized need for oversight information, which may 
not be sufficiently overriding to justify an intrusion on specific 
executive national security functions.
    An important countervailing consideration, however, is that the 
general secrecy and attenuated oversight to which the national 
intelligence community is subject heightens the congressional need for 
this kind of evidence from executive branch employees. As the members 
of this Committee know better than anyone, under the existing statutory 
regime, not only do national security official enjoy enormous 
discretion with few specific statutory restraints, but they are largely 
spared the fiscal accountability to which other, more ``transparent'' 
public bureaucracies are routinely subjected.\21\ Secret budgets, 
secret spending, and classified information conspire to limit media 
oversight of the national intelligence community as well. One does not 
have to suspect the national security and intelligence communities of 
bad faith or worse, and I emphatically do not, to recognize that the 
system under which they currently operate fosters bureaucracy and 
hampers accountability. For this reason, Congress may, after all, have 
a special need for employee disclosures in the bill's third category to 
compensate for the severe restraints on other methods of assuring the 
accountability of the national security and intelligence communities to 
Congress and the public.
---------------------------------------------------------------------------
    \21\ See, e.g., William C. Banks & Peter Raven-Hansen, National 
Security Law and the Power of the Purse 51-53, 100-105 (1994).
---------------------------------------------------------------------------
III. The disclosure provision could be revised to strengthen its 
        constitutionality
    Professor Banks and I have made several suggestions to strengthen 
the constitutionality of the disclosure provision in our prior 
submission to the Committee. I will close by noting the most important 
of these.
    As written, the provision encourages executive branch employees to 
bring their information to any committee with jurisdiction over the 
subject. But most of these committees are not presently subject to 
security rules and do not have safeguards in place to protect 
classified information. We therefore recommend that the ``covered 
individuals'' defined in section 306(a)(3) be narrowed to members or 
security-cleared staff of the intelligence committees. Because a 
statute \22\ requires these committees to operate under house rules to 
protect classified information from unauthorized disclosure, employee 
disclosures of classified information to them are less likely to 
compromise such information than disclosures to less secure committees, 
their members, or staff. Although we understand that our committees, 
including notably the appropriations committees, may also have a 
legitimate legislative need for such information, each intelligence 
committee is already directed by statute, in accordance with secure 
procedures, ``to promptly call to the attention of this respective 
House, or to any appropriate committee or committees of the respective 
House, any matter relating to intelligence activities requiring the 
attention of such House or such committee or committees.'' \23\
---------------------------------------------------------------------------
    \22\ See, e.g., 50 U.S.C. Sec. 413(d)(1994).
    \23\ Id.
---------------------------------------------------------------------------
    Altelrnatively, if jurisdictional considerations, as a practical 
matter, prevent the suggested limitation of ``covered persons'' to just 
the members and staff of the intelligence committees, the disclosure 
provision might be enhanced by inclusion of a subprovision requiring 
the application of the existing rules and procedures for protecting 
classified information to any committees to whom disclosures may be 
made under the provision.\24\ In any case, specific identification of 
the covered committees by name would reduce the risk that an employee 
will mistakenly disclose to persons who are not covered by the 
disclosure provision. The provision as currently drafted leaves an 
ambiguity that invites such error.
---------------------------------------------------------------------------
    \24\ Such a subprovision would largely track 50 U.S.C. 
Sec. 413(d)(1994).
---------------------------------------------------------------------------
    That completes my testimony. Thank you.
                               __________
                   The George Washington University
                                                Law School,
                                  Washington, DC, October 22, 1997.
Senator Richard C. Shelby, Chairman,
Senator J. Robert Kerrey, Vice Chairman,
U.S. Senate, Select Committee on Intelligence, Washington, DC.
    Dear Senators Shelby and Kerrey: We are pleased to respond to the 
invitation in your letter of October 7 to provide comments and opinions 
concerning section 306, entitled ``Encouragement of Disclosure of 
Certain Information to Congress'' (hereinafter ``The Disclosure 
Provision''). In addition to the disclosure provision, we have reviewed 
the November 26, 1996, memorandum from Christopher H. Schroeder (Acting 
Assistant Attorney General, Office of Legal Counsel) to Michael J. 
O'Neil regarding congressional access to classified information (``OLC 
memo''), the June 18, 1997, Statement of Administration Policy on S. 
858, and various other authorities pertinent to this debate.
    We conclude that the disclosure provision is clearly constitutional 
insofar as it relates to classified information that provides direct 
and specific evidence of a false statement to Congress on an issue of 
material fact. Although the question is closer, we also conclude that 
the balance of the disclosure provision is constitutional. The case for 
its constitutionality, however, could be strengthened by several 
changes to narrow and/or clarify its coverage.
    In the following four sections, we briefly describe the two 
analytic approaches taken by the Supreme Court to resolve separation-
of-powers disputes, explain why the OLC memo errs by taking the wrong 
approach to answer the separation-of-powers question posed by the 
disclosure provision,\1\ apply the proper balancing approach to this 
question to reach our conclusions concerning the constitutionality of 
the provision, and suggest a few changes that would strengthen the case 
for the provision's constitutionality.
---------------------------------------------------------------------------
    \1\ In National Federal Employees v. United States, 688 F Supp. 671 
(D.D.C. 1998), vacated sub nom. American Foreign Serv. Assn's v. 
Garfinkel, 490 U.S. 153 (1989), the district court made the same error 
in striking down and appropriations rider designed to limit enforcement 
of nondisclosure agreements. Its decision--apparently the first and 
only decision in our history in which a federal court found an 
appropriations law unconstitutional for intruding impermissibly on 
executive power--was subsequently vacated for mootness by the Supreme 
Court. The Supreme Court disparaged the district court's analysis as 
``abbreviated'' and admonished the court on remand not to ``pronounce 
upon the relative constitutional authority of Congress and the 
Executive Branch unless it finds it imperative to do so.'' Id. at 161. 
Garfinkel is therefore not sound authority for the separation-of-powers 
question posed by the instant disclosure provision. We have elsewhere 
analyzed and criticized its reasoning. See Peter Raven-Hansen and 
William C. Banks, Pulling the Purse Strings of the Commander in Chief, 
80 Va. L. Rev. 933, 923-42 (1994) (enclosed).
---------------------------------------------------------------------------
I. There are two analytic approaches to the resolution of separation-
        of-powers disputes
    Over the last decade, Supreme Court decisions and separate opinions 
of some of the Justices, along with the analyses of many scholars, have 
clarified the constitutional law of separation of powers. In one line 
of Supreme Court separation-of-powers decisions the Court has 
determined that ``the Constitution by explicit text commits the power 
at issue to the exclusive control of [another branch].'' \2\ In such 
cases, explains Justice Anthony Kennedy, courts do not balance the 
interests of the branches: ``[w]here a power has been committed to a 
particular Branch of Government in the text of the Constitution, the 
balance already has been struck by the Constitution itself.'' \3\
---------------------------------------------------------------------------
    \2\ Public Citizen v. Department of Justice, 491 U.S. 440, 485 
(1989) (Kennedy, J., concurring).
    \3\ Id. at 486.
---------------------------------------------------------------------------
    United States v. Lovett \4\ was such a case. There, after secret 
hearings, the House Committee on Un-American Activities had found three 
federal employees guilty of ``subversive activity.'' As a result, the 
House voted a rider to a wartime appropriation forbidding the executive 
branch from disbursing salaries to the employees unless they were 
reappointed with the advice and consent of the Senate. Because the 
House would not approve any appropriation without the rider, the Senate 
agreed to it and the President reluctantly signed it into law. The 
Supreme Court held that the rider was an unconstitutional bill of 
attainder. Once the Court characterized the rider as a bill of 
attainder, the constitutional text supplied a clear and unequivocal 
standard against which to measure the rider. By retroactively punishing 
specific federal employees without benefit of judicial trial, Congress 
attempted to excerise a ``power which the Constitution unequivocally 
declares Congress can never exercise.'' \5\ Congress had violated an 
express textual command of the Constitution, as well as the textual 
assignment of ``[t]he judicial power of the United States'' to the 
judicial branch; no further balancing of Congress's interests in the 
legislation was needed or appropriate.
---------------------------------------------------------------------------
    \4\ 328 U.S. 303 (1946).
    \5\ 328 U.S. at 307.
---------------------------------------------------------------------------
    When the explicit constitutional text does not strike its own 
balance by assigning the power solely to one branch or denying a power 
to it, however, the Court has employed a different analysis. It has 
then taken ``a balancing approach,'' as Justice Kennedy explains it, 
``asking whether the statute at issue prevents the President `from 
accomplishing [his] constitutionally assigned functions,' '' and 
``whether the extent of the intrusion on the President's powers `is 
justified by an overriding need to promote objectives within the 
constitutional authority of Congress.' '' \6\ This balancing approach 
is appropriate for deciding separation-of-powers disputes involving 
shared constitutional powers. The Court has also suggested that in the 
balancing, undifferentiated claims by one branch must yield to the 
specific needs of another.\7\
---------------------------------------------------------------------------
    \6\ Public Citizen, 491 U.S. at 485 (quoting Morrison v. Olson, 487 
U.S. 654, 695 (1988)) (in turn, quoting Nixon v. Administrator of 
General Service, 433 U.S. 425, 443 (1977)).
    \7\ United States v. Nixon, 418 U.S. 683, 705-06 (1974).
---------------------------------------------------------------------------
    For example, in Morrison v. Olson, the Court determined that the 
President's power to remove Executive officers, a necessary but 
implicit component of the ``executive Power'' in Article II, section 1, 
could be subordinated in a balancing analysis to the overriding need of 
Congress, expressed in the Ethics in Government Act, to provide an 
Independent Counsel mechanism free from the taint of political 
influences. Similarly, in Nixon v. Administrator of General 
Services,\8\ the Executive Branch's power to dispose of presidential 
materials, implicitly integral to the President's ability to performed 
his assigned functions, was balanced against the Congress's need to 
promote objectives within its constitutional powers.
---------------------------------------------------------------------------
    \8\ 433 U.S. 427 (1977).
---------------------------------------------------------------------------
    For present purposes, the important point is that, before the 
constitutional separation of powers analysis is performed, the dispute 
between the branches must be carefully characterized according to the 
precise constitutional powers at issue.
II. The executive and legislative branches share constitutional 
        authority, and the President does not have exclusive, 
        ``ultimate or unimpeded'' authority, over the regulation of 
        classified information
    The OLC memo asserts that the Constitution vests the President with 
``ultimate and unimpeded authority over the collection retention and 
dissemination of intelligence and other national security 
information,'' and that any statutory intrusion on this authority must 
therefore be unconstitutional.\9\ It thus assumes that ``the 
Constitutional by explicit text commits the powers at issue to the 
exclusive control'' of the President,\10\ and that there is no 
constitutional room for weighing the congressional interest.
---------------------------------------------------------------------------
    \9\ OLC memo at 4 (quoting Brief for Appellees at 42, American 
Foreign Serv. Ass'n v. Garfinkel, 490 U.S. 153 (1989) (No. 87-2127)).
    \10\ Public Citizen, 491, U.S. at 485 (Kennedy, J., concurring).
---------------------------------------------------------------------------
    This assumption is both textually and historically wrong.
    On the first place, there is no explicit constitutional text 
regarding the collection, retention, and dissemination of intelligence 
and national security information. The President's authority on this 
subject is the paradigm of implied authority, in this case flowing from 
his constitutional designation as Commander in Chief and his sparse, 
but explicit foreign affairs authority to appoint and receive 
ambassadors and to make treaties. But the latter grants of authority 
are explicitly shared with the Senate. And if regulation of national 
security information is implicit in the broad array of national 
security and foreign affairs authorities explicitly vested in Congress, 
including the authority to provide for the Common Defense; \11\ to 
regulate foreign commerce; \12\ to define and punish offences against 
the law of nations; \13\ to declare war and grant letters of marque and 
reprisal; \14\ to raise and support armies; \15\ to provide and 
maintain a navy; \16\ to make rules for the government and regulation 
of the land and naval forces; \17\ to provide for calling forth the 
militia to executive the laws of the union, suppress insurrections, and 
repel invasions; \18\ to provide for organizing, arming, and 
disciplining the militia; \19\ and to make all laws which shall be 
necessary and proper for carrying into execution not just this broad 
collection of national security authorities, but also all the national 
security authority vested in the President and the executive 
branch.\20\
---------------------------------------------------------------------------
    \11\ U.S. Const. art. I, Sec. 8, cl. 1.
    \12\ Id. cl. 3.
    \13\ Id. cl. 10.
    \14\ Id. cl. 11.
    \15\ Id. cl. 12.
    \16\ Id. cl. 13.
    \17\ Id. cl. 14.
    \18\ Id. cl. 15.
    \19\ Id. cl. 16.
    \20\ Id. cl. 18.
---------------------------------------------------------------------------
    In fact, the only explicit constitutional provision for keeping 
governmental information secret authorizes Congress, not the President. 
Article I, section 5, clause 3, vests each house with the authority to 
except from publication ``such Parts [of its journal] as may in their 
Judgment require Secrecy.'' \21\
---------------------------------------------------------------------------
    \21\ Id. Sec. 4, cl. 3.
---------------------------------------------------------------------------
    Unable to identify explicit constitutional text for the presumed 
assignment of exclusive control over national security information to 
the President, the OLC memo instead predictably cites United States v. 
Curtiss-Wright Export Corp.\22\ In Curtiss-Wright, Justice Sutherland 
alluded in dicta to ``the very delicate, plenary and exclusive power of 
the President as the sole organ in the field of international 
relations.'' \23\ But as we have explained elsewhere,\24\ Sutherland's 
``sole organ'' reference (which OLC quotes in its analysis \25\ ) was 
wrested from the context in which then-Representative (and later Chief 
Justice) John Marshall spoke: a House debate on President John Adams' 
extradition of a British subject to England pursuant to the Jay Treaty 
of 1795. Defending Adams, Marshall noted the following:
---------------------------------------------------------------------------
    \22\ 299 U.S. 304 (1936).
    \23\ Id. at 320.
    \24\ 80 Va. L. Rev. at 900-901 (quoting from 6 Annals of Cong. 613-
14 (1800) (statement of Rep. Marshall) (emphasis added)).
    \25\ OLC memo at 4.
---------------------------------------------------------------------------
    ``The treaty, which is law, enjoins the performance of a particular 
object. . . . Congress, unquestionably, may prescribe the mode, and 
Congress may devolve on others the whole execution of the contract; 
but, till this be done, it seems the duty of the executive department 
to execute the contract by any means it possesses.''
    President Adams was executing not his own foreign policy, but a 
treaty of the United States made with the consent of the Senate. Had 
Congress prescribed the mode of execution, the President would have 
been obliged to follow it. The President, Marshall was saying, is not 
the sole organ for making foreign policy, but rather the sole organ for 
communicating it.
    Curtiss-Wright, properly understood, does not stand for the 
proposition that the President is the ``sole'' regulator of national 
security information. Furthermore, Justice Jackson subsequently 
reminded us that Curtiss-Wright ``intimated that the President might 
act in external affairs without congressional authority, but not that 
he might act contrary to an Act of Congress . . .'' \26\
---------------------------------------------------------------------------
    \26\ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 n. 2 
(1952).
---------------------------------------------------------------------------
    Nor is Department of Navy v. Egan \27\ to the contrary. There the 
Court observed that the President's authority to classify and control 
access to information bearing on national security ``flows primarily 
from [the Commander-in-Chief clause] . . . and exists quite apart from 
any explicit congressional grant.'' \28\ But this observation confirms 
only that the President has such constitutional authority, not that it 
is exclusive. Indeed, the Court's ultimate holding in Egan--that an 
executive decision to deny a security clearance to an executive branch 
employee was not reviewable by the Merit Systems Protection Board--
expressly depended on the fact that Congress had not ``specifically . . 
. provided otherwise.'' \29\ Egan is therefore perfectly consistent 
with the conclusion that the President and Congress share authority in 
the regulation of national security information.
---------------------------------------------------------------------------
    \27\ 484 U.S. 518 (1988).
    \28\ Id. at 527
    \29\ Id. at 530.
---------------------------------------------------------------------------
    Historical practice confirms this conclusion. Senator Daniel 
Patrick Moynihan, writing as Chairman of the Commission on Protecting 
and Reducing Government Secrecy, has traced the origins of our system 
for protecting national security information to a statute: the 
Espionage Act of 1917,\30\ which criminalized certain uses of national 
security information to harm the United States. We have sketched the 
later history elsewhere.\31\
---------------------------------------------------------------------------
    \30\ Report of the Commission on Protecting and Reducing Government 
Secrecy A-7 (1997) (citing 40 Stat. 451 (1917)) (``Secrecy Commission 
Report'').
    \31\ 80 Va. L. Rev. at 931-33 (selected footnotes retained, but 
renumbered).
---------------------------------------------------------------------------
    Until 1940, information classification ``existed as a military 
hobby in a legal limbo.'' \32\ In that year, President Roosevelt for 
the first time issued an executive order adopting the military 
classification system.\33\ But he did not advance inherent 
constitutional authority for his order. Instead, he cited an act \34\ 
that empowered him to ``define[] certain vital military and naval 
installations or equipment as requiring protection.'' \35\. . . 
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    \32\ Arthur M. Schlesinger, Jr., The Imperial Presidency 338 
(1973).
    \33\ Exec. Order No. 8381, 3 C.F.R. 634 (1938-1943).
    \34\ Act of Jan. 12, 1938, ch. 2 Sec. 1, 52 Stat. 3 (codified as 
amended at 18 U.S.C. Sec. 795(a) (1994)).
    \35\ Id.
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    World War II and its immediate aftermath saw a slew of additional 
statutes giving momentum to the classification of national security 
information.\36\ One of the first statutes actually to acknowledge 
``classified information'' was enacted in 1951,\37\ but it also 
provided that nothing therein ``shall prohibit the furnishing, upon 
lawful demand, of information'' to congressional committees.\38\
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    \36\ E.g., Atomic Energy Act of 1954, ch. 1073, sec. 1, Sec. 142, 
68 Stat. 919, 941 (codified as amended at 42 U.S.C. Sec. 2162 (1994)); 
National Security Act of 1947, ch. 343, Sec. 102(d)(3), 61 Stat. 495, 
498 (codified as amended at 50 U.S.C. Sec. 403(d)(3) (1994)) 
(authorizing the Central Intelligence Agency to protect ``intelligence 
sources and methods from unauthorized disclosure''); Internal Security 
Act of 1950, ch. 1024 Sec. 4(b), 64 Stat. 987, 991 (codified as amended 
at 50 U.S.C. Sec. 783(b) (1994)). See generally Foreign Affairs Div., 
Congressional Research Serv., for Senate Comm. on Foreign Relations, 
92d Cong., 1st Sess., Security Classification as a Problem in the 
Congressional Role in Foreign Policy 9-12 (Comm. Print 1971) 
(``Security Classification Report'') (discussing the impact of the 
National Security, the Internal Security, and the Atomic Energy Acts in 
the context of classified information).
    \37\ Act of Oct. 31, 1951, ch. 655, sec. 24(a), Sec. 798, 65 Stat. 
710, 719-20 (codified as amended at 18 U.S.C. Sec. 798(c) (1994)).
    \38\ Id. sec. 24(a), Sec. 798(c), 65 Stat. at 720.
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    Executive orders in 1951 and 1953 laid the foundation for the 
present system of classification.\39\ These cited no specific statutory 
authority, but a 1957 Report of the Commission on Government Security 
defended the legality of the latest by asserting that ``in the absence 
of any law to the contrary, there is an adequate constitutional and 
statutory basis upon which to predicate the Presidential authority to 
issue Executive Order 10501.'' \40\ The same report emphasized that 
``various statutes do afford a basis upon which to justify the issuance 
of the order.'' \41\
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    \39\ Exec. Order No. 10,290, 3 C.F.R. 789 (1949-1953); Exec. Order 
No. 10,501, 3 C.F.R. 979 (1949-1953).
    \40\ Commission on Gov't Sec. Report 160 (1957) (emphasis added). 
Pressed for the legal authority for Executive Order 10,501 in 1970 by 
the Senate Foreign Relations Committee, the Legal Advisor to the State 
Department cited this report. Security Classification Report, supra 
note 36, at 5.
    \41\ Commission on Gov't Sec. Report, supra note 40, at 158.
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    Subsequently, Congress continued to pass legislation acknowledging 
authority in the executive to classify national security information, 
including the Freedom of Information Act,\42\ the Hughes-Ryan Amendment 
to the Foreign Assistance Act of 1961,\43\ the Civil Service Reform Act 
of 1978,\44\ the Intelligence Indentities Protection Act of 1982,\45\ 
and the Intelligence Authorization Act, Fiscal Year 1991.\46\ But 
Congress was also careful to reserve its own right to classified 
information by consistently providing that nothing in such legislation 
should be construed as authority to withhold information from it.\47\ . 
. .
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    \42\ Act of June 5, 1967, Pub. L. No. 90-23, sec., 1, 
Sec. 552(b)(1), 81 Stat. 54, 55 (codified as amended at 5 U.S.C. 
Sec. 552(b)(1) (1994)).
    \43\ Foreign Assistance Act of 1974, Pub. L. No. 93-559, sec. 32, 
Sec. 662(a), 88 Stat. 1795, 1804, repealed by Intelligence 
Authorization Act, Fiscal Year 1991, Pub. L. No. 102-88, Sec. 601, 105 
Stat. 429, 441.
    \44\ Civil Service Reform Act of 1974, Pub. L. No. 95-454, 
Sec. 101(a), 92 Stat. 1111, 1116 (codified as amended at 5 U.S.C. 
Sec. 2302(b)(8)(A) (1994)).
    \45\ Intelligence Identifies Protection Act of 1982, Pub. L. No. 
97-200, sec. 2(a), Sec. 606(1), 96 Stat. 122, 123-24 (codified as 
amended at 50 U.S.C. Sec. 426(1) (1994)).
    \46\ Intelligence Authorization Act, Fiscal Year 1991, Pub. L. No. 
102-88, sec. 602, Sec. 502(c)(2), 105 Stat. 429, 443 (codified as 
amended at 50 U.S.C. Sec. 413b(c)(2) (1994)).
    \47\ E.g., 5 U.S.C. Sec. Sec. 552(b)(1), 2302(b) (1994); 50 U.S.C. 
Sec. Sec. 413(e), 425 (1994).
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    [This] history of national security information control is 
consistent with implied constitutional authority of the President to 
protect security information. Yet the practice of formal security 
classification by executive order is of relatively recent vintage and 
hardly calculated to give notice of any claim of plenary or exclusive 
presidential power to oversee national security information. In fact, 
Congress has expressly and consistently declined to recognize or yield 
plenary authority to the President. every important statute by which 
Congress can be said to have acquiesced in executive authority to 
protect classified information has also expressly preserved Congress' 
own rights to such information (at least through designated secure 
channels of disclosure). Moreover, Congress has legislated so 
comprehensively that ``[t]he classification system is impotent without 
that network of legislation, for Congressional statutes--not an 
administrative system--establish the criminal offenses for security 
violations, their conduct and intent standards, the judicial 
procedures, the weight to be given to the fact of classification, and 
the punishment for such offenses.'' \48\
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    \48\ Memorandum of the Speaker and Leadership Group in Opposition 
to Defendants' Motion to Dismiss at 35-36, American Foreign Serv. Ass'n 
v. Garfinkel, 732 F. Supp. 13 (D.D.C. 1990) (No. 88-0400-OG) (footnotes 
omitted).
---------------------------------------------------------------------------
    That the President and Congress share constitutional authority in 
the regulation of national security information has been demonstrated 
anew even more recently. In 1994, for example, Congress by statute 
required the President to promulgate procedures ``to govern access to 
classified information'' in the executive branch, including, ``at a 
minimum,'' several specific procedures or standards set out in the 
statute.\49\ In response, President Clinton promulgated Executive Order 
No. 12,968,\50\ the most far-reaching overhaul of the clearance system 
since it was first established. We are unaware of any constitutional 
protest made by him or on his behalf to this assertion of shared 
congressional authority over access to national security information.
---------------------------------------------------------------------------
    \49\ 50 U.S.C. Sec. 435 (1994).
    \50\ 60 Fed. Reg. 40,245 (1995).
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    In 1994 also, Congress for the first time criminalized the 
unauthorized removal of classified materials without requiring proof of 
any intent to harm the United States.\51\ This statute plugged a 
statutory gap in the protection of classified information, effectively 
criminalizing leaks by executive officials. It is today arguably the 
lynchpin, with the espionage laws, of the executive branch's control 
over classified information. Yet this very statute, again, expressly 
exempt disclosures to Congress from that control by providing that 
``the provision of documents and materials to Congress shall not 
constitute an offense'' under the statute.\52\
---------------------------------------------------------------------------
    \51\ 18 U.S.C. Sec. 1924 (1994).
    \52\ 18 U.S.C. Sec. 1924(b) (1994).
---------------------------------------------------------------------------
    In short, it is far too late in the day for anyone credibly to 
assert that the President's constitutional authority to regulate 
national security information is plenary and exclusive. Instead, the 
constitutional text and pertinent history establishes that the 
President and Congress share authority in this area. Exercising its 
authority, Congress has understandably vested enormous discretion in 
him to regulate such information, but it has also consistently,and 
usually with his acquiescence, taken pains to preserve its own 
unhampered access to such information. The instant disclosure provision 
falls squarely within this historical tradition.
III. Any intrusion on the president's constitutionally assigned 
        national security functions resulting from the disclosure 
        provision is justified by an overriding need to promote 
        constitutional objectives of congress
    Because the constitutional text and historical practice establish 
beyond peradventure that the President and Congress share 
constitutional authority to regulate national security information, the 
proper analytic approach to determining the constitutionality of the 
disclosure provision is ``a balancing approach, asking whether the 
statute at issue prevents the President `from accomplishing [his] 
constitutionally assigned functions,' '' and whether the extent of the 
intrusion on the President's powers `is justified by an overriding need 
to promote objectives within the constitutional authority of Congress.' 
'' \53\
---------------------------------------------------------------------------
    \53\ Public Citizen, 491 U.S. at 485 (Kennedy, J., concurring).
---------------------------------------------------------------------------
            a. The disclosure provision's intrusion on the President's 
                    national security functions
    As Commander in Chief and head of the executive branch, the 
President unquestionably enjoys implied constitutional authority to 
regulate national security information. Indeed, the assignment of such 
authority to him reflects his functional advantages in collecting, 
protecting, and disseminating such information:
    ``[H]e, not Congress, has the better opportunity of knowing the 
conditions which prevail in foreign countries, and especially is this 
true in time of war. He has his confidential sources of information. He 
has his agents in the form of diplomatic, consular and other officials. 
Secrecy in respect of information gathering by them may be highly 
necessary, and the premature disclosure of it productive of harmful 
results.'' \54\
---------------------------------------------------------------------------
    \54\ Curtiss-Wright, 299 U.S. at 320.
---------------------------------------------------------------------------
    Thus, it is ultimately the constitutionally assigned (albeit 
implied) function of collecting, protecting, and disseminating 
classified national security information which is impacted by the 
disclosure provision; an executive branch employee's unilateral 
disclosure of classified information to Congress may be ``premature'' 
and therefore cause ``harmful results.'' More specifically, the OLC 
memo suggests that such a disclosure would ``circumvent[]'' the orderly 
executive branch procedure for disclosure of classified information, 
which involves access determinations by executive delegates of the 
President, and the corresponding chain of command. Such a disclosure 
may therefore deny the President and his delegates the opportunity to 
invoke constitutionally-based claims of executive privilege \55\ and 
claims of state secrets, \56\ as well as to take steps to protect their 
``sources and methods.'' \57\
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    \55\ See, e.g., United States v. Nixon, 418 U.S. 683, 705-06 
(1974); In re Sealed Case, 116 F.3d 550 (D.C. Cir. 1997).
    \56\ United States v. Reynolds, 345 U.S. 1, 10(1953); Nixon, 418 
U.S. at 706.
    \57\ See 50 U.S.C. Sec. 403-3(c)(6) (1994).
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    This assessment of the disclosure provision's intrusion on the 
President's functions, however, is substantially exaggerated for 
several reasons.
    First, the disclosure provision encourages disclosure of only a 
small subset of classified information: that which provides ``direct 
and specific evidence'' of violations of law, rule, or regulation; a 
false statement to Congress on an issue of material fact; or gross 
mismanagement, a gross waste of funds, an abuse of authority, or a 
substantial and specific danger to public health or safety. Under the 
President's own executive order, ``[i]n no case shall information be 
classified in order to . . .  conceal violations of law, inefficiency, 
or administrative error [or to] prevent embarrassment to a person, 
organization, or agency.'' \58\ False statements to Congress are 
themselves violations of law.\59\ Unless, therefore, gross 
mismanagement, a gross waste of funds, an abuse of authority, or a 
substantial and specific danger to public health or safety is not 
either ``inefficiency'' or administrative error,'' none of the 
information targeted by the disclosure provision is properly classified 
according to the President's own standards. The employee who reasonably 
and correctly determines that the putatively ``classified'' information 
provides direct and specific evidence of the listed actions cannot 
compromise the information by disclosing it to congress for the simple 
reason that it is not lawfully classified.
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    \58\ Exec. Order No. 12,958 Sec. 1.8(a), 60 Fed. Reg. 19,825 
(1995).
    \59\ Although the Supreme Court has recently suggested that the 
false statements criminal statute, 18 U.S.C. Sec. 1001 (1994), does not 
apply to statements made to Congress, Hubbard v. United States, 514 
U.S. 695 (1995), such statements may still constitute obstruction of 
justice, 18 U.S.C. Sec. 1505 (1994), or perjury. 18 U.S.C. Sec. 1621 
(1994).
---------------------------------------------------------------------------
    Second, the disclosure provision is aimed at encouraging--and 
ultimately protecting--only the employee who ``reasonably'' believes 
that the classified information falls into this subset. The employee 
who discloses information he knows falls outside this subset, or which 
he unreasonably believes falls within it, is not covered by the act. As 
a result, deliberate or reckless disclosure of classified information 
which falls outside the disclosure provision is not encourages or 
protected by it.
    Third, the disclosure which the disclosure provision encourages is 
only to members of congressional committees with oversight over the 
governmental unit to which the information relates, and not to the 
world or even to the Congress at large. Because section 306(c) targets 
only ``employees'' of agencies within the national intelligence 
community, most of the classified information they are encouraged to 
disclose would relate to that community, and the contemplated 
disclosures would be made chiefly to the intelligence committees.\60\ 
These committees operate under specially-enacted rules ``to protect 
from unauthorized disclosure all classified information, and all 
information relating to intelligence sources and methods, that is 
furnished to the[m]. . . .'' \61\
---------------------------------------------------------------------------
    \60\ As we discuss below, the constitutionality of the disclosure 
provision would be strengthened by narrowing the ``covered 
individuals'' to members and staff of the intelligence committees 
subject to rules of protecting classified information. See, e.g., 50 
U.S.C. Sec. 413(D) (1994).
    \61\ Id.
---------------------------------------------------------------------------
    In light of these limitations in the disclosure provision, we can 
now describe more precisely the provision's intrusion on the 
President's constitutionally assigned functions. The intrusion that the 
provision risks is that (1) executive branch employees with access to 
classified information will reasonably, but erroneously, conclude that 
such information provides direct and specific evidence of the actions 
listed in the disclosure provision, and (2) disclose it to a member of 
staff member of a congressional committee that either is not subject to 
the protective rules governing the intelligence committees, or who is, 
but disregards them, with the result that (3) lawfully classified 
information--including information that may be subject to executive or 
state secrets privileges--is compromised, harming the national 
security.
            b. The Congressional interests
    Assuming this intrusion by the disclosure provision on executive 
functions, it remains to consider whether the extent of the intrusion 
is justified by an overriding need to promote objectives within the 
constitutional authority of Congress.
    The chief legislative interest advanced by the disclosure provision 
is the oversight of the national security and intelligence 
communities.\62\ As we have explained elsewhere: \63\
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    \62\ Congress also has an interest in protecting the First 
Amendment rights of executive employees. Indeed, members of Congress 
are not only constitutionally authorized, but ``bound by Oath or 
Affirmation, to support [the] Constitution.'' U.S. Const. art. VI. In 
exercise of this authority and furtherance of this duty, Congress as 
early as 1912 enacted the Lloyd-LaFollete Act, providing that ``[t]he 
right of [employees], individually or collectively, to petition 
Congress or any Member thereof, or to furnish information to [Congress] 
. . .  shall not be denied or interfered with.'' Act of Aug. 24, ch. 
389, Sec. 6, 37 Stat. 539, 555 (codified as amended at 5 U.S.C. 
Sec. 7211 (1994)). This Act was intended to nullify a gag order by 
President Taft forbidding a federal employee from requesting Congress 
to act on any matter without prior authorization from the head of her 
department. Congress has since enacted similar legislation protecting 
the right of military personnel to communicate with Congress, 10 U.S.C. 
Sec. 1034 (1994), and of executive employees in agencies and 
departments concerned with foreign relations to speak, on request, to 
committees of appropriate oversight jurisdiction. Foreign Relations 
Authorization Act of 1972, Pub. L. No. 92-352 Sec. 502, 86 Stat. 489, 
496 (codified as amended at 2 U.S.C. Sec. 194a (1994)).
    We do not stress Congress's undoubted constitutional authority to 
protect the constitutional rights of federal employees because, as far 
as we know, the sponsors of the disclosure provision have not.
    \63\ Raven-Hansen & Banks, 80 Va. L. Rev. at 938-39 (selected 
footnotes omitted or modified).
---------------------------------------------------------------------------
    ``[T]he national security and foreign affairs authority assigned to 
Congress by the Constitution logically carries with it attendant rights 
of oversight and information access. As early as 1927, the Supreme 
Court acknowledged the constitutionality of the general investigative 
function of Congress and the need for information access in 
lawmaking.\64\ Indeed, more recently it has said that Congress' 
investigatory powers are as ``penetrating and far-reaching as the 
potential power to enact and appropriate under the Constitution.'' \65\ 
. . . The post-World War II growth of the defense and intelligence 
community has only increased Congress' need for classified information 
to aid oversight in peacetime.''
---------------------------------------------------------------------------
    \64\ McGrain v. Daugherty, 273 U.S. 135, 175 (1927).
    \65\ Barenblatt v. United States, 360 U.S. 109, 111 (1959). In 
Barenblatt, the Court added that Congress ``cannot inquire into matters 
which are within the exclusive province of one of the other branches of 
the Government.'' Id. at 111-12. As we have shown in Part II supra, 
however, the constitutional text and historical practice refute any 
claim that national security or foreign affairs are within the 
``exclusive'' province of the executive.
---------------------------------------------------------------------------
    The Court has also acknowledged a related congressional interest in 
regulating information in the executive branch. In rejecting a 
constitutional challenge to one regulatory statute, the Supreme Court 
in Nixon v. Administrator of General Services \66\ took notice of 
``abundant statutory precedent for the regulation and mandatory 
disclosure of documents in the possession of the Executive Branch'' and 
stated flatly that ``[s]uch regulation of material generated in the 
Executive Branch has never been considered invalid as an invasion of 
its [executive] autonomy.'' \67\
---------------------------------------------------------------------------
    \66\ 433 U.S. 425 (1977)
    \67\ Id. at 445.
---------------------------------------------------------------------------
    The executive branch has acknowledged the congressional fact-
gathering and investigatory authority, as it must, but has tried to 
minimize it by arguing that it ``is nowhere expressed in the 
Constitution [and just] implied from Congress's power to make laws,'' 
in alleged contrast to the President's ``plenary control over the 
disclosure of national security information'' which is ``integral'' to 
his roles as Commander in Chief and sole organ for foreign affairs.\68\ 
But, as we have shown in Part I, the President's power is also nowhere 
expressed in the Constitution and only implied in his roles. In any 
event, the Supreme Court answered this argument when, in upholding a 
congressional inquiry, it observed that at the time the Constitution 
was framed legislative fact-gathering ``was regarded and employed as a 
necessary and appropriate attribute of the power to legislate--indeed, 
was treated as inhering in it.'' \69\ In short, access to national 
security information is an inherent power, integral to both the 
President's and Congress's constitutionally assigned functions in the 
area of national security.
---------------------------------------------------------------------------
    \68\ Brief of Appellees supra note 9, at 49 n. 42.
    \69\ McGrain, 273 U.S. at 175 (emphasis added).
---------------------------------------------------------------------------
    Whether the congressional need for information is ``overriding,'' 
however, turns in part on how specific it is. Generalized congressional 
interests do not weigh as heavily in the balancing as more specifically 
defined interests, and do not override specific executive interests. 
For example, in Senate Select Committee on Presidential Campaign 
Activities v. Nixon,\70\ the Court of Appeals held that the generalized 
investigatory need cited by a Senate Committee for electronic tapes of 
presidential communications was ``too attenuated and too tangential to 
its functions'' to overcome the President's interests in the 
confidentiality of those communications in light of the more specific 
impeachment inquiry then underway in the House Judiciary Committee.
---------------------------------------------------------------------------
    \70\ 498 F. 2d 725 (D.C. Cir. 1974).
---------------------------------------------------------------------------
    The disclosure provision, however, does narrow Congress's 
generalized interest in national security information to three specific 
categories. We believe that the specific congressional interest in 
direct and specific evidence of ``a false statement to Congress on an 
issue of material fact'' is among the weightiest interests Congress can 
assert, because it protects the integrity of Congress's fact-finding 
process. As one federal court has emphasized, in rejecting the claim 
that the executive may lie to Congress to protect national security, 
``[i]t is essential that Congress legislate based on fact, not 
falsifications, in the realm of foreign affairs as well as in domestic 
legislation.'' \71\ Indeed, access to such information is necessary to 
make the formal provision of authorized national security information 
from the executive branch to Congress work. Without such access, 
Congress is wholly dependent on the executive branch to police the 
accuracy of its own submissions.
---------------------------------------------------------------------------
    \71\ United States v. North, 708 F. Supp. 380, 383 (D.D.C. 1988).
---------------------------------------------------------------------------
    It is no rebuttal to assert that national security sometimes 
requires the executive to lie to Congress. There is no executive or 
state secret privilege to lie.
    ``The thought that any one of the hundreds or thousands of persons 
working for the President can affirmatively and intentionally mislead 
Congress when it seeks information to perform one of its assigned 
functions for any reason--including self-interest or the belief that 
the President would approve--is unacceptable on its face. Such a 
disdainful view of our democratic form of government has no 
constitutional substance. Where, as here, power is shared among the 
branches, willful and deliberate deceit . . . cannot be excused on 
constitutional grounds.'' \72\
---------------------------------------------------------------------------
    \72\ Id.
---------------------------------------------------------------------------
    Nor, it follows, can a denial of access by Congress to direct and 
specific evidence of such deceit be excused on constitutional grounds. 
We believe that there is no question that Congress's overriding need 
for such information justifies any intrusion on the President's 
authority resulting from the ``false statement'' subprovision of the 
disclosure provision. 
    The disclosure provision also seeks to insure that Congress obtains 
evidence of ``a violation of any law, rule, or regulation.'' This, too, 
is concrete and specific need that we believe is ``overriding'' in this 
setting, although we add one caveat to this conclusion. In addition to 
the obvious utility of such information for carrying out of the 
congressional oversight function, as well as for revising existing law 
and enacting new law, the need for this category of information is 
underscored by the fact that this information indicates that executive 
oversight--and, therefore, execution--has, by definition, failed. 
Furthermore, the executive has itself recognized Congress's and the 
public's need for such information by prohibiting classification ``to 
conceal violations of law.''
    Our caveat concerns the phrase ``rule, or regulation.'' Without 
further refinement, rules may be construed by administrative lawyers to 
include internal interpretive or housekeeping rules that usually lack 
the force and effect of law and are therefore generally understood to 
be unenforceable outside the agency that makes them.\73\ The 
congressional need for this subprovision is strongest if the ``rule, or 
regulation'' subprovision is understood, or ideally, redrafted, to mean 
only those legislative or substantive rules or regulations having the 
force and effect of law.
---------------------------------------------------------------------------
    \73\ See 5 U.S.C. Sec. 553(b)(A)(1994); see generally Alfred C. 
Aman, Jr., & William T. Mayton, Administrative Law Sec. Sec. 4.2-4.3 
(1993).
---------------------------------------------------------------------------
    Finally, the disclosure provision also encourages disclosure of 
direct and specific evidence of ``gross mismanagement, a gross waste of 
funds, an abuse of authority, or a substantial and specific danger to 
public health or safety.'' Although this subprovision corresponds 
roughly to the executive prohibition on the classification of 
information to conceal ``inefficiency'' or ``administrative error,'' 
and is drawn from the Whistleblower Protection Act,\74\ its terms are 
intrinsically ambiguous, leaving the employee to make a difficult 
judgment with little direct guidance from Congress. This subprovision 
therefore potentially targets the largest category of classified 
information, and, in so doing, poses the greatest risk of error by the 
disclosing employee. Moreover, viewed as a sort of catch-all, the 
congressional interest expressed in this subprovision is hardly more 
specific than a generalized need for oversight information, which may 
not be sufficiently overriding to justify an intrusion on specific 
executive national security functions.
---------------------------------------------------------------------------
    \74\ 5 U.S.C. Sec. 2302(1994).
---------------------------------------------------------------------------
    An important countervailing consideration, however, is that the 
general secrecy and attenuated oversight to which the national 
intelligence community is subject may themselves add to the weight of 
the congressional need for this kind of evidence from executive branch 
employees. Not only does existing national security legislation give 
enormous discretion to national security bureaucrats with few specific 
statutory restraints, but they are largely spared the fiscal 
accountability to which other, more ``transparent'' public 
bureaucracies are routinely subjected.\75\ Their budget lines are kept 
secret not only from the public, but also from most of Congress, and 
they do not publicly account for how they spend their budgets either. 
Secret budgets, secret spending, and classified information conspire to 
limit media oversight of the national intelligence community as well. 
Max Weber's analysis of bureaucracy therefore applies with special 
force to the national security and intelligence community.
---------------------------------------------------------------------------
    \75\ See, e.g., William C. Banks & Peter Raven-Hanse, National 
Security Law and the Power of the Purse 51-53, 100-105 (1994).
---------------------------------------------------------------------------
    ``Every bureaucracy seeks to increase the superiority of the 
professionally informed by keeping their knowledge and intentions 
secret. Bureaucratic administration always tends to be an 
administration of ``secret sessions'' in so far as it can, it hides its 
knowledge and action from criticism. . . . In facing a parliament, the 
bureaucracy, out of a sure power instinct, fights every attempt of the 
parliament to gain knowledge by means of its own experts or from 
interest groups. The so-called right of parliamentary investigations is 
one of the means by which parliament seeks such knowledge. Bureaucracy 
naturally welcomes a poorly informed and hence a powerless parliament--
at least in so far as ignorance somehow agrees with the bureaucracy's 
interest.'' \76\
---------------------------------------------------------------------------
    \76\ Max Weber, Essays in Sociology 233-34 (H.H. Gerth & C. Wright 
Mills ed. 1946), quoted in Secrecy Commission Report supra note 30, at 
A-15 to A-16.
---------------------------------------------------------------------------
    One does not have to share Weber's views about government 
bureaucracies in general, or to suspect the national security and 
intelligence communities of bad faith or worse, to recognize that the 
system under which they currently operate fosters bureaucracy and 
hampers accountability. For this reason, Congress may, after all, have 
a special need for employee disclosures of classified information 
evidencing ``gross mismanagement, a gross waste of funds, an abuse of 
authority, or a substantial and specific danger to public health and 
safety'' by agencies or departments in the national security and 
intelligence communities. Such disclosures can be justified to 
compensate for the severe restraints on other methods of assuring their 
accountability to Congress and the public. We conclude, therefore, that 
this subprovision of the disclosure provision is also constitutional.
IV. The disclosure provision could be revised to enhance its 
        constitutionality
    Although we have concluded that the disclosure provision is 
constitutional, we also believe that the case for its constitutionality 
could be enhanced by several changes.
    First, the ``covered individuals'' defined in section 306(a)(3) 
could be narrowed to members or security-cleared staff of the 
intelligence committees. Because a statute \77\ requires these 
committees to operate under house rules to protect classified 
information from unauthorized disclosure, employee disclosures of 
classified information to them are less likely to compromise such 
information than disclosures to less secure committees, their members, 
or staff. Although we understand that other communities, including 
notably the appropriations committees, may also have a legitimate 
legislative need for such information, each intelligence committee is 
already directed by statute, in accordance with secure procedures, ``to 
promptly call to the attention of its respective House, or to any 
appropriate committee or committees of the respective House, any matter 
relating to intelligence activities requiring the attention of such 
House or such committee or committees.'' \78\ Alternatively, if 
jurisdictional considerations, as a practical matter, prevent the 
suggested limitation of ``covered persons'' to just the members and 
staff of the intelligence committees, the disclosure provision might be 
enhanced by inclusion of a subprovision requiring the application of 
the existing rules and procedures for protecting classified information 
to any committees to whom disclosures may be made under the 
provision.\79\ In any case, specific identification of the covered 
committees by name would reduce the risk that an employee will 
mistakenly disclose to persons who are not covered by the disclosure 
provision; the provision as currently drafted leaves an ambiguity that 
invites such error.
---------------------------------------------------------------------------
    \77\ See e.g., 50 U.S.C. Sec. 413(d) (1994).
    \78\ Id.
    \79\ Such a subprovision would largely track 50 U.S.C. Sec. 413(d) 
(1994).
---------------------------------------------------------------------------
    Second, section 306(a)(2)(A) could be narrowed to cover only 
violations of law or substantive rules or regulations with the force 
and effect of law, thus excluding violations of mere procedural, 
housekeeping, and interpretive rules, as discussed above. This revision 
would again reduce the risk of erroneous disclosure by narrowing the 
range of disclosable classified information.
    Third, section 306(a)(2)(C) could be revised to track more directly 
the President's own classification prohibition in Executive Order No. 
12,958, section 1.8(a)(1).\80\ This revision would not narrow the reach 
of the disclosure provision, but it would make it more difficult for 
the President and his lawyers to argue that this subprovision goes too 
far, for it would target precisely the information that the President 
has admitted should not be classified.
---------------------------------------------------------------------------
    \80\ 60 Fed. Reg. 19,825 (1995).
---------------------------------------------------------------------------
    Finally, the intrusion on presidential functions could be reduced 
if the covered employees was required to exhaust certain administrative 
remedies before disclosing classified information to covered persons. 
For example, an employee might be required first to disclose the 
information to the agency or department Inspector General, if there is 
one, or to the Office of Special Counsel of the Merits Systems 
Protection Act. Such a revision would require amendment of the 
Whistleblower Protection Act,\81\ as well, ideally, as the addition of 
a requirement that such offices adopt special rules for the protection 
against unauthorized disclosures of classified information disclosed to 
them. This revision would also presumably require deadlines for 
responses by these offices, and/or exceptions to the exhaustion 
requirement for time-urgent information. Such a revision would enhance 
the constitutionality of the act by offering executive branch officials 
an opportunity to review the proposed disclosure and to use an orderly 
process for deciding whether the disclosure should be made pre-
emptively, but officially, thus reducing if not in many cases 
eliminating, the intrusion on the executive function.
---------------------------------------------------------------------------
    \81\ 5 U.S.C. Sec. 2302(b)(8)(A) (1994).
---------------------------------------------------------------------------
    In conclusion, we assume that it was in part to give the President 
the opportunity to impose such exhaustion requirements (as well as 
other procedures that could minimize the intrusion on his functions 
without denying Congress the information it needs) that the disclosure 
provision is not framed in terms of employee rights, but instead as a 
request to the President to take appropriate actions to encourage 
employee disclosures. While such voluntary action by him would be in 
keeping with a long and successful history of negotiated solutions to 
inter-branch disputes,\82\ and while we applaud the sponsors' evident 
desire for this outcome, we doubt that this provision will achieve it. 
It is, after all, not merely precatory. Indeed, it ultimately commands 
the President to take the required action within thirty days of 
enactment. Such a command may actually be more offensive to the 
executive than a straightforward declaration of employee (and, 
derivatively, congressional) rights, in that it may precipitate a 
direct conflict sooner than the latter.
---------------------------------------------------------------------------
    \82\ See, e.g., Peter M. Shane, Legal Disagreement and Negotiation 
in a Government of Laws: The Case of executive Privilege Claims Against 
Congress, 71 Minn. L. Rev. 462 (1987).
---------------------------------------------------------------------------
    We hope this analysis will assist you, and we would be happy to 
summarize it in testimony.
            Sincerely yours,
                                   William C. Banks, Professor of Law, 
                                       Syracuse University College of 
                                       Law.
                                   Peter Raven-Hansen, Glen Earl Weston 
                                       Research Professor of Law, 
                                       George Washington University Law 
                                       School.

  STATEMENT OF PETER RAVEN-HANSEN, GLEN EARL WESTON RESEARCH 
 PROFESSOR OF LAW, THE GEORGE WASHINGTON UNIVERSITY SCHOOL OF 
                              LAW

    Mr. Raven-Hansen. Well, let me begin at the same place that 
Dr. Fisher began and I'll cover a little bit of the same 
ground, but I think it's important to note that we have 
independently come at the same conclusion.
    Last year, the Office of Legal Counsel opined that Section 
306 was unconstitutional and presumably would reach the same 
conclusion about similar bills. And it based that conclusion 
principally on this statement from the Supreme Court in 
Department of Navy versus Egan. That the President's authority 
to classify and control access to information bearing on 
national security flows primarily from the Commander-in-Chief 
clause and ``exists quite apart from any explicit Congressional 
grant.''
    And it was that statement that they relied on to conclude 
that the President has ultimate and unimpeded authority over 
classified information. And that therefore, limitations like 
Section 306 are unconstitutional.
    I think the premises of their logic are flawed and their 
conclusion is dead wrong. The President and Congress have both 
historically and as a matter of constitutional text shared 
authority over classified information from the beginning.
    Now, let's start with the text. There is no express text 
regarding the regulation of classified information. The 
President's authority on this subject is entirely implied from 
his command authority asCommander-in-Chief. But if it is 
implicit in the Commander-in-Chief clause, it is equally implicit in 
the nine separate express provisions of the Constitution that confer 
national security and foreign affairs powers on the Congress, ranging 
from the authority to provide for the common defense to the authority 
to make rules for the government and regulation of the armed forces.
    It's also implicit in Congress' residual authority to make 
all laws necessary and proper to carry out not only their own 
vast national security powers, but also the President's. In 
fact, the only express constitutional text that deals with 
governmental information that is secret gives the Congress, and 
not the President, the power to keep it secret. Each House is 
permitted to keep parts of its journal secret when, in its 
judgment, that's necessary.
    Egan, therefore, properly read, stands simply for the 
proposition that the President has inherent authority to 
regulate classified information and doesn't need a statute to 
do so. It does not mean that he could violate a statute if 
Congress passed one regulating such matters.
    And in fact, as Dr. Fisher noted, the Court was careful to 
say in its actual holding in Egan, that it reached its 
statutory decision in the absence of statutes to the contrary, 
leaving open the possibility, and I would say the likelihood, 
that if Congress had legislated on the subject, they would have 
come out differently.
    In short, I would paraphrase Justice Jackson on this as he 
said of Curtiss-Wright, another popular decision cited by the 
Office of Legal Counsel, Egan at most intimates that the 
President can act without Congressional authority. It does not 
say that he can act contrary to an act of Congress, like 
Section 306.
    In addition, the President and Congress have historically 
acted together to regulate classified information for over 80 
years. In my longer statement, Professor Banks and I sampled 
just 12 statutes to illustrate that point, but I could give you 
50 if you wished, and we had all day.
    They range back to the Espionage Act of 1917, which was the 
first act that criminalized the uses of national security 
information to harm the country, and they go up, to most 
recently, the Protection and Reduction of Government Secrecy 
Act of 1994, which established minimum procedures for access to 
classified information on which the President's own Executive 
Order is now based.
    And what these statutes have in common is not just that 
they pervasively regulate classified information, but that they 
also consistently reserve the right of Congress to receive that 
information, either at large or through its Intelligence 
Committees. One example I can give on which I testified two 
years ago before your counterpart in the House is 18 U.S.C. 
1924. This is the statute that for the first time criminalized 
leaks of classified information by Executive branch officials. 
I testified to the House Committee that Congress always 
reserved its own rights when it enacts legislation in this 
matter, and they then added a provision that the production of 
documents to Congress was not an offense under the statute. 
That is a routine reservation of rights by Congress. No one has 
challenged them, to my knowledge, in 80 days.
    So I think it is far too late in the day for the Office of 
Legal Counsel of the Executive branch to assert that the 
President has some sort of plenary and exclusive authority to 
regulate classified information. Instead, the text and the 
history establish beyond question that this is an area of 
shared power.
    The issue then is what do you do when we have a statute 
that would limit the President's power in the area? And on that 
subject, Justice Kennedy has said that when the constitutional 
text does not assign authority exclusively to the President and 
only gives him an implied authority, the constitutionality of 
that statute has to be decided by balancing. What you balance 
is the degree of intrusion on the President's powers against 
the need to achieve objectives that are within Congress's 
constitutional authority.
    I should add that the Court has also said, ``The regulation 
of material generated in the Executive branch has never been 
considered invalid as an invasion of its autonomy.''
    So with that background, let's do the balancing. What is 
the actual intrusion on the Executive branch that Section 306 
threatens? The Office of Legal Counsel asserted last year that 
the act would circumvent the Executive branch's procedure for 
the orderly disclosure of classified information by preventing 
the chain of command for considering whether there were 
constitutionally based privileges to be asserted or from taking 
other action to protect sources and methods. Disclosure would 
be made by lower ranking employees on their own authority.
    I think that is partly correct, but it exaggerates 
substantially the effect of Section 306. In the first place, 
the disclosure that it encourages is not of all classified 
information, but of a small, well defined subset: namely, the 
information that would provide direct and specific evidence of 
violations of law or that false statements have been made to 
Congress or of gross mismanagement, etc.
    The President's own Executive Order on classified 
information that is now in place states, ``in no case shall 
information be classified in order to conceal violations of 
law, inefficiency, or administrative error, or to prevent 
embarrassment.'' False statements to Congress, of course, are 
violations of law. And unless gross mismanagement is neither 
adminstrative error nor inefficiency, I would have to say that 
none of the information targeted by Section 306 is currently 
properly classified under the President's own order.
    Secondly, the disclosure provision is aimed at encouraging 
only employees who reasonably believe that the classified 
information falls into the subset I have just described. So an 
employee who knows that it is outside of that subset or who 
unreasonably believes that the information is in this category, 
isn't covered by the bill. It therefore does not encourage or 
protect deliberate or reckless disclosures.
    And third, it only encourages disclosures to Committees 
that have oversight responsibility for the subject of the 
disclosure. Since the covered employees are usually employees 
of national Intelligence Community agencies, the information 
they are going to disclose would come to this Committee and the 
House Committee in most instances. Of course, both Committees 
operate under elaborate safeguards to protect against 
unauthorized disclosures.
    So I think in the end, the intrusion, the actual scope of 
the intrusion on the Executive is the following: The risk is 
that Executive branch employees with access to classified 
information will reasonably but erroneously conclude that that 
information falls within the statute and disclose it to a 
Member of a Congressional Committee or a staff member that is 
either not subject to the safeguards we've described or who is 
but ignores them as a result of which the information is 
disclosed to the public and compromised, harming the national 
security.
    Now, that's a real concern, but it is not nearly as large 
as the Office of Legal Counsel has described it, and what 
remains is to consider whether the Congressional need is 
overriding. And in that regard, I won't belabor the extensive 
Supreme Court authority concerning Congress's constitutional 
right to information from the Executive branch. The question is 
really whether the informational need of Congress is specific 
enough to overcome the Executive interest that I have just 
described. General interests of Congress in the balancing 
process that Justice Kennedy has described do not overcome 
specific interests of the Executive branch.
    The disclosure section, however, does not state a general 
informational interest of Congress. It narrows Congress's 
interest in three ways.
    The first, I think, asserts the strongest interest I could 
imagine for this Committee and the Congress as a whole. That 
is, to obtain evidence that Congress has been lied to regarding 
matters within the purview of this Committee. I can't think of 
a weightier interest in the oversight of the national 
Intelligence Community or of national security in general. This 
interest protects the integrity of Congress's fact-finding 
process. It, in fact, could be viewed ironically as an interest 
that the Executive branch should share, because it would help 
Congress have faith in official channels if you have an 
independent check on the rare--hopefully rare--false statement 
made through official channels.
    It is no answer to this, incidentally, to say that the 
President has some sort of Executive privilege or state secrets 
privilege to lie. Judge Gesell squarely rejected that in the 
North litigation. He said where power is shared among the 
branches, willful and deliberate deceit cannot be excused on 
constitutional grounds. And of course, he was talking about 
national security information.
    And I think it follows that nor can denial of access by 
Congress to this kind of information be excused on 
constitutional grounds. So I have no hesitation in saying that 
as to this category of information, the bill is clearly 
constitutional and very sound.
    The second category is information about violations of law. 
And I think that is also concrete and specific enough to 
override the Executive interest that I have described. When law 
has been violated, it means not only that Congress has a need 
to know in order to legislate anew, but by definition, the 
President has failed to take care that the law be faithfully 
executed. In those circumstances, it seems to me that Congress 
has a very specific and heightened need for the information.
    Finally, the third provision is the most constitutionally 
problematical. That's the provision that deals with information 
about gross mismanagement, waste of funds, abuse of authority, 
etc. This corresponds roughly to the President's own categories 
of inefficiency or administrative error, which he says cannot 
be properly classified. But I think it is also ambiguous, and 
it leaves the employee with a difficult judgment to make, and 
not too much guidance from Section 306. In other words, this 
section potentially targets the largest category of classified 
information, and therefore poses the greatest risk of an error 
if an employee comes to Congress.
    On the other hand, there is an important countervailing 
consideration here, and that lies in the nature of oversight of 
the national Intelligence Community in general. And with all 
due respect to this Committee, I think one would recognize that 
because of secrecy, because of the secret budgeting process, 
that community is not as accountable, to the public at least, 
and to the Congress at large, as other more transparent 
agencies. It operates under a system that fosters bureaucracy 
and hampers accountability. And I say that without impugning in 
any way the people who work in that community. It is just a 
nature of the workplace when you operate secretly and without 
full fiscal accountability and outside the glare of media 
scrutiny.
    As a result, Congress may have a special need for 
disclosures in this third category, to compensate for the very 
limited accountability that the national security community 
otherwise has to the Congress and to the public at large.
    Let me conclude by saying I think there are some things 
that you could do to enhance the constitutional argument for 
this section 306. I have listed them in my more comprehensive 
statement, but let me just focus on two.
    The bill currently encourages employees to bring 
information to any Committee with jurisdiction over the 
subject. But other Committees do not operate under the same 
safeguards for protecting against unauthorized disclosures that 
you operate under. And I think it would be desirable to limit 
disclosures to the Intelligence Committees because of those 
safeguards. That would not only reduce the risk of unauthorized 
disclosure and therefore reduce the intrusion on the Executive 
branch, but it also brings the information where the oversight 
is. I mean, to the extent that this is basically classified 
information from the Intelligence Communities that you oversee, 
it seems appropriate that it would come to these Committees and 
not to Committees that don't operate under the same safeguards.
    Finally, I would add one other point that is not in my 
statement but is a concern I have had. Dr. Fisher referred to 
the Lloyd-LaFollette Act. This, since 1912, has given 
government employees the right to furnish information to 
Congress. That is what it says. It is unconditional. I would be 
disturbed if Section 306 or a bill like it was construed to 
narrow the Lloyd-LaFollette Act unless that was what the 
Committee intended. And so I would urge you to consider 
language in a bill like this that says ``nothing in the bill is 
intended to limit any existing right under law or the 
Constitution of employees to communicate to Congress.''
    Thank you.
    Chairman Shelby. In the statement of Administration policy 
drafted in response to Section 306, the Administration states 
thatsection 306, ``vests lower ranking personnel in the 
Executive branch with a right to furnish national security or other 
privileged information to a Member of Congress without receiving 
official authorization to do so.''
    It is not the intent of the Committee to create any rights 
for individual Intelligence Community employees. Rather, our 
intent is to inform employees within the Intelligence 
Community, that disclosing evidence of misconduct, fraud, and 
mismanagement to this Committee is not an unauthorized 
disclosure.
    Assuming our proposed language become law, would individual 
Intelligence Community employees obtain enforceable rights 
under its provision? And if so, how would they be enforced?
    Dr. Fisher, do you have any comment?
    Dr. Fisher. I think that Peter is going to be better on 
this than me. I think anytime you have a statute, whether it is 
whistleblower for non-national security information, anytime 
you give employees a statutory basis for providing information 
with you, I think they know that they operate at some risk, 
whatever the statutory safeguard is.
    I think under the language--Peter will go more into this--
that in court, they certainly would have a statutory basis, but 
they know they are taking chances in giving you information 
that the Agency did not want disclosed.
    Chairman Shelby. Professor Raven-Hansen, we also did not 
intend to create, and do not intend to create a private cause 
of action, that is, a lawsuit for money damages here, for an 
individual employee within the Intelligence Community. Can our 
proposed language as currently drafted be construed to create 
such a cause of action?
    Mr. Raven-Hansen. I think as you currently drafted it, 
which is to ask the President to remind Federal employees of 
the existing rights they have, that it would not be construed 
in that fashion, and if the legislative history were clear that 
Congress has not such intent, I think it unlikely that courts 
would imply a cause of action here.
    I might add that they have implied a cause of action under 
the Lloyd-LaFollette Act, and I presume that law would remain 
in place.
    Chairman Shelby. But if either one of you has some 
suggestions to tighten the language without destroying what our 
intentions are, we will consider that.
    Dr. Fisher. Thank you.
    Chairman Shelby. The proposed Senate language requires the 
President to, ``take appropriate actions to inform employees 
that they may disclose information to this Committee'' if they 
reasonably believe that it is a direct and specific evidence of 
an act that falls within certain parameters.
    We do not expressly say that employees within the 
Intelligence Community have a ``right'' to provide information 
to this Committee. Could we, however, expressly grant an 
employee a right to bring such information to Congress, and 
remain within the constitutional limits of our authority? And 
if we can, what argument could we expect from the 
Administration if we did so?
    Dr. Fisher first?
    Dr. Fisher. At this point I would like to submit a response 
better reasoned on this than I can give you right now. I'd be 
happy to do that.
    I think the legislative language would grant an employee a 
right to bring information to the Intelligence Committees, and 
I further believe that the legislative language would be within 
the constitutional authority available to Congress. Apparently 
the Administration would continue to challenge such language on 
constitutional grounds, but I do not think the DOJ argument is 
persuasive as it now stands. Regarding your earlier question on 
a cause of action, courts will rely on the intent of Congress. 
Thompson v. Thompson, 484 U.S. 174, 179 (1988). In the 
legislative history, Congress can clarify its intent not to 
create a cause of action.
    Chairman Shelby. I would like that.
    Professor Raven-Hansen.
    Mr. Raven-Hansen. I think you could clearly phrase this as 
a declaration of Congressional--of employee rights, although I 
think it is best defended as an exercise of Congressional 
right. What it does now is remind employees of rights they 
already have and give them a channel for exercising them. I 
would see no objection to phrasing it as a right. I understand 
that the way it's been framed now is basically as an 
accommodation to the President, urging him to remind employees 
of their rights. Sort of an invitation for him to follow 
through. But if he doesn't take that invitation, I would 
rephrase this as a statement of both employee and Congressional 
rights.
    Chairman Shelby. The Administration emphasizes the, ``need 
to know factor'' a great deal in its policy statements, 
Executive Orders and legal briefs. In fact, Executive Order 
number 12,958 states that a person has, ``a need to know if 
access to classified information is required in order to 
perform or assist in a lawful and authorized governmental 
function.''
    The language offered at the Conference with the House 
Intelligence Committee narrowly defines the type of information 
that may be provided by an employee on the Committee. It 
includes only information, classified or otherwise, that the 
employee reasonably believes to provide direct and specific 
evidence of a violation of any law, rule, or regulation, a 
false statement to Congress on an issue of material fact, or 
gross mismanagement, a gross waste of funds, an abuse of 
authority or a substantial and specific danger to public health 
or safety.
    Do you two professors, do you agree that these categories 
of information are appropriately limited and specifically 
pertain to the oversight responsibilities of the Senate 
Intelligence Committee so as to be required to perform our 
lawful and our authorized governmental function as expressed in 
Executive Order number 12958.
    Dr. Fisher.
    Dr. Fisher. I think these categories that you mentioned, 
306, are appropriate, and I want to talk to some of my 
colleagues to see if any other categories occurred to them.
    Chairman Shelby. Would you submit some information to----
    Dr. Fisher. I'll submit it.
    Chairman Shelby. Both of you, on that?
    Dr. Fisher. I will. And I also want to say, Executive 
Orders, of course, are issued by the President to guide the 
Executive branch. The Executive Order can't restrict the powers 
and duties of Congress as a separate institution.
    Chairman Shelby. Okay.
    Do you agree that these categories of information are 
appropriately limited? You know, you're going to send that to 
me.
    Dr. Fisher. Uh-huh; I will.
    Chairman Shelby. Looks to be, but you want to do more.
    Dr. Fisher. Oh, I think the ones you have are appropriate, 
and maybe my friends in CRS have some other categories.
    Chairman Shelby. Could they be expanded and remain within 
our lawful and authorized functions?
    Dr. Fisher. I think they can. These categories come out of 
the whistleblower statute, and since you have a specific duty 
here in national security, there may be other language that 
would be also appropriate. But I want to submit that to you.
    Chairman Shelby. You know, both of you know that the 
President argues that it is his exclusive authority to 
determine who has, ``a need to know'' a particular piece of 
classified information, even if that individual is a Member of 
Congress.
    In the American Foreign Service Association versus 
Garfinkel, however, the government brief refers repeatedly to 
the concept of need to know and specifically argues that, 
``this important limitation is preserved when national security 
information is furnished through official agency channels to a 
relatively few Members of Congress who serve on a Committee 
that has been designated by that House to be responsible for a 
particular jurisdiction and area of defense, foreign affairs or 
intelligence.''
    It seems to me that the government in its brief in the 
Garfinkel case basically acknowledges that the Intelligence 
Oversight Committees have a need to know particular information 
within their specific jurisdiction.
    Do either one of you agree with that?
    Mr. Raven-Hansen. Absolutely. It is hard to imagine what 
information from the national security community is not within 
the appropriate jurisdiction of this Committee.
    Dr. Fisher. I think the Justice Department concedes the 
legitimacy of access----
    Chairman Shelby. In their brief, do they not?
    Dr. Fisher. In their brief and in other statements. And 
they--I think that the dispute comes down to the Administration 
trying to think up certain situations where there might be some 
embarrassment. But those situations, hypotheticals, shouldn't 
stand in the way of access that you need to fulfill your 
mission.
    Chairman Shelby. Is there any basis for the President to 
argue that evidence of misconduct within the Intelligence 
Community is not within the jurisdiction of the Senate 
Intelligence Committee?
    Dr. Raven-Hansen. Not at all.
    Dr. Fisher. I don't think so.
    Chairman Shelby. You gentleman realize, you can tell from 
the absence of Members here, we have a vote in progress, we 
have, I understand four or five consecutive roll call votes, so 
that is going to eat the rest of the morning up. It's just part 
of the hearing process.
    I appreciate the first panel being here. I apologize to the 
second panel, and I don't know when we can continue this, but 
we will certainly do this and we'll schedule, because we want 
to hear from the other side, too. And we appreciate any 
information written to this Committee by you, Professor Raven-
Hansen, or Dr. Fisher, will help us make this legislation work.
    Dr. Fisher. Thank you.
    Chairman Shelby. The Committee is going to adjourn.
    Thank you.
    [Thereupon, at 10:51 a.m., the Committee was adjourned.]


            DISCLOSURE OF CLASSIFIED INFORMATION TO CONGRESS

                              ----------                              


                      WEDNESDAY, FEBRUARY 11, 1998

                                       U.S. Senate,
                          Select Committee on Intelligence,
                                                    Washington, DC.
    The Select Committee met, pursuant to notice, at 9:00 a.m., 
in Room SH-216, Hart Senate Office Building, the Honorable 
Richard Shelby, Chairman of the Committee, presiding.
    Present: Senators Shelby, Kerrey of Nebraska, and Graham of 
Florida.
    Also Present: Taylor Lawrence, Staff Director; Chris 
Straub, Minority Staff Director; Dan Gallington, General 
Counsel; and Kathleen McGhee, Chief Clerk.
    Chairman Shelby. The Committee will come to order. We 
apologize for the delay last week, and now, but we do have 
intervening votes, as most of you realize, in the Senate.
    The Committee will meet today to continue hearings on the 
proposed legislation that would allow employees of the 
Intelligence Community to disclose certain types of information 
to an appropriate oversight Committee of Congress. Last week, 
the Committee heard from Dr. Louis Fisher, a senior specialist 
on separation of powers, with the Congressional Research 
Service, and Professor Peter Raven-Hansen, a professor of law 
at George Washington School of Law. Dr. Fisher and Professor 
Raven-Hansen presented arguments supporting the proposition 
that Congress and the Executive branch share constitutional 
authority over the regulation of national security information.
    Dr. Fisher is again with us today to continue discussions 
because a number of Members did not have an opportunity to 
question him prior to the series of Floor votes last week. Dr. 
Fisher, we thank you for being here.
    Seated with Dr. Fisher is Mr. Randolph D. Moss. Mr. Moss is 
the Deputy Assistant Attorney General for the Office of Legal 
Counsel within the Department of Justice. It was the Office of 
Legal Counsel that wrote the legal memoranda, which is at Tab D 
in the Members briefing books. On which the Administration 
based their constitutional objection to section 306 last year. 
Mr. Moss, we look forward to hearing from you today.
    Senator Kerrey.
    Vice Chairman Kerrey. Thank you very much, Mr. Chairman.
    Last November, the two of us made a commitment during the 
conference Committee that we would pass legislation to 
establish procedures for government employees to bring 
information of wrongdoing to Congress, even if the information 
was classified. And today's hearing is Part II of the process 
of you and I keeping our commitment.
    For me this is not about a particular Administration or a 
particular incident. This is about the freedom of Americans, 
some of whom are government employees, and it's about making 
this government work the way the founders intended.
    Today's hearing will help us further improve the 
legislation passed by the Senate last year and will also help 
inform the public on the need for this legislation.
    On some topics, such as reforming the Internal Revenue 
Service, the need for legislation is blindingly obvious because 
of problems that are apparent to all of us. However, on this 
topic, the need is present, but in a much more subtle fashion. 
We cannot quantify the number of government employees who would 
bring classified information of wrongdoing to Congress if the 
law established a procedure for doing it.
    Today these employees can take their concerns to their 
superiors, to the inspector general of their agencies, to the 
general counsels of their agencies, or even to the Attorney 
General. But if the employee feared for his or her career, 
these might not be appealing options.
    If the employee believes his boss to be guilty of or aware 
of the wrongdoing, or if agency management, or even the highest 
level of government were implicated in the wrongdoing, these 
would not be appealing options. If the employee believes 
himself to be in such circumstances, unable to safely report 
the wrongdoing in Administration channels, he or she is faced 
with two choices--neither of them good: come to Congress and 
take the consequences from his employer, or go to the press and 
risk even greater legal penalties for leaking.
    We can never know how many government employees are faced 
with this dilemma. I hope and presume the number is small. The 
quality and motivation of the Clinton Administration's foreign 
policy, national security and intelligence teams suggest to me 
that the number of employees with something to report is very 
low.
    This Administration has done more than any other to keep 
Congress informed on intelligence matters, including instances 
of wrongdoing. And it is aggressively declassifying old secrets 
and opening intelligence to the public to an unprecedented 
degree.
    So my support for this legislation is not connected to my 
concerns about a particular Administration. My concerns are for 
the access of government employees to Congress and the right of 
Congress to have the information it needs to carry out its 
constitutional responsibilities.
    There are already two laws--the Lloyd-Lafollette Act of 
1912 and the Whistleblower Protection Act of 1989--which give 
government employees the right to bring information of 
wrongdoing directly to Congress.
    The Administration apparently believes classified 
information is different because such information is created by 
the Executive branch and so much be controlled exclusively by 
the Executive branch on the grounds of what the Administration 
claims is the President's sole authority in national security 
matters.
    But the Constitution clearly gives Congress its own 
authorities in national security. Congress, not the President, 
raises armies and maintains navies. Congress, not the 
President, calls out the militia. And Congress, not the 
President, declares war. Congress, therefore, has the right to 
national security information. And in fact, Congressional 
Committees in the national security and foreign policy fields 
have been successfully working with and storing this 
information securely for many years.
    Further, Congress's annual responsibility to authorize and 
appropriate funds for national security and foreign policy 
purposes, and its continuing responsibility to oversee how 
those funds are spent gives Congress a need to know which 
justifies its access to the information.
    I stress with much certainty that this information is held 
closely and securely in Congress. As CIA Director Tenet told 
this Committee last week, Congress has a better record at 
keeping secrets than does the executive branch, which he said, 
quote, leaks like a sieve, end of quote.
    I don't claim perfection. Congress can always do better. 
But the argument that Congress doesn't have a need to know or 
can't be trusted with this information is a false one. In fact, 
our legislation has the potential to reduce damaging leaks by 
giving government employees less rationale for taking their 
classified concerns to the news media.
    Particularly in the murky and potentially dangerous world 
of intelligence, it seems self-evident that an employee who 
knew of serious wrongdoing in some classified program might not 
want to clear with her boss or her agency's inspector general 
or even with the Justice Department the fact that she was going 
to an oversight Committee of Congress with the information.
    It is equally obvious that Congressional oversight of these 
sensitive activities cannot take place without information.
    Mr. Chairman, it is our charge and our duty to protect and 
keep America and Americans safe. This legislation flows from 
that charge and that duty. We need to act this year to make 
these truths clear in our law.
    I thank you, Mr. Chairman, again for following up on our 
commitment that we made last November in the conference 
Committee.
    Chairman Shelby. Senator Graham, do you have an opening 
statement?
    Senator Graham of Florida. No opening statement, Mr. 
Chairman.
    Chairman Shelby. Mr. Moss, your entire written statement 
will be made part of the record in its entirety. You may 
proceed as you wish.
    Mr. Moss. Thank you, Mr. Chairman.
    Chairman Shelby. We're glad to have you.

STATEMENT OF RANDOLPH D. MOSS, DEPUTY ATTORNEY GENERAL, OFFICE 
            OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE

    Mr. Moss. Mr. Chairman, Mr. Vice Chairman, members of the 
Committee, I'm pleased to be here to address Section 306 of 
last year's Intelligence Authorization Bill as originally 
passed by the Senate. Last year, the Department of Justice 
concluded that the provision was unconstitutional. I'm here 
today at the Committee's request to explain our reasons for 
reaching that conclusion. I will present a summary of our 
position and would be happy to answer any questions that the 
Committee may have.
    I do want to note that, because Section 306 is the only 
proposal we have thoroughly reviewed, I'm not able today to 
provide the department's position on other proposals that might 
be developed. The department would, however, be pleased to 
review future proposals and to provide comments to the 
Committee at a later time. Section 306 would have required the 
President to inform employees of covered Federal agencies that 
their disclosure to Congress of classified information that the 
employer reasonably believes provides direct and specific 
evidence of misconduct is not prohibited by law, Executive 
Order or regulation or otherwise contrary to public policy.
    Congress, of course, has important oversight 
responsibilities and a corollary interest in receiving the 
information that enables it to carry out those 
responsibilities. Those interests obviously include 
Congress'sability to bring to light evidence of misconduct by Executive 
branch employees, including evidence that Executive branch employees 
have misled or misinformed Congress.
    We are committed to seeking to accommodate Congress's 
oversight needs in ways that are consistent with the Executive 
branch's constitutional responsibilities.
    Moreover, I would emphasize that our concern with Section 
306 focuses on the process by which you would secure disclosure 
of evidence of misconduct. It is clear that misconduct be 
ferreted out. In that respect, I would note, as the Vice 
Chairman noted, that existing rules require an Executive branch 
employee who discovers waste, fraud, abuse or corruption to 
bring such misconduct to the attention of appropriate 
authorities who in turn can and should take appropriate 
corrective measures. In some cases, this may mean going to 
someone within the employee's own agency. In other cases, it 
may mean going to someone outside the agency, for example the 
Department of Justice.
    The critical flaw in Section 306 is that it would vest any 
Federal employee--I should say any covered Federal employee--
having access to classified information with a unilateral right 
to circumvent the process by which the Executive and 
Legislative branches accommodate their respective interests in 
that information. Under Section 306, any Federal employee with 
access to classified information that, in the employee's 
opinion, indicates misconduct can determine how, when and under 
what circumstances that information is shared with Congress. 
The provision would do so, moreover, no matter what the effect 
on the President's ability to accomplish his constitutionally 
assigned functions in the areas of national security and 
foreign relations. Such a rule would violate separation of 
powers.
    A host of precedents beginning at the founding of the 
republic support the view that the President has unique 
constitutional responsibilities with respect to national 
defense and foreign relations. John Jay, later the first Chief 
Justice of the United States, argued in the Federalist Papers 
that secrecy is at times essential to the Executive branch's 
discharge of its responsibilities in these core areas. As long 
ago as 1792, President Washington, with the concurrence of his 
distinguished cabinet, took the position that Congress could 
not require the Executive branch to produce documents whose 
disclosure would be contrary to the public interest.
    Since the Washington Administration, Presidents and their 
senior advisers have repeatedly concluded that our 
constitutional system grants the Executive branch authority to 
control the disposition of secret information. Then-Assistant 
Attorney General William Rehnquist, for example, concluded over 
30 years ago, and I quote, The President has the authority to 
withhold from Congress information in the field of foreign 
relations or national security if, in his judgment, disclosure 
would be incompatible with the public interest, end quote.
    The Supreme Court has similarly recognized the importance 
of the President's ability to control the disclosure of 
classified information. In the Egan case, the court noted that 
the President possesses, ``the authority to classify and 
control access to information bearing on national security,'' 
and continued, ``quite apart from any explicit Congressional 
grant.''
    Similarly, Justice Stewart, in his concurring opinion in 
the Pentagon Papers case, said, ``It is elementary that the 
successful conduct of international diplomacy and the 
maintenance of an effective national defense require both 
confidentiality and secrecy. In the area of basic national 
defense, the frequent need for absolute secrecy is of course 
self-evident.'' He continued, ``I think there can be but one 
answer to this dilemma if dilemma it be. The responsibility 
must be where the power is. If the Constitution gives the 
Executive a large degree of unshared power in the conduct of 
foreign affairs and in the maintenance of national defense, 
then under the Constitution, the Executive must have the 
largely unshared duty to determine and preserve the degree of 
internal security necessary to exercise that power 
successfully. It is clear to me,'' that is, Justice Stewart, 
``that it is the constitutional duty of the Executive to 
protect the confidentiality necessary to carry out its 
responsibilities in the fields of international relations and 
national defense.''
    The principal flaw in Section 306 is that it would permit 
individual Federal employees unilaterally to determine how, 
when and under what circumstances classified information will 
be shared with Congress. It would authorize any Federal 
employee to circumvent a Presidential determination--and again 
I should say any covered employee--to circumvent a Presidential 
determination that restricted Congressional access to certain 
classified information in extraordinary circumstances.
    In the National Security Act, for example, Congress itself 
recognized the need for heightened scrutiny in certain, 
``extraordinary circumstances affecting vital interest of the 
United States.'' and the Congress authorized the President to 
sharply limit Congressional access to information relating to 
covert actions in such cases.
    In contrast, Section 306 would deprive the President of the 
authority to decide, based on the national interest, how, when 
and under what circumstances particular classified information 
should be disclosed. This is an impermissible encroachment on 
the President's ability to carry out core executive functions. 
The decision when, whether and under what circumstances to 
disclose classified information must be made by someone who is 
acting on the official authority of the President, and who is 
ultimately responsible to the president.
    The Constitution does not permit Congress to authorize 
subordinate Executive officials to bypass the orderly 
procedures for review and clearance by vesting them with a 
unilateral right to disclose classified information, even to 
Members of Congress. Such a law would squarely conflict with 
the framers' considered judgment, embodied in Article II of the 
Constitution that, within the Executive branch, all authority 
over matters of national defense and foreign affairs is vested 
in the President as chief executive and Commander in Chief.
    Professor Raven-Hansen last week suggested that Section 
306, at least with modest revision, would strike an acceptable 
balance between the competing Executive and Legislative 
interest relating to the control of classified information. 
That balance under Section 306, however, would be based on an 
abstract notion of what information Congress might need to know 
relating to some future inquiry and what information the 
President might need to protect in light of some future set of 
world events. Such an abstract resolution of the competing 
interests at stake is simply not consistent with the 
President's constitutional responsibilities respecting national 
security and foreign affairs. He must be free to determine, 
based on particular and perhaps currently unforeseeable 
circumstances, that the security or foreign affairs interests 
of the nation dictate a particular treatment of classified 
information.
    In sum, Section 306 would vest any Federal employee, any 
covered Federal employee, who has access to classified 
information, with a unilateral right to disregard the 
President's procedures for the dissemination of such 
information, as well as to bypass the accommodation process 
between the two branches and disclose that information to 
Congress, no matter how grave the risk to national security or 
the President's foreign affairs initiatives. Such an enactment 
would constitute an impermissible intrusion on the President's 
constitutional authority.
    Thank you, Mr. Chairman.
    Chairman Shebly. I'm going to start with a question to Dr. 
Fisher, and then I'll go to you, Mr. Moss.
    There's been a great deal of debate among my colleagues in 
the House, Dr. Fisher, on whether there are any--any 
nonstatutory alternatives to this legislation. We've discussed 
here numerous variations on our conference language. We've 
entertained various alternatives to statutory enactments. In 
the end, our goal is to preserve our constitutional prerogative 
to receive classified information that may be evidence of 
misconduct within the Intelligence Community. However, as long 
as the President asserts a plenary authority to withhold 
information from Congress as he sees fit, I believe we will be 
unable to do the job the American people elected us to here.
    Dr. Fisher, do you believe that there are any nonstatutory 
means by which we can reach our goal or will the ``prior 
authorization'' problem still exist?

   STATEMENT OF LOUIS FISHER, CONGRESSIONAL RESEARCH SERVICE

    Dr. Fisher. I think there was a nonstatutory remedy. That's 
what we've done up to now. But as you say, once the President 
and the Justice Department begin to draw the line to say that 
the President has some plenary and exclusive duty here, then I 
think, you see that the nonstatutory process is not going to be 
that reliable and you need some statutory language.
    Chairman Shelby. Mr. Moss, I believe your presentation, at 
least as I understand it, is based on the version of 306--of 
the 306 passed by the Senate, and not on the version considered 
at conference as Senator Kerrey alluded to. The conference 
language provided to the department prior to last week's 
hearing is much narrower in scope. The legislation we're 
considering today does not give, ``any Federal employee having 
access to classified information a unilateral right to come to 
Congress.'' The language we're considering today pertains only 
to the Intelligence Community personnel. It also restricts 
disclosure to those Committees having primary responsibility 
for oversight of the agency involved.
    Our goal is to allow a limited universe of Executive branch 
employees to come forward to an appropriate Committee without 
fear of reprisal.
    Having said that, could you explain to the Committee today 
how your analysis would change with the narrowing of the 
language, if it would at all? And can you keep the new version 
of the language--legislation in mind as you address, you know, 
the following questions I'll get into?
    Mr. Moss. I would be happy to do that, Mr. Chairman, and I 
apologize to the extent there is any confusion regarding the 
provision we were addressing.
    Chairman Shelby. Sure.
    Mr. Moss. The answer to your question, I believe though, is 
that as a matter of constitutional law, I do not believe that 
the limitation on the scope of who may make a disclosure and to 
whom the disclosure may be made significantly changes the 
constitutional analysis. I think the same concern exists that 
employees now in covered--within covered agencies could 
determine for themselves to come forward with classified 
information without first determining whether the President or 
his senior advisers may believe that the information needs to 
be revealed in a particular manner at a particular time for 
national security or foreign affairs reasons.
    Chairman Shelby. But you understood what we're trying to do 
here? Our goal here, is to limit in scope our legislation to 
people in the Intelligence Community that would have knowledge 
of fraud, corruption and so forth, that they could come to 
members of Intelligence Committees in both houses that are 
privileged to have all this classified information to begin 
with.
    Mr. Moss. I do understand that, Mr. Chairman, and----
    Chairman Shelby. Do you see where we're going, or trying to 
go?
    Mr. Moss. I do see where you're going with that. And what I 
would note is that I think that, as has previously been noted 
by the Vice Chairman, there is a tremendous amount of 
classified information that this administration has shared with 
this Committee and its House counterpart. And I don't mean to 
suggest in any way that the Administration should not be fully 
sharing that information and fully cognizant of the very 
legitimate oversight needs of this Committee.
    The concern, though, just goes to the question of whether 
the President or his delegees will maintain an ultimate 
decision in the very, very rare extraordinary circumstance of 
whether it's necessary to disclose information in a particular 
manner.
    And as I mentioned in my testimony, and example of that 
comes to mind is the National Security Act where, I think, 
Congress wisely noted that there could be circumstances in 
which disclosure should be very limited and gave the President 
authority to limit disclosure in that manner. I should note 
though even with respect to that provision in the National 
Security Act, President Bush expressly reserved his 
constitutional authority even to take a narrower approach with 
respect to the sharing of information. And Congress, I think 
disagreed with that approach, but simply said the President's 
view is his view. We have our view on this and whatever the 
constitutional rule is in this areas will actually control.
    Chairman Shelby. Mr. Moss, shouldn't employees in the 
Intelligence Community of the United States government have a 
safe harbor, an outlet where they know there's corruption going 
on, they know there's wrongdoing? They ought to know, people 
here in the Congressought to know, especially people that serve 
on the Committees of both Houses, shouldn't there be an outlet for 
that?
    Mr. Moss. Well, you know, I'm not a policy specialist by 
any means, but what you suggest is, I think, a sensible point. 
I think that there does need to be an outlet of some sort. I 
think that current law does provide for a number of outlets. I 
can understand circumstances in which an employee, for example, 
might not want to go to someone in their agency.
    Chairman Shelby. Sure.
    Mr. Moss. And they might then be able to go, for example, 
to the Attorney General.
    Chairman Shelby. If they knew somebody they were working 
for in their agency was lying to Congress, lying about a lot of 
things, covering up things, and was really deeply troubled with 
this, and then had no outlet. We're trying to provide them an 
outlet. That's our goal.
    Mr. Moss. I understand that and I think that is a laudable 
goal, and I think that there is just a very real tension 
between some very significant interests at stake here--the 
interest in the President in controlling the access to national 
security information; Congress' legitimate interest in 
oversight and maintaining, by that same virtue, the secrecy of 
information.
    Chairman Shelby. Sure.
    Senator Kerrey?
    Vice Chairman Kerrey. Mr. Moss, like the Chairman, I was a 
bit confused. You cited the Egan case. You seemed to imply that 
we're asking that covered individuals bring information to 
unauthorized persons. And we've narrowed this legislation in 
Section 306 to deal with this Oversight Committee. So it does 
lead us to be a bit confused when you cite something that 
actually references the Executive branch's legitimate concern 
about the need to control the dissemination of classified 
information to unauthorized people.
    I mean, you make a very good case there, but we're not 
asking for information to be disseminated to unauthorized 
people. Everybody on this Committee is authorized. It's not a 
question of dissemination of information to unauthorized. We're 
talking about relevant situations that, Mr. Moss, that I think 
have three components of concern for me. One is the trust to 
the people. I mean this is a--anytime you classify, it's an act 
that by its very nature is an anathema to government of, by and 
for the people. We do it for a very good reason. I'm not 
against the maintenance of secrets for the purpose of keeping 
the American people safe. But it's important for us to 
recognize that it's an anathema to an open system of 
government. And unlike other Committees on which I sit, I don't 
have the press, and I don't have open sources that are out 
there evaluating how these agencies are doing their business. 
Because we've classified them, it's only our eyes and ears that 
determine whether or not we're getting the information. So I 
think trust is number one.
    Money is very much an issue because you're making decisions 
about taxpayers' money. And overriding all of these things is 
the question of the American people's security. I mean every 
classification decision and every dollar that we spend has to 
add value to keeping the American people safe. That's our 
mission. And if all I'm doing is keeping myself safe from 
people seeing what I'm doing because I've just made a terrible 
mistake and I don't want anybody to know about it, then that, 
it seems to me, needs to be brought to the Committee in an 
environment where the man or woman doing it can bring it 
without fear that they're going to lose their job.
    You used St. Clair's Expedition, 1791. Let me bring one a 
bit more relevant, closer to this time frame, since, as you no 
doubt know, there's been a tremendous widening of authority to 
classify things since 1791--since we begin to talk about an 
enemy within, as well as an enemy without, since we begin to 
presume that some people in the United States can be an enemy 
of our own interests. It gets a bit confusing sometimes and we 
treat the American people as if they could potentially be an 
enemy as well.
    So let me take a more current example. In 1992, this 
Committee, through an audit of the National Reconnaissance 
Office, discovered a building that the NRO was going to occupy 
out in suburban Virginia. And the existence of that building 
and the use of that building was classified at the highest 
level. So our auditing discovered that at every turn, every 
turn in the decision making process--the American people need 
to understand it's not easy to make decisions in a secret 
environment. It is not easy. It's done for the purpose of 
keeping the American people safe, and it's easier in a secret 
environment to make mistakes because you don't have people 
watching you. You don't have the kind of oversight that you 
need. You need that check. So at every turn, when the decision 
was made about how to build this building, they took the 
expensive turn. And at the end of the day we ended up with a 
building that cost at least twice as much as it should have, 
maybe three times as much as it should have. It went way beyond 
what was necessary.
    And then in 1993, we find ourselves with a situation--well, 
what do we do about it? You know, the bad guys knew about this 
building. Everybody knew what this building was. It was sitting 
out in suburban Virginia like a rather sore and embarrassing 
thumb. And we pressed DCI Woolsey to declassify, and he did 
declassify. And there was an awful lot of wailing and gnashing 
of teeth, and I think it was quite healthy. That kind of public 
disclosure, that kind of declassification, I give the President 
and Director Woolsey full credit for declassifying. They didn't 
get a lot of credit for the act and the decision to declassify. 
But that's the kind of thing we're talking about: a decision 
that's made that's wrong.
    And I'm sitting out there as a GS-12 and I'm worrying about 
whether or not I'm going to get advanced if I bring that kind 
of mistake to the Oversight Committee. So--I mean our concern 
is trust with the people. We do not want to classify something 
if we're not adding value in terms of security. Our concern is 
making certain that taxpayers money is being well spent. And 
our concern, at the end of the day as well, is making sure that 
the American people are safe, that this intelligence effort 
adds value to the safety of their lives.
    And it seems to me that what we're asking for in Section 
306--although I, you know, I hear the--I'm not a constitutional 
lawyer and you make very compelling cases, but they're narrow 
cases. And I think that we have to consider this legislation in 
the context of maintaining the trust of the people that we're 
not overclassifying, maintaining the trust of the people that 
we're spending their money well, and maintaining the trust of 
the people that we're making the best effort that we possibly 
can to make sure that this intelligence keeps them safe.
    Now none of this was for the purpose of provoking an answer 
from you necessarily, but I want you to know that I listened to 
your testimony and found myself making notes here, thinking I 
could go item by item and dissect and disagree at any point in 
the testimony. But it would not serve the purpose of explaining 
to you why I think Section 306, though you make a 
constitutional argument--let's, you know, let's examine and 
let's hear the counter argument. I think there is an urgency to 
change the law. There is urgency in all three of the categories 
that I have described.
    Mr. Moss. Mr. Vice Chairman, I want to make clear that I 
concur in your view fully that wrongdoing must be ferreted out 
and cannot be tolerated. I concur in your view that this 
Committee has an extremely important oversight function.
    Vice Chairman Kerrey. If I could interrupt you, Mr. Moss, 
ferreting out implies that there is some sort of dark and evil 
conspiracy out there where people are intentionally, you know, 
that one day, that one morning they wake up and they drink a 
cup of coffee and they become a bad person. And I think it is 
very important for me to say a second time, I'm deeply 
appreciative of the difficulty of making decisions when you 
close the doors and you don't let the American people see what 
you are doing because you are concerned about their security.
    It is not because we--the initial classification decision 
is done for good and legitimate reasons.
    Mr. Moss. Right.
    Vice Chairman Kerrey. But it creates difficulty, because 
you don't have the same kind of oversight that we have got in 
other areas and all of us are going to make mistakes. So when I 
hear you use the verb ferret out, I mean, I want to make sure 
that I once more insert this notion that the American people 
should not suffer the illusion that I have got a bunch of nasty 
people out there intentionally trying to do bad things. It's 
just--it's not easy to make decisions in a secret or higher 
environment.
    Mr. Moss. And I appreciate that clarification and I did not 
mean to suggest anything to the contrary.
    Vice Chairman Kerrey. I understand. I just wanted to----
    Mr. Moss. But your point that you make I think kind of 
highlights for me what is significant about this is that to the 
extent that we are talking about judgments regarding abuse, 
excessive spending, should someone have authorized spending the 
extra $1,000, $10,000, $100,000 on a particular piece of 
equipment or something within a building, those sorts of 
decisions are, of course, judgment calls that people need to 
make. And to authorize any covered employee to make that 
judgment for themself and say, you know I think this is really 
grossly wasteful and shouldn't be tolerated, to allow an 
individual who has then made that decision for themselves to 
bypass the procedure for sharing classified information and to 
take the President and his senior advisers out of the process 
of deciding whether sharing information is in the national 
interest, I think, raises a constitutional concern.
    Vice Chairman Kerrey. Mr. Moss, may I just beg the chairman 
to indulge us to do one follow up on that.
    Give me some comments on our concern as we hear from not 
just employees that are in covered positions but any employee. 
I mean, you are sitting out there as an employee, you've got a 
good job, you've got a family, you've got a family that depends 
on your income. You say I've got a process to take this up the 
food chain. I can run it up to an inspector general, I can take 
it to--but I could also lose my job. I mean, my superior may 
not like the fact that I have reached a conclusion that they 
are wasting government money or that they are doing something 
wrong. They may take a dim view of the conclusion; they may 
disagree with. You know, the old joke about the major telling 
the general exactly what happened. The general throws him out 
of the office and the major says, I mean, sir, you didn't get 
to be general did you by just kissing everybody's rear end. He 
said, no, but that's how I got to be lieutenant colonel.
    And you know, it seems to me that you have got to talk to 
us a little about it, at least acknowledge that employees are 
concerned that there could be adverse consequences of 
disclosure through the normal process.
    Mr. Moss. Well, I think that's a fair point. But to the 
extent that that is the concern, I think that there are ways of 
getting at that sort of problem, providing protection for 
employees that if they go to an inspector general or go to the 
Attorney General with information that they cannot be punished 
for having done that--whistleblower protection in that respect 
without undermining the Executive branch's authority.
    Vice Chairman Kerrey. Bingo, you agree with us then. That's 
all we are trying to do. We have common ground here.
    Mr. Moss. I think we have a great deal of common ground and 
I think what we are talking about here really is the rare 
circumstance, but I think that it is essential the Executive 
branch at some level maintain control over how the information 
is shared with respect to that rare circumstance.
    Vice Chairman Kerrey. Dr. Fisher, are you chomping at the 
bit or do you want to----
    Chairman Shelby. He's wanting to.
    Dr. Fisher. I had two comments on listening to the 
statement by OLC. One comment was I think most of the 
statements in there have to do with a situation where Congress 
is going to the President for information, and the President 
says I am sorry I can't release that to you. There is a long 
history and I think Members of Congress would agree that lots 
of times Members of Congress and Committees don't have a right 
to certain information, but that's not Section 306. That's a 
different issue.
    And I also find in the statement from OLC, a lot of 
references to what courts have said, lower courts and the 
Supreme Court, about thePresident's powerful position in 
foreign affairs and national security. Most of that's dicta, but still 
it is interesting to read dicta from the courts. But what the courts 
are doing here is saying that when it comes to a conflict between the 
courts asking for information and the President, as with the Watergate 
tapes case on page 11 of the OLC's statement, any time it has to do 
with military, diplomatic or sensitive national security secrets, 
courts have traditionally shown the most--utmost deference to 
Presidential responsibilities.
    That is fine for the courts to make that judgment because 
they don't have much of a role in foreign affairs and national 
security. But Congress doesn't have to defer.
    So I think that much of the statement doesn't relate to the 
objective of Section 306 and much of the strength in terms of 
Presidential responsibility goes to judicial deference and that 
is not an issue with Section 306. It is Congressional deference 
and Congress has such a powerful, explicit role in national 
security to carry out its mission.
    Vice Chairman Kerrey. Thank you.
    Chairman Shelby. Mr. Moss, you want to respond to that?
    Mr. Moss. I would be happy to.
    With respect to Dr. Fisher's point that these issues 
usually arise in the context of Congress going to the President 
requesting information, the President making a determination 
about whether he thinks, in the interest of national security, 
the information could be shared, how, when and under what 
circumstances, that is to argue the way the system should work. 
And in fact, I have some recollection that very early on in 
this nation's history, there was a question of whether the 
request should be directed to the President or to his 
subordinates and determination was made that the request should 
be made to the President. And the reason for that is that it is 
the President or delegee that has to make the ultimate decision 
regarding national security and his foreign affairs powers. 
That authority, at least within the Executive branch, is vested 
in one place.
    With respect to the Supreme Court decisions, I agree that 
there is no Supreme Court decision directly on point here. 
There is language in cases which I think is supportive of the 
view that we are stating. And the reason that there are not 
Supreme Court decisions directly on point is that by and large 
the accommodation process between the Executive branch and the 
Legislative branch works and they work it out between 
themselves to serve both interests. But that is in a process 
which needs to take place at a level in which the President or 
his delegees can make determinations about how the system 
should work and not simply any covered employee believes they 
have discovered abuse of some sort.
    And finally--let me leave it at that.
    Chairman Shelby. Senator Robb.
    Senator Robb. Thank you, Mr. President. I regret that after 
the vote, I had to participate in a hearing in the Foreign 
Relations Committee and did not have the benefit of the opening 
statements of our participants or the questions that you and 
the Vice Chairman have asked.
    I understand there is one area that has not been explored 
that I would like to explore very briefly and then I will wait 
for the next round, if that should take place before I have to 
go to yet another meeting that involves the Armed Services 
Committee, all three being conveniently scheduled at the same 
time which is frequently the case for which I apologize.
    I would like to ask the question about the need-to-know 
aspects. It sounded to me like you were getting close to it 
just a minute ago. But is it the position of the Executive 
branch of government that the president has the authority, 
under the Constitution, to withhold classified information that 
may be direct and specific evidence of a violation of law, a 
material false statement to Congress, or gross mismanagement 
within the intelligence community? Is that the position that 
the Executive branch takes in this case? And if so, from whence 
does that particular authority derive?
    Mr. Moss. Senator Robb, it's the position of the Executive 
branch that the President needs to maintain ultimate 
responsibility regarding how, when and under what circumstances 
information that could affect the national security or foreign 
affairs is shared with Congress. This is--that is not to 
suggest that the information shouldn't be shared with Congress, 
but rather that the President or his senior advisers need to 
make the decision to at least have the opportunity to make the 
decision about how, under what circumstances and what manner 
that information should be shared so that they can protect 
national security and foreign affairs interests.
    Senator Robb. Okay. I don't think there would be any 
disagreement as to the old questions of sources and methods and 
nondisclosure in those areas. But in terms of the absoluteness 
of the question, when push comes to shove, assuming that there 
is some appropriate venue for resolving that particular matter, 
is it your view or Dr. Fisher's view that the President act or 
those acting in his stead have the absolute authority to make 
the final decision, in effect to withhold, perhaps based on the 
disclosure of sources and methods being inevitable if 
information is disclosed, notwithstanding the security 
classification of any of the material and the clearances of the 
Members of Congress or the Committee to deal with that kind of 
sensitive information?
    Mr. Moss. Well, I'll let Mr. Fisher address the question, 
as well. But the Executive branch's view with respect to the 
question you raised is that the President does need to maintain 
ultimate responsibility to decide whether in a particular 
circumstance--and I think what we're talking about is 
extraordinary, very, very rare circumstances--that information 
should not be shared, or that it can only be shared under very 
limited circumstances.
    Senator Robb. Again, I'm suggesting that direct evidence of 
some kind of wrongful conduct, something that would fall into 
the purview of the general discussion that has been carried on 
here. If there--it's your view that if the Executive branch 
feels strongly enough about it--is that the criteria, that it's 
too important, under any circumstances to be shared even though 
it's in essence evidence of wrongdoing by some element of the 
Executive branch?
    Mr. Moss. Well, I think that if one goes back to the time 
President Washington first looked at this question following 
the St. Clair expedition, that what we were talking about there 
was not dissimilar from what we're talking about here today. 
There were charges of mismanagement regarding the expedition. 
The Army was devastated in the expedition and there was an 
investigation of what happened. Where did this go wrong? Was 
there misconduct involved here? President Washington convened 
his Cabinet, including the likes of Thomas Jefferson, and they 
all agreed that the President needed to maintain ultimate 
authority to decide whether it was in the public interest to 
share the information.
    There they did decide to share the information and I think 
that that is what we would likely see in most circumstances. 
But I think the ultimate answer to the question that you're 
seeking is that the President does need to maintain ultimate 
authority to decide not to share information or I think, more 
likely, to limit the time or manner in which information is 
shared, even if that information arguably relates to 
wrongdoing.
    Senator Robb. I think the qualification of time or manner 
is certainly understandable. But again, when you push the 
question to the limit--and I appreciate the fact that in 
support of the argument, you have quoted two Virginians, which 
is always persuasive with this particular Member.
    But again, sometimes the only way we can test the validity 
of a particular proposal is to subject it to the toughest case 
scenario. And again, I would ask that--do you believe--and I 
will leave it at this--do you believe that there are 
circumstances that the--let's isolate it a little bit more--
that the sole matter of concern is a violation or a misdeed or 
something by the Executive branch, that there are no collateral 
matters involved but because the disclosure of that misdeed 
itself would be so significant that the Executive branch or 
those operating under the authority of the Executive branch 
could invoke that defense or privilege and withhold the 
information from a body duly constituted? Again, we did not 
have the oversight Committees back in the days of Mr. 
Washington and Mr. Jefferson.
    Mr. Moss. I do think that it is a decision that the 
President ultimately needs to make, and I think that it's a 
decision that will depend very much on the context. I mean, one 
can imagine a circumstance--and I hate to get into 
hypotheticals here because it's not my field, and I think 
it's--I don't want to get into--I think it's a question of 
principle rather than hypothetical. But let me just give you an 
example. One can imagine a circumstance in which the President 
meets with a leader of another nation, just the President and 
the leader of the other nation and their two interpreters in 
the room, and the leader of the nation says I need to share 
some information with you so we can negotiate this very 
important issue. But if I'm going to share this information 
with you, I need your absolute commitment that the information 
will never leave this room. The information is then shared 
after the President makes the commitment.
    The question is, can that interpreter on his or her own 
decide, you know, I think there may have been something that 
Congress should know about here, perhaps, relating to some 
abuse. But that interpreter or lower level government employee 
is deciding for his or herself and could therefore require the 
President in essence to break his word in that context and 
undermine the ability of the Executive branch to negotiate in 
the future.
    Senator Robb. Mr. Chairman, my time is expired, but could I 
just ask Dr. Fisher if he has a response to that same general 
question?
    Chairman Shelby. Go right ahead; you certainly can.
    Dr. Fisher. I did. When you raised that point I think the 
concern I have is that, unlike the St. Clair expedition where 
every bit of information was given to Congress for its 
investigation, there are recent cases where the Executive 
branch takes this point of view that foreign affairs is 
exclusive for the President and Congress is denied information. 
I'm thinking of the case in the Reagan years where Congress 
looked into a dispute with Canada. Secretary of the Interior 
Watt said, sorry, you can't have that information. That relates 
to foreign affairs.
    And this was foreign commerce, something explicitly given 
to Congress in Article I. Well, eventually the information was 
revealed. But you can see the frame of mind where, once 
something falls under foreign affairs and national security, 
the door supposedly closes to Congress.
    Senator Robb. Mr. Chairman.
    Chairman Shelby. Yes, sir?
    Senator Robb. I just----
    Chairman Shelby. You go ahead.
    Senator Robb [continuing]. Conjured up one hypothetical and 
I'll----
    Chairman Shelby. You're doing well. You keep on.
    Senator Robb [continuing]. Quit at this, if I may.
    But let's assume, for the purposes of the question, that a 
President issues a Finding that is clearly contrary to U.S. 
law, and the consequences of the disclosure of that Finding 
would bring about repercussions that are clearly contrary to 
the national interests in a significant way. That puts it, I 
think, as close as you could put it to the question we're 
trying, at least I'm trying, to grapple with.
    Does that change your view in any way if it is put in that 
manner? In other words, there--I'll use an even more specific 
hypothetical, because it's been discussed a great deal lately 
with respect to the question of what opinions are available to 
the United States against Saddam Hussein, and if a specific 
directive that was contrary in terms of assassination of 
foreign leaders or whatever was to be given. Again, I'm--this 
is nothing classified that I'm talking about. I'm talking about 
a hypothetical that could not, under our current law, be given.
    But let's say that for whatever reason, such as 
hypothetical finding was issued and this by itself would 
trigger the kind of an international reaction that would be 
adverse in ways that I think all of us could understand. What 
would be the result of an attempt by the President not to share 
that Finding with the Congress or some other designated group?
    Dr. Fisher. Well, the response is mostly for Mr. Moss. But 
I would say if the President has signed a Finding that's in 
violation of law, that would be against the law as it now 
stands, as it was changed afterIran-Contra, or if the 
President, in violation of the Executive Order was to authorize 
assassination, then your question would be, would someone in the 
Executive branch, a lower level employee, be able to share that----
    Seator Robb. In the Whistleblower, yes.
    Dr. Fisher [continuing]. To share that with the Committee 
without going through superiors. I would think that would be a 
healthy thing to do. But let's see what Mr. Moss says.
    Mr. Moss. Well, I would note that, in fact, the National 
Security Act does require reporting to Congress by the 
President and prompt reporting of violations of the 
intelligence laws. I think that one could imagine some 
extraordinary circumstance in which a President might determine 
not to, at least at a particular time or in a particular 
manner, report a violation of law where there were grave 
national security implications to doing so. I mean it's 
obviously an extremely difficult question that you raised that 
I think goes to, in a very significant manner, the competing 
tensions at stake here. There are very legitimate interests 
this Committee, this Congress and the American public has in 
this area. And there are also potentially very grave national 
security and foreign affairs ramifications.
    The point that I hope to make today is just that those very 
difficult pressing decisions need to be made not by any covered 
employee who might form a judgment, which could well be 
misinformed, but needs to be made through the accommodation 
process and with the input of the President and his senior 
advisers.
    Seator Robb. Thank you.
    I ought to reiterate that I'm not suggesting that the 
scenario that I have just discussed in any way relates to 
reality. I don't anyone to be--to misinterpret that particular 
fact. And indeed it, Mr. Chairman, is one of the reasons that I 
prefer that the majority of these sessions be held in closed 
session rather than open session.
    But with that, I thank both the Chairman and the Vice 
Chairman very much for allowing me to extend a little beyond my 
time.
    Chairman Shelby. Senator Robb, I agree with you. We don't 
hold many sessions that are open. I though this, in this 
particular part of what we're doing, should be open to the 
public because I think the public has a great interest in what 
we're doing and what our goal is here.
    Mr. Moss, as I understand it, the Administration argues 
that the President has exclusive and unimpeded authority to 
control the collection, the retention and dissemination of 
intelligence and national security information. I understand, 
however, that case law, as you--supports the proposition that a 
grant of exclusive power is recognized only if that grant is 
explicit in the text of the Constitution, In fact, the only 
statutes that have been struck down by the Supreme Court on 
separations of powers grounds have been determined to have 
violated specific, textual constitutional problems. That's my 
understanding now. I haven't practices law in a long time, and 
you're doing it today.
    Could you, Mr. Moss, please direct me to the explicit 
constitutional text that grants the President of the United 
States the exclusive authority to regulate national security 
information? I have a copy of the Constitution here. You've 
probably got one.
    Mr. Moss. Sure.
    Chairman Shelby. But, I don't find it in the Constitution 
and you admitted earlier, at least my understanding, that the 
Supreme Court has never rules on this directly. Is that 
correct?
    Mr. Moss. That is correct, Mr. Chairman. The one 
opportunity they had to do so was in the Garfinkel case----
    Chairman Shelby. Absolutely.
    Seator Robb [continuing]. Where they ended up remanding and 
vacating the decision as moot.
    Chairman Shelby. Okay.
    Mr. Moss. But the answer to your question is, of course, 
that there is no provision in the Constitution which says the 
President maintains exclusive authority with respect to 
national security information.
    Chairman Shelby. That's what I thought. Okay.
    Mr. Moss. The authority that we're asserting flow from what 
are express grants to the President in his--in the areas 
dealing with national security and foreign affairs. And I 
should note, just more by a point of interest, that the 
standard that you articulated regarding the balancing is in one 
of the great Supreme Court decisions on the subject: Justice 
Jackson's concurring opinion in the Youngstown Steel case, the 
steel seizure case. And the point of interest that I note is, 
is that when Justice Jackson----
    Chairman Shelby. But that case is not controlling of what 
we're trying to do.
    Mr. Moss. No, not at all, rather it simply states the 
standardthat you're referring to here where there is not an 
express grant of authority to the President, that one engages in an 
analysis of the competing interests of the branches, and you look to 
what Congress has said respecting the President's authority in the area 
as well.
    The point I wanted to make was that Justice Jackson, who 
authored that famous opinion, when he was Attorney General 
declined to provide to Congress information relating to the 
FBI--that the FBI had in its possession regarding labor unrest 
on national security grounds and asserted exactly the point of 
authority that we're asserting here today.
    Chairman Shelby. Isn't there an extensive precedent for 
Congressional regulation of government information?
    Let me give you some examples. The Freedom of Information 
Act, you're familiar with that? The Privacy Act of 1974; the 
Government in the Sunshine Act; the Federal Records Act; the 
Central Intelligence Agency Information Act; the Foreign 
Intelligence Surveillance Act; the Classified Information 
Procedures Act; Presidential approval in reporting of covert 
actions and the espionage laws. You're familiar with that. 
Isn't that getting into this area?
    Mr. Moss. Well, I don't dispute at all, Mr. Chairman, that 
Congress does have authority to legislate in the area of 
classified information and, in fact, Congress has made criminal 
certain disclosures of classified information.
    Chairman Shelby. Absolutely.
    Mr. Moss. The point I mean to make is that, in this area 
where there are foreign affairs and serious national security 
interests at stake, the President at least needs the 
opportunity, though, to assert on behalf of the Executive 
branch that his power, his authority to fulfill his 
constitutional responsibilities not be undermined.
    Chairman Shelby. But not pre-imminent authority, is it? 
You're not saying that he's asserting a pre-imminent authority 
in this area, are you?
    Mr. Moss. I think there are certain areas in which the 
President does have unique authority, but I don't dispute that 
Congress also has authority respecting foreign affairs and 
national security. As Dr. Fisher mentioned, Congress has 
authority dealing with the regulation of foreign commerce.
    Chairman Shelby. You mentioned the Mink case, the 
Environmental Protection Agency versus Mink--I know you're 
familiar with it--but didn't the Supreme Court of the United 
States, in that case, confirm, quote, ``that classified or 
national security information is not insulated from 
Congressional control.'' In other words, it's not denied to us.
    Mr. Moss. I'm not familiar with that, Mr. Chairman, but I'd 
be happy to----
    Chairman Shelby. Review it.
    Mr. Moss [continuing]. Look into it and report back.
    Chairman Shelby. Would you get back with us on that?
    Mr. Moss. I would be happy to.
    Chairman Shelby. If the Constitution, Mr. Moss, does not 
explicitly grant the President exclusive authority to control 
classified information--I think you conceded that, at least I 
thought you did--and the Supreme Court recognizes our 
authorities in this area, why does the President argue that we 
may not act upon this particular subject?
    Mr. Moss. Well, I think the point is not that Congress 
lacks authority in this area. As I indicated earlier, Congress 
has adopted laws dealing with the treatment of classified 
information, namely in criminalizing certain disclosures of 
classified information. The point that I want to stress though, 
is that the President also has substantial authorities in this 
area in that if individual Executive branch employees are 
allowed to take it upon themselves to determine how, when, and 
under what circumstances information will be disclosed, it 
takes the President and his senior advisers out of the process.
    Chairman Shelby. I don't mean to be rude--that they would 
take it upon themselves what information would be disclosed. 
We're not talking about disclosed to the leading media people 
in town. We're not talking about disclosing to anybody on the 
street. We're talking about, as Senator Kerrey mentioned 
earlier, to disclose to Members of the Intelligence Committee 
in the Senate and the House who are dealing with classified 
information every day that we're here. Is that right, Senator 
Kerrey?
    Vice Chairman Kerrey. That's what the law says.
    Mr. Moss. Absolutely, Mr. Chairman, and again, it's my 
understanding that an enormous quantity of intelligence 
information is shared with these Committees. And what I am 
talking about is the rare, extraordinary circumstance in which 
the President might determine, for national security or foreign 
affairs reasons, that there is some need to limit the 
disclosure to determine how, when and under what circumstances 
that the information will be disclosed. And I note in that 
regard that Congress itself has recognized that need itself in 
certain circumstances. This National Security Act does permit 
limited disclosures of particularly sensitive, confidential 
information that may be--where there may be a vital national 
interest at stake.
    Chairman Shelby. So, Mr. Moss, are you saying that it is 
within our constitutional authority to pass legislation 
governing the handling of national security information between 
the branches of government?
    Mr. Moss. No, Mr. Chairman.
    Chairman Shelby. Well, okay. We have done some of that, 
have we not?
    Mr. Moss. Well, there certainly are laws that relate to the 
subject. I mean, for example----
    Chairman Shelby. Some of them that I've recited earlier.
    Mr. Moss. Yes, Mr. Chairman. For example, in addition to 
the laws dealing with the imposition of criminal sanctions, 
there are laws that require the Executive branch to share with 
Congress information, which presumably would be classified 
information. And again, I am thinking principally of the 
National Security Act.
    But in that context, and what distinguishes that context 
from this context, is that the information is shared through 
the normal process where the President or his senior advisers--
those individuals to whom hehas delegated authority--can make 
determinations regarding the national interest in how, when and under 
what circumstances the information is shared.
    Chairman Shelby. Senator Kerrey.
    Vice Chairman Kerrey. I am still--Mr. Moss, I must say, I 
am a little confused by your conclusions. I mean, you make it 
very clear. You say there is a critical constitutional flaw in 
Section 306 and that is because at best any--and you have added 
the word appropriately covered Federal employee having access 
to classified information with a unilateral right to circumvent 
the process which the Executive and Legislative branches 
accommodate each others interests in sensitive information.
    I hear the narrowly drawn argument, but again I don't--
given what this legislation is attempting to do and given 
especially the broad powers that the Legislative branch is 
given under Section 8, Article I of the Constitution, let me 
just ask both of you in simple terms. Let's say Congress passes 
this law this year, which I hope they do. And let's say, God 
forbid, the President vetoes it and we override the veto. Now, 
let's fast forward a couple of years. and some employee decides 
to bring information to Congress and the President decides to 
sue to prevent that employee from doing it and now it goes to 
the court.
    You know, given the Section 8, Article I powers that are 
granted to this Congress, I just ask both of you, do you think 
that the United States Supreme Court would rule that the law is 
a constitutional or unconstitutional?
    Dr. Fisher. Well, I would say that Congress is operating 
under the authority it has and the court would uphold the 
statute. and I think that relates to what Mr. Moss said about 
Justice Jackson and the concurrence in Youngstown. The 
Presidential power is particularly broad when Congress is 
silent or passive. I think we all agree that is a zone of 
twilight and if Congress doesn't do anything, the President has 
a lot of room to roam. But here Congress is stepping in and 
placing restrictions under the authority it has under the 
Constitution. I think the court would uphold it.
    Mr. Moss. I think that--and I would leave it to the 
litigators in the Department of Justice perhaps to more 
definitively resolve kind of a prediction of how the court 
would handle it. But my own sense is that the court would do 
one of two things. Either it would uphold the position of the 
Executive branch and conclude that the President does need to 
maintain at least the ability to determine how, when and under 
what circumstances the information is shared. Or the court 
would do what courts have done in this area as well, which is 
avoid the question. In the Garfinkel case, the court sent the 
decision back to the District Court vacating the decision as 
moot and said to the District Court, if you can avoid the 
constitutional question here, you should do so.
    The Court of Appeals for the District of Columbia Circuit 
tried valiantly to do the same thing in the AT&T case some 
years ago. And I think that, in part, the message that the 
court is sending in that context is that this is the sort of 
issue that the Executive and Legislative branches ought to work 
out between themselves. They ought to find some way to 
accommodate the fair interests and that there ought to be a 
continuation of the accommodation process whereby the 
President, whenever possible, shares information with Congress. 
And if the President and Congress have different views on 
whether particular information can be shared, they work it out.
    Vice Chairman Kerrey. And I would say in response to that, 
Mr. Moss--and I'll let Dr. Fisher respond as well--I have great 
respect for the argument. But, I mean, we are a nation of laws. 
And what we're talking about, establishing a legal protection 
for employees who bring information to authorized individuals 
on this Committee for the purpose of maintaining trust of the 
American people, and protecting their money and keeping them 
safe. My own view is that--and self-interest is no doubt 
driving me in this direction--that Dr. Fisher's opinion of what 
the Supreme Court would do if the President were to sue the 
prevent an employee from bringing information that couldn't be 
demonstrably proven, put the nation at absolute risk. I agree 
with you, there would be extraordinary circumstances. You're at 
war, for example. There'd be situations where the court is 
likely to hold in a President's favor in that narrow situation. 
But you can't put that--you can't describe the National 
Reconnaissance Office buildings or many other things that need 
to be delivered to this Committee that aren't going to get 
delivered if the law doesn't protect the employee and give that 
employee the right to do it.
    Dr. Fisher.
    Dr. Fisher. I wanted to comment on what Mr. Moss said about 
those cases, the AT&T cases. I don't think that--I think those 
arevery interesting, but I don't think they apply to the 
question you raised because those AT&T cases involved a dispute between 
a House Committee wanting information and the Justice Department 
wanting to deny that information. Judge Leventhal, through a series of 
cases, tried to work out an accommodation. And Mr. Moss is correct, 
they found an accommodation.
    But that's a situation where there was no law, where the 
two branches were contesting ground, and Judge Leventhal was 
trying to guide them to a solution. But you asked the question 
whether this law if it happened to be vetoed and overridden, 
would the court uphold it? Now we're talking about a law, and I 
think the court would uphold it.
    Chairman Shelby. Existing statutes. Section 413(b) of Title 
50 of the U.S. Code directs the President to, quote, ``ensure 
that any illegal intelligence activity is reported promptly to 
the Intelligence Committees.'' Section 13E states the 
following: ``Nothing in this Act shall be construed as 
authority to withhold information from the Intelligence 
Committees on the grounds that providing the information to the 
Intelligence Committees would constitute the unauthorized 
disclosure of classified information or information relating to 
intelligence sources or methods.''
    How is our proposed legislation, Mr. Moss, conceptually 
different from Section 413 of Title 50? Are you familiar with 
that?
    Mr. Moss. I am, Mr. Chairman.
    The conceptual difference between the two is that Section 
413(b) permits the information to flow to Congress through the 
President, or whatever senior adviser the President may choose 
to handle matters of that sort. It allows the Executive branch 
to determine how, when and under what circumstances the 
information would be shared. And it permits the Executive 
branch in an appropriate circumstance which, again, I would 
stress, I would imagine to be extraordinarily rare, but to 
assert a constitutionally based form of privilege, and not to 
provide the information based on some constitutionally based 
privilege.
    In that respect, I don't know that President Bush was 
referring specifically to Section 413(b), but he did make clear 
his view that nothing in the National Security Act would trump 
the President's authority to determine the circumstances in 
which classified information was shared with Congress.
    Chairman Shelby. Last year there was some discussion among 
my colleagues in the House on whether employees within the 
Intelligence Community could already bring information to the 
Committee, that is, to the Intelligence Committee under Section 
413(e) of Title 50, and avoid, Mr. Moss, being accused of an 
unauthorized disclosure.
    None of us are interested in unauthorized disclosures. You 
know what we're after. We're after a safe harbor, a way to have 
people that know about corruption, know about wrongdoing, to 
come to the Intelligence Committees if it's in a classified 
area, to disclose that to us on the Committee--anybody. You 
understand that?
    Mr. Moss. I do understand.
    Chairman Shelby. You want to answer the question on that? I 
said that they could already bring information to the 
Committee. You know, there was some discussion. I don't know if 
they could do that or not, but some of the people in the House 
thought they could. Section 413 seemed to be very clear on this 
issue. In fact, Executive Order 12333 directs Executive agency 
heads engaged in intelligence activities to cooperate with 
Congress in accordance with Section 413, Title 50, that I just 
cited of the U.S. Code.
    I understand, however, that the Administration interprets 
the term withhold--a very important term--withhold to mean that 
they may not withhold information specifically requested by a 
Committee with proper jurisdiction--dealing with intelligence, 
for example. In other words, if we don't ask for it, it's not 
being withheld. Is that right?
    Mr. Moss. I don't know. I'm not familiar with the history 
that you've discussed.
    Chairman Shelby. Okay. So you're not familiar with the 
Administration's interpretation of Section 413(e) then, is that 
correct?
    Mr. Moss. Well, as I sit here now, I don't recall whether 
the Section 413(e) was expressly addressed in the opinion that 
the Office of Legal Counsel prepared on a related issue a 
little over a year ago. But the theory of that opinion was that 
in light of the constitutional concerns in this area, that 
existing statutes had to be construed in a fashion which was 
consistent with the President's constitutional authority to 
control how, when, under what circumstances classified 
information is shared.
    Chairman Shelby. You seem to imply that the President's 
authority, Executives's authority, to withhold information is 
not absolute, but may be, perhaps, a matter of timing.
    Mr. Moss. Well, I think that the authority is absolute to 
the extent that it is consistent with legitimate foreign 
affairs or national security interests. I think that----
    Chairman Shelby. Excuse me a minute. How can it be absolute 
in view of some of these other statutes that have been upheld 
that we've been talking about?
    Mr. Moss. Well. I don't think a statute has ever been 
upheld holding--which provided that the President--that the 
President may not control the access, providing of information 
to Congress.
    Chairman Shelby. Senator Kerrey.
    Vice Chairman Kerrey. Done. Thank you.
    Chairman Shelby. We have a number of questions we'd like to 
submit to both of you for the record, and other Members that 
are in other Committees. But we appreciate your attendance 
today. We appreciate your suggestions and your concerns, but 
we're going to push this legislation because we believe it's in 
the best interests of the American people
    Thank you, both.
    Mr. Moss. Thank you, Mr. Chairman.
    Dr. Fisher. Thank you, Mr. Chairman.
    [Thereupon, at 11:40 a.m., the hearing was concluded.]