[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
DROWNING IN A SEA OF FAUX SECRETS: POLICIES ON HANDLING OF CLASSIFIED
AND SENSITIVE INFORMATION
=======================================================================
HEARING
before the
SUBCOMMITTEE ON NATIONAL SECURITY,
EMERGING THREATS, AND INTERNATIONAL
RELATIONS
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
MARCH 14, 2006
__________
Serial No. 109-167
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.house.gov/reform
_____
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2006
29-385 PDF
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California
CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California LINDA T. SANCHEZ, California
JON C. PORTER, Nevada C.A. DUTCH RUPPERSBERGER, Maryland
KENNY MARCHANT, Texas BRIAN HIGGINS, New York
LYNN A. WESTMORELAND, Georgia ELEANOR HOLMES NORTON, District of
PATRICK T. McHENRY, North Carolina Columbia
CHARLES W. DENT, Pennsylvania ------
VIRGINIA FOXX, North Carolina BERNARD SANDERS, Vermont
JEAN SCHMIDT, Ohio (Independent)
------ ------
David Marin, Staff Director
Teresa Austin, Chief Clerk
Phil Barnett, Minority Chief of Staff/Chief Counsel
Subcommittee on National Security, Emerging Threats, and International
Relations
CHRISTOPHER SHAYS, Connecticut, Chairman
KENNY MARCHANT, Texas DENNIS J. KUCINICH, Ohio
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida BERNARD SANDERS, Vermont
JOHN M. McHUGH, New York CAROLYN B. MALONEY, New York
STEVEN C. LaTOURETTE, Ohio CHRIS VAN HOLLEN, Maryland
TODD RUSSELL PLATTS, Pennsylvania LINDA T. SANCHEZ, California
JOHN J. DUNCAN, Jr., Tennessee C.A. DUTCH RUPPERSBERGER, Maryland
MICHAEL R. TURNER, Ohio STEPHEN F. LYNCH, Massachusetts
JON C. PORTER, Nevada BRIAN HIGGINS, New York
CHARLES W. DENT, Pennsylvania
Ex Officio
TOM DAVIS, Virginia HENRY A. WAXMAN, California
Lawrence J. Halloran, Staff Director and Counsel
J. Vincent Chase, Chief Investigator
Robert A. Briggs, Clerk
Anna Laitin, Minority Professional Staff Member
C O N T E N T S
----------
Page
Hearing held on March 14, 2006................................... 1
Statement of:
Blanton, Thomas S., director, National Security Archive,
George Washington University, Washington, DC; Anna K.
Nelson, distinguished historian in residence, American
University, Washington, DC; and Matthew M. Aid, Washington,
DC......................................................... 301
Aid, Matthew M........................................... 332
Blanton, Thomas S........................................ 301
Nelson, Anna K........................................... 324
Weinstein, Allen, Archivist of the United States, National
Archives and Records Administration; J. William Leonard,
Director, Information Security Oversight Office, National
Archives and Records Administration; Davi M. D'Agostino,
Director, Defense Capabilities and Management, U.S.
Government Accountability Office; Robert Rogalski, Acting
Deputy Under Secretary of Defense, Counterintelligence and
Security, U.S. Department of Defense; and Glenn S.
Podonsky, Director, Office of Security and Safety
Performance Assurance, U.S. Department of Energy........... 231
D'Agostino, Davi M....................................... 243
Leonard, J. William...................................... 238
Podonsky, Glenn S........................................ 271
Rogalski, Robert......................................... 257
Weinstein, Allen......................................... 231
Letters, statements, etc., submitted for the record by:
Aid, Matthew M., Washington, DC, prepared statement of....... 334
Blanton, Thomas S., director, National Security Archive,
George Washington University, Washington, DC, prepared
statement of............................................... 305
D'Agostino, Davi M., Director, Defense Capabilities and
Management, U.S. Government Accountability Office, prepared
statement of............................................... 245
Kucinich, Hon. Dennis J., a Representative in Congress from
the State of Ohio, prepared statement of................... 17
Leonard, J. William, Director, Information Security Oversight
Office, National Archives and Records Administration,
prepared statement of...................................... 240
Maloney, Hon. Carolyn B., a Representative in Congress from
the State of New York, prepared statement of............... 163
Nelson, Anna K., distinguished historian in residence,
American University, Washington, DC, prepared statement of. 327
Platts, Hon. Todd Russell, a Representative in Congress from
the State of Pennsylvania, prepared statement of........... 350
Podonsky, Glenn S., Director, Office of Security and Safety
Performance Assurance, U.S. Department of Energy, prepared
statement of............................................... 272
Rogalski, Robert, Acting Deputy Under Secretary of Defense,
Counterintelligence and Security, U.S. Department of
Defense, prepared statement of............................. 259
Shays, Hon. Christopher, a Representative in Congress from
the State of Connecticut:
Prepared statement of.................................... 6
Various reports and letters..............................3, 168
Waxman, Hon. Henry A., a Representative in Congress from the
State of California, prepared statement of................. 10
Weinstein, Allen, Archivist of the United States, National
Archives and Records Administration, prepared statement of. 234
DROWNING IN A SEA OF FAUX SECRETS: POLICIES ON HANDLING OF CLASSIFIED
AND SENSITIVE INFORMATION
----------
TUESDAY, MARCH 14, 2006
House of Representatives,
Subcommittee on National Security, Emerging
Threats, and International Relations,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:04 p.m., in
room 2154, Rayburn House Office Building, Hon. Christopher
Shays (chairman of the subcommittee) presiding.
Present: Representatives Shays, Kucinich, Maloney, Van
Hollen, and Waxman.
Staff present: Lawrence Halloran, staff director and
counsel; J. Vincent Chase, chief investigator; Robert A.
Briggs, analyst; Marc LaRoche, intern; Karen Lightfoot,
minority communications director/senior policy advisor; David
Rapallo, minority chief investigative counsel; Anna Laitin and
Andrew Su, minority professional staff members; Earley Green,
minority chief clerk; and Jean Gosa, minority assistant clerk.
Mr. Shays. A quorum being present, the Subcommittee on
National Security, Emerging Threats, and International
Relations hearing entitled, ``Drowning in a Sea of Faux
Secrets: Policies on Handling of Classified and Sensitive
Information,'' is called to order.
It has been said, bureaucracies always seek the path of
least disclosure. During the cold war, the innate tendency to
excessive secrecy was useful against the monolithic threat of
Soviet military and industrial espionage. But today, against
the polymorphic perils of stateless terrorism, the reflexive
concealment of broad categories of official information harms
more than enhances national security. Unreformed habits of
secrecy blind us to the dispersed shards of information that,
if linked, could reveal the enemy's shadowy plans.
Recent reports of a secret program to reclassify previously
declassified documents reflect the stubborn refusal of many
cold warriors to move from the ``need to know'' to the ``need
to share'' security paradigm. Operating since 1999, the program
culled materials from public archives that had already been
viewed, copied, or republished. Claiming the bureaucratic
``equities,'' code for ``turf,'' had been ignored in the rush
to declassify, the reclassifiers have taken tens of thousands
of pages from the open files in what I would refer to as an
arrogant and futile attempt to unwrite history. Many of the
documents deal with issues having no current security
implications. As a result, obvious non-secrets, like the
stunning wrong estimate in 1950 that the Chinese would not
enter the Korean War, are once again stamped ``secret.''
This absurd effort to put the toothpaste back into the tube
persists, despite the growing consensus supported by testimony
before this subcommittee that from 50 to 90 percent of the
material currently withheld should not be classified at all.
The inbred penchant for over-classification has also
spawned a perverse offspring in the form of a vast and rapidly
growing body of pseudo-secrets withheld from public view in the
name of national and homeland security.
As this subcommittee learned in two previous hearings on
post-September 11th barriers to information sharing, what is
not classified can still be kept from the public through the
use of ``Sensitive But Unclassified,'' designated as SBU,
designations, like, for instance, ``For Official Use Only,''
[FOUO], or ``Official Use Only,'' [OUO], and there are
countless others. The unchecked proliferation of documents
bearing these and other access restriction labels is choking
what the 9/11 Commission said should be, must be free-flowing
pathways for critical information about an adaptable,
decentralized foe.
After our hearing last year, Mr. Waxman and I asked key
cabinet departments how many documents they had shielded with
SBU markings over the past 4 years. Claiming the task so
burdensome and the numbers so large, they could not even
venture an estimate.
At the same time, we asked the Government Accountability
Office [GAO], to examine policies and procedures on FOUO and
OUO documents at the Department of Defense and Energy,
respectively. Stamping something ``For Official Use Only''
should only mean someone has determined the information may
meet the limited criteria for exemption from automatic public
release under the Freedom of Information Act [FOIA]. But
increasingly in this security-conscious era, SBU designations
are being misused as an unregulated form of ``classification
light.''
I am going to digress a second. A case in point: The report
from the Department of Homeland Security Inspector General
bears this ominous-looking green cover warning recipients the
document is ``For Official Use Only.'' The report is an audit
of screening done on trucks carrying municipal solid waste from
Canada into the United States. It is 18 pages long. The IG was
good enough to send along an unclassified summary of what is
really an already unclassified FOUO report. This is the
summary. It is one page. So our conclusion is apparently there
is a great deal the public should never know about Canadian
garbage. Can you believe it?
[The information referred to follows:]
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Mr. Shays. In a report released today, GAO finds a lack of
clear standards governing the use of the FOUO and OUO labels.
Almost anyone can apply the ``Official Use Only'' restriction
and no one can make it go away unless someone happens to
request the document under the FOIA, but then they have to know
the document exists.
Against a rising tide of global terrorism, we are drowning
in a sea of our own faux secrets, hiding public information
from its real owners, the public, behind spurious FOUO and OUO
labels. To right the balance between the public's right to know
and countervailing public interest in security and privacy, the
habits of secrecy must give way to the culture of shared
information.
Our discussion today is timely. This is, and I kid you not,
Sunshine Week 2006, the second annual observance by
organizations and individuals seeking greater openness in
government. At the same time, policies and procedures on
classification, reclassification, and designation of sensitive
but unclassified material appear to be rushing headlong in the
opposite direction.
We are joined by two panels of highly qualified and
knowledgeable witnesses, including the Archivist of the United
States. We welcome him. We look forward to all their testimony
and to a constructive discussion of what can be done to sustain
and enhance the public's access to their information.
[The prepared statement of Hon. Christopher Shays follows:]
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Mr. Shays. At this time, the chair would acknowledge we
have both the ranking member of the full committee and the
ranking member of the subcommittee and I would call on the
ranking member of the subcommittee if he has a statement.
Mr. Kucinich. I do have a statement, but I would more than
be willing to defer to the ranking member of our full
committee. Please, Mr. Waxman.
Mr. Waxman. Well, thank you very much, Mr. Kucinich and Mr.
Chairman, for the opportunity to make this opening statement.
As Mr. Shays indicated, this week is openness and transparency
for government because it is called Sunshine Week. These are
the bedrock principles of our democracy.
Unfortunately, sunshine rarely penetrates the inside of the
Bush administration. They have a penchant for secrecy. It is
legendary and the examples are numerous. The Vice President
refused to reveal which campaign contributors and energy
executives had special access to his energy task force. The
President rolled back Reagan-era regulations on the release of
Presidential records. The Department of Health and Human
Services withheld estimates of the true cost of the Medicare
prescription drug legislation. And the Defense Department
redacted hundreds of Halliburton overcharges from audits given
to the United Nations.
This is not a new issue. In September 2004, I released a
comprehensive report on secrecy in the Bush administration. The
report found that the Nation's open government laws had been
repeatedly eroded during the first 4 years of the Bush
administration, while laws authorizing secret government action
had been systematically expanded. These trends have continued
and worsened in the months since I released that report.
Last month, researchers discovered that the administration
had been secretly removing thousands of previously classified
documents that had been publicly available on the shelves of
the National Archives. Some of these documents were more than
50 years old and already had been published in books and
journals.
According to these researchers, one of the documents is a
1948 memorandum regarding delays in implementing Project
Ultimate, a CIA program to drop propaganda leaflets out of hot
air balloons to the citizens of Eastern Europe, and this memo
was published already in a 1996 State Department volume. Yet
incredibly, this 58-year-old document has now been removed from
the shelves, according to the researchers.
There are a lot of questions about the administration's
actions to which we don't have the answers. Who oversees this
program? Under what legal authority are they operating? And why
is the order governing this program evidently still classified?
I hope we can begin to get answers to these questions at
today's hearing.
Another important issue we will consider today is the
administration's abuse of designations such as ``Sensitive But
Unclassified'' to block the public release of government
information. Many of these designations have no basis in
statute, no criteria for use, no limitations on who can
withhold documents using these designations.
Last year, Chairman Shays and I sought documents from three
agencies, the Defense Department, State Department, and the
Department of Homeland Security, that had been restricted as
``Sensitive But Unclassified'' or ``For Official Use Only.'' To
date, we have received none of these documents.
It is particularly telling that in their responses, the
agencies claimed they had no way to provide such information
because they don't keep track of it. As another agency wrote,
there is no regulatory or other national policy governing the
use of ``For Official Use Only,'' this designation, as opposed
to the controls on classified national security information.
A year ago, I wrote to Chairman Shays about the abuses of
these pseudo- or faux classifications. My letter described
specific examples where documents were restricted from public
dissemination because they would be embarrassing, not because
they would jeopardize national security.
Today, we are going to hear from the GAO about the results
of its investigation into the management of these types of
documents by two agencies, the Department of Energy and the
Department of Defense. As GAO will testify, neither of these
departments have clear policies regarding the designations and
neither has adequate oversight of their use.
Mr. Chairman, I have criticized the administration for its
secrecy. I have even criticized the Republican Congress for
failing to conduct meaningful oversight of the Bush
administration. I think that has become a failure to do our
constitutional responsibilities. It undermines accountability
and it creates a climate in which secrecy flourishes. I think
this is a hearing that is very much worth holding and I commend
the chairman for calling the hearing. It won't undo the
consequences of years of neglect, but I think it is an
important step in the right direction and it illustrates how
far things have gone, to the point now where it is so absurd
that we can no longer ignore this business of classifying,
reclassifying, declassifying, re-reclassifying, playing games
with classifications, not for national security but simply to
keep everybody in the dark, not just the enemies, but our own
citizens and people in government itself.
So I commend you for holding this hearing and I am pleased
that we are going to hear from these witnesses scheduled today
who can maybe bring a greater light to the dark spot in the
whole issue of openness in government and sunshine. Thank you.
Mr. Shays. I thank the gentleman.
[The prepared statement of Hon. Henry A. Waxman follows:]
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Mr. Shays. At this time, the chair would recognize Mr.
Kucinich, the ranking member of the committee.
Mr. Kucinich. Thank you very much, Mr. Chairman. I might
note to my good friend, Mr. Waxman, you just mentioned that
they reclassified that information about dropping propaganda
out of hot air balloons. I think the reason why they
reclassified it is that they are still doing it here in
Washington. [Laughter.]
I want to thank the chairman for holding the third
subcommittee hearing on this important oversight issue, and I
want to note that this hearing is being held during what
American newspaper editors have declared as National Sunshine
Week, but it may be that the administration's song will be,
``The Sun Will Come Out Tomorrow,'' not today, so it is
imperative that Congress exercises its oversight responsibility
and that we hold Federal agencies accountable for the millions
of classification and declassification decisions they exercise
every day.
The results of our review can be measured through a variety
of statistics, but in the end, we must ask two fundamental
questions. First, do we still have an open government? And
second, are we safer as a result of these classification
decisions? I think the answer to both questions is no.
By any measure, the administration has been classifying
documents at a dizzying pace. Under this administration, more
agencies have been given authority to classify documents and
over 50 new security designations, including ``Sensitive But
Unclassified'' and ``For Official Use Only'' have been created.
Over 4,000 Federal employees now have original classification
authority, and nearly $8 billion a year is spent to classify
documents, $8 billion. Meanwhile, declassification has slowed
to a crawl.
But we must also look at what kind of information this
administration is classifying. Is it sensitive, a threat to our
national security if released to the public? According to
researcher Matthew Aid, thousands of documents from the cold
war era have been increasingly removed from the National
Archives over the past 7 years and subsequently reclassified.
Much of this trove consists of innocuous historical information
from the cold war era and is being kept from the public's view.
According to the Washington Post, even documents about the
Cuban missile crisis, one of the most important events in our
Nation's history, are still being denied to historians. It is
well past the 25-year limit in which most Federal documents
have to be declassified.
Declassification is an essential tool to watchdog the
actions of our government. For example, documents declassified
just last year concern Luis Posada Carriles, a CIA operative
involved in the 1976 bombing of a Cubana Airlines flight that
killed 73 passengers. They show the complicity and support our
government gave to his violent acts. After escaping from a
Venezuelan prison in 1985, Posada worked in El Salvador on the
Iran-Contra program and he admitted to a string of hotel
bombings in Havana and various assassination attempts of Fidel
Castro.
Last year, Mr. Posada snuck into the United States and is
attempting to seek asylum here. Despite requests from both
Venezuela and Cuba to extradite him, the Department of Homeland
Security has refused to deport him. In effect, the Bush
administration--the Bush administration--is harboring an
international terrorist, and documents released by the National
Security Archives show the full extent of CIA involvement in
those operations.
If this is how the administration treats so-called
historical information, how do you think they treat materials
that could inform public policy debates today or protect our
Nation against terrorist threats? That is one of the reasons,
Mr. Chairman, why I introduced a resolution of inquiry on the
Dubai port deal. We want to know how it came about. Maybe the
deal is dead, maybe it is not, but the public has a right to
know how it came about in the first place and the only way you
can do that is to get the public records.
In April 2004, only 1 day before Secretary Rice was forced
to testify before the 9/11 Commission, the administration
suddenly declassified a key memo from former Counterterrorism
Chief Richard Clarke to Secretary Rice warning her about the al
Qaeda threat and calling for a meeting of principal security
heads. Mr. Clarke's memo had been written in January 2001, more
than 9 months before the tragic attacks.
Let me give you another example. Last week, the Department
of Justice released e-mails from David Kris, an Associate
Deputy Attorney General with the knowledge of the
administration's justifications for its domestic wiretapping
program. Mr. Kris argues that the Department's arguments were
weak, had a slightly after-the-fact quality to them, and even
surmised that they reflected the Vice President's philosophy
that the best defense is a good offense. Yet only following a
Federal court order and a Freedom of Information lawsuit did
the Justice Department search for and release unclassified
documents that relate to justification of the eavesdropping
program, and after 2\1/2\ months of searching, the Justice
Department said it found only some e-mails and transcripts of
public interviews with the Attorney General. The rest of the
material apparently still remains classified.
Finally, a March 3rd Wall Street Journal editorial
entitled, ``Open the Iraq Files'' highlights the fact that
there are millions of documents captured in Iraq and
Afghanistan, collectively referred to as the Harmony Program,
which have now been classified. The Harmony Program supposedly
contains information about Saddam Hussein's so-called weapons
programs, about the Niger uranium connection, and even about
Iraq's support of a terrorism program and lists of potential
terrorists threats. These documents would undoubtedly better
inform the American public and elected officials as we continue
to debate our foreign policy in those parts of the world, yet
you can bet they won't see any light of day anytime soon.
So our Nation is neither safer nor more open. We spend more
and more each year to classify documents and declassify fewer
and fewer Federal records. Moreover, the Government
Accountability Office has told the Congress, and what
journalists and historians report to us, is that implementation
of classification policy is inconsistent. Training in
classification procedures and Freedom of Information policies
differ across Federal agencies. Review of classification
decisions, supervision of officials, and cross-agency
communication are sparse, at best.
Mr. Chairman, we need to take another look at the laws and
regulations that guide classification policies. I believe the
current system is out of control. I hope we can work together
in a bipartisan manner to reverse the momentum that we lost.
Let us make sure sunshine is present throughout the Federal
Government, not just for 1 week, but that it shines forth each
and every day.
Thank you, and I want to welcome the witnesses, and I have,
without objection, various documents that I want to submit into
the record.
Mr. Shays. I thank the gentleman.
[The prepared statement of Hon. Dennis J. Kucinich
follows:]
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Mr. Shays. At this time, the chair would recognize Mr. Van
Hollen.
Mr. Van Hollen. Thank you, Mr. Chairman. I want to thank
you and Mr. Kucinich for holding these hearings and thank the
witnesses for being here.
The latest episodes we have seen of the administration
scrambling to reclassify information that had been declassified
is just the latest sign of an obsession with secrecy over the
public interest. I think it is amazing now that an individual
working for the government could be criminally liable for
providing to a Member of Congress in an unclassified setting a
document that had been published by the U.S. Government. That
turn of events, it seems to me, shows how we have our policies
just turned on their head.
I would just like to very briefly read from the 9/11
Commission, which was a bipartisan commission that identified
this over-classification problem as a national security
problem, where they stated that the security concerns need to
be weighed against the cost. ``Current security requirements
nurture over-classification and excessive compartmentalization
of information among agencies. Each agency's incentive
structure opposes sharing, with risks but few rewards for
sharing information. No one has to pay the long-term costs of
over-classifying information, though these costs, even in
literal financial terms, are substantial.'' There are no
punishments for not sharing information, and they go on to talk
about this issue.
It seems to me that from a pure national security
perspective, in this day and age where we learned from over-
compartmentalization before September 11th the dangers to our
national security of people not talking to each other, we
should learn the lessons of more sharing of information.
Instead, what we have seen is an effort to use the
classification system not to hide information from our enemies,
but in many cases, to hide embarrassing analyses and facts from
the Congress and the American people.
So I hope, Mr. Chairman, that we will continue to explore
this area. The other thing that, of course, I think, rankles
many people is not just the classification process, but the
random ad hoc declassification process, where all of a sudden
you read that the administration has released classified
information selectively for their own political benefit. I
mean, we read now in the Valerie Plame case, oh, yes, well,
they were able to leak classified information to the press.
Why? Because the Vice President has the ability to declassify
whenever he decides to declassify something. That breeds
cynicism in the system and public distrust. If we think that
the administration or any executive branch agency is playing
politics with the release of classified information, is playing
politics with the classification of information, it will
undermine the public's trust in our entire system and breed
increasing cynicism, and I think that is what we are seeing,
Mr. Chairman.
So hopefully, we can begin to shine a little sunshine on
this and reverse that cynicism. Thank you.
Mr. Shays. I thank the gentleman.
At this time, the chair would recognize the gentlelady from
New York, Mrs. Maloney.
Mrs. Maloney. Again, I want to thank the Subcommittee on
National Security for their continued work on really sensitive
issues of our country. I want to cite the chairman's efforts on
the creation of the 9/11 Commission report and then working
with me and many others to author the recommendations into law
and to finally pass it.
We all understand that classification is necessary.
Maintaining access to sensitive information helps ensure the
safety of all Americans. No one can argue that. However, over
the last few years, a number of us have become very concerned
with the dramatic surge in what is being classified and the
advent of new pseudo-classifications of information.
At the last hearing the subcommittee held on the subject, I
held up a poster of a redacted copy of a staff report from the
9/11 Commission. Black ink was practically poured over the
whole document. What was amazing about the redactions on this
poster were that they clearly covered up public testimony that
was available on the Internet. Holding them side to side, we
found one redacted line that read, literally--you can't make
this stuff up--this was the line: ``This, this, this, and
this.'' That was redacted. It was more bad English than
sensitive information, and that is our concern here.
There is a huge upswing in classified information, a result
of more information that needs to be classified or is it just
really more convenient to keep it classified? Is information
kept classified because it is embarrassing? That is another
concern. Or inconvenient?
We know that under an Executive order signed by President
Clinton, we were able to declassify 864 million documents, but
another Executive order by the Bush administration has halted
these efforts by allowing officials to classify information
even when there is significant doubt that this information
needs to be classified.
I know that I have had to fight for the release of
information held by government. I had a bill in on the Nazi War
Crimes Disclosure Act. It has been years since World War II. It
became law in 1998 and we really disclosed more information
than we have had since the Nuremberg trials, and this was
important for us to understand many things, not only our
history but now to address informers and security matters in
today's troubled times.
I am very concerned about the uniformity, the point that my
colleague made that some ridiculous items are classified and
then some information that may help a political cause, such as
the Valerie Plame case, is released.
I also am concerned about that there is no review. Say you
get a document back, like the 9/11 Commission report that was
all redacted. How do we appeal to see if this is really, truly
something that should be redacted or not? There is no appeal
process. I think that the right of citizens to have access to
their government files when this is appropriate helps build
strength and support for our democracy.
So I want to thank Chairman Shays for holding this hearing
and really for his continued work on it. I think it is
important. I think it is an important part of our government
and I think it does need to be reviewed. I find it
infuriating--can I add this? I have constituents who come to me
and they have tried to get documents from the EPA or whatever.
The document comes back completely redacted. I mean, what kind
of response is that? Who do they appeal when it concerns their
family farm or their family business? I think this is a serious
matter and I appreciate the chairman looking at it.
Mr. Shays. I thank the gentlelady from New York.
[The prepared statement of Hon. Carolyn B. Maloney
follows:]
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Mr. Shays. Let me just take care of a few business items
before we swear you in, and thank you all for your patience.
I ask unanimous consent that all members of the
subcommittee be permitted to place an opening statement in the
record and the record remain open for 3 days for that purpose.
Without objection, so ordered.
I ask further unanimous consent that all witnesses be
permitted to include their written statements in the record,
and without objection, so ordered.
I ask even further unanimous consent that the following be
made part of the record: A GAO report titled ``Managing
Sensitive Information: Departments of Energy and Defense
Policies and Oversight Could Be Improved;'' George Washington
University National Security Archive report, ``Pseudo Secrets:
Freedom of Information Audit of Sensitive But Unclassified
(SBU) Policies in the U.S. Government;'' a letter from Senator
Jim Bunning Concerning the improvement of storage of classified
information by defense contractors; and finally, a letter from
Mr. Lamar Waldron from Marietta, Georgia, concerning the
reclassification of government records. Without objection, the
reports and correspondence will be made part of the record.
[Note.--The GAO report entitled, ``Managing Sensitive
Information, Departments of Energy and Defense Policies and
Oversight Could be Improved,'' may be found in subcommittee
files.]
[The information referred to follows:]
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Mr. Shays. We have two panels today and I will introduce
the first panel. We have Professor Allen Weinstein, Archivist
of the United States, National Archives and Records
Administration; Mr. J. William Leonard, Director, Information
Security Oversight Office, National Archives and Records
Administration; Ms. Davi M. D'Agostino, Director, Defense
Capabilities and Management, U.S. Government Accountability
Office; Mr. Robert Rogalski, Acting Deputy Under Secretary of
Defense, Counterintelligence and Security, Department of
Defense; and Mr. Glenn S. Podonsky, Director, Office of
Security and Safety Performance Assurance, U.S. Department of
Energy. If all of you would stand, I will swear you in as is
our practice.
Raise your right hands.
[Witnesses sworn.]
Mr. Shays. For the record, all the witnesses have responded
in the affirmative. We again thank you for your patience in
hearing our perspectives. It hopefully will help you sense
where we are coming from and the kinds of points that you need
to make.
As you know, we have a 5-minute rule, but I roll over the
clock if you go over. I just don't want you to think you have
to stop right at 5, but as close to 5 as you can will be
appreciated, and we will start with you, Professor.
STATEMENTS OF ALLEN WEINSTEIN, ARCHIVIST OF THE UNITED STATES,
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION; J. WILLIAM
LEONARD, DIRECTOR, INFORMATION SECURITY OVERSIGHT OFFICE,
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION; DAVI M.
D'AGOSTINO, DIRECTOR, DEFENSE CAPABILITIES AND MANAGEMENT, U.S.
GOVERNMENT ACCOUNTABILITY OFFICE; ROBERT ROGALSKI, ACTING
DEPUTY UNDER SECRETARY OF DEFENSE, COUNTERINTELLIGENCE AND
SECURITY, U.S. DEPARTMENT OF DEFENSE; AND GLENN S. PODONSKY,
DIRECTOR, OFFICE OF SECURITY AND SAFETY PERFORMANCE ASSURANCE,
U.S. DEPARTMENT OF ENERGY
STATEMENT OF ALLEN WEINSTEIN
Mr. Weinstein. Chairman Shays, Mr. Van Hollen, members of
the subcommittee, I wish to thank you for holding this very
important hearing today on issues relating to information
access restrictions and for inviting me to testify. I am
especially pleased to be joined this afternoon as a witness
before the subcommittee by my able colleague, Bill Leonard, who
heads the Information Security Oversight Office [ISOO], an
office within the National Archives and Records Administration.
Mr. Chairman, I appreciate the opportunity for Mr. Leonard and
myself to share with you and other members of the subcommittee
NARA's response to the situation which we have confronted in
the past several weeks.
In late February, in response to complaints received from a
group of historians and researchers regarding agency
classification activity which has resulted in a number of
historical documents being withdrawn from the open shelves at
the National Archives and Records Administration, I began
several actions as part of a review of the reclassification of
documents.
Weeks ago, the Information Security Oversight Office
[ISOO], initiated an audit to identify the number of records
withdrawn from the open shelves over the past several years, to
identify who initiated the withdrawal action, and to identify
the authorization and justification for the withdrawal. The
audit involves consultation with both affected agencies and
with members of the research community. The audit will result
in a public report designed to provide the greatest feasible
degree of transparency to this classification activity, and the
audit will be available within the next 60 days.
ISOO will issue annual updates providing insight into any
similar activity conducted in the future, and these updates
will be included in ISOO's annual report to the President on
implementing Executive Order 12958, as amended.
Mr. Chairman, these immediate steps on my part were
followed by consultations with concerned researchers, after
which I announced additional actions as part of the ongoing
investigation into the withdrawal of previously declassified
records at the Archives. These steps included the imposition of
a moratorium on other agency personnel identifying for
withdrawal for classification purposes any--I stress any--
declassified records currently on the public shelves at the
National Archives until our audit is complete.
I also called for a summit with national security agencies
involved with these withdrawal efforts. At the summit with
Federal agency officials on March 6th, I stressed the
commitment of the National Archives to maintain a balanced
approach by acknowledging the importance of protecting national
security while at the same time recognizing the public interest
in having archival records maximally available. I stressed the
commitment of the National Archives to continue to work
cooperatively with the agencies while urging the agencies to
move swiftly on returning documents back to the open shelves
when appropriate. I stressed also the need to consider creating
a National Declassification Initiative to replace the current
agency-centered approach to declassification. This new
initiative, the Centralized Declassification Program, would be
coordinated by the National Archives.
Representatives of the Federal agencies who attended this
summit unanimously agreed to support the moratorium on
identifying for withdrawal any new material currently on the
open shelves at the Archives. They were also supportive in
principle of the concept of the National Declassification
Initiative.
Mr. Chairman and members of the subcommittee, Bill Leonard
will provide further details concerning NARA's and specifically
ISOO's response to the challenges of implementing our recent
directives and proposals.
As the Archivist of the United States, however, I am here
today to bear witness to the seriousness with which the
National Archives treats its responsibilities in this area. At
the National Archives, the core goals of our mission statement
commit us to preserving and processing records for opening to
the public as soon as legally possible and providing prompt,
easy, and secure access to our holdings.
Mr. Chairman, members of the subcommittee, I place an
extremely high value on maintaining public credibility, trust,
and respect for the process of classification and the process
of declassification, respect which is earned by responsible
stewardship, including efforts to ensure that no information--I
stress, no information--is withheld unnecessarily.
Thank you, Mr. Chairman and members of the subcommittee,
for your time and attention.
Mr. Shays. Thank you, and let me take this opportunity to
thank you for all of your good work.
Mr. Weinstein. Thank you.
Mr. Shays. Thank you, sir.
[The prepared statement of Mr. Weinstein follows:]
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Mr. Shays. Mr. Leonard.
STATEMENT OF J. WILLIAM LEONARD
Mr. Leonard. Thank you, Mr. Chairman, Mr. Waxman, Mr. Van
Hollen, other members of the subcommittee. I want to thank you
for holding this hearing this afternoon on issues relating to
information access restrictions as well as for inviting me to
testify today.
The classification system and its ability to restrict the
dissemination of information, the unauthorized disclosure of
which would cause harm to our Nation, its citizens, and our
institutions, represent the fundamental tool at the
government's disposal to provide for the common defense. The
ability to surprise and deceive the enemy can spell the
difference between success and failure on the battlefield.
Similarly, it is nearly impossible for our intelligence
services to recruit human sources, who often risk their lives
aiding our country, which obtain assistance from other
countries' intelligence services, unless such sources can be
assured complete and total confidentiality. Likewise, certain
intelligence methods can work only if the adversary is unaware
of their existence. Finally, the successful discourse between
nations often depends upon constructive ambiguity and plausible
deniability as the only way to balance competing and divergent
national interests.
As with any tool, the classification system is subject to
misuse and misapplication. When information is improperly
declassified or is not classified in the first place, although
clearly warranted, our citizens, our democratic institutions,
our homeland security, our interactions with foreign nations
can be subject to potential harm. Conversely, too much
classification, or the failure to declassify information as
soon as it no longer satisfies the standards for continued
classification, or inappropriate reclassification,
unnecessarily obstructs effective information sharing and
impedes an informed citizenry, the hallmark of our democratic
form of government.
In the final analysis, inappropriate classification
activity of any nature undermines the integrity of the entire
process and diminishes the effectiveness of this critical
national security tool. Consequently, inappropriate
classification or declassification puts today's most sensitive
secrets at needless increased risk.
Recent attention focused on withdrawal of previously
declassified records from the open shelves of the National
Archives exemplifies how the classification system can be
misapplied. While an audit of this activity by my office is
still underway and I do not want to presuppose final results,
at this time, we see the need to address a number of issues
that I have outlined in detail in my written statement.
In response to these challenges, I am pleased to report
that the principal agencies involved in conducting
classification reviews of records accessioned into the National
Archives have agreed in principle to create a pilot National
Declassification Initiative with the objective of more
effectively integrating the work they are doing in this area.
This initiative is intended to address the policies,
procedures, structure, and resources needed to create a more
reliable executive branch-wide declassification program. While
the details of this proposal need to be further developed and
implemented during the weeks and months to come, I do
anticipate significant progress in this area.
As Director of ISOO, I believe the keys to success of a
National Declassification Initiative are to ensure that it has
the authority, the expertise, and the resources to ensure that
decisions to either declassify or to continue the
classification of historically valuable permanent records of
the Federal Government are appropriate and reflect the best
informed judgment of all parties. There are a number of
examples where a concerted executive branch-wide approach has
worked in the past.
Furthermore, I believe that a National Declassification
Initiative could assist in the development of standardized
guidelines and protocols, provide a forum for agencies to
better understand the various dynamics entailed in assessing
and determining the appropriate action to take following a
declassification review, and assure greater consistency in
results. This initiative, representing a confederation of
existing agency authorities, expertise, and resources, could
also help fill critical training voids for agency personnel
involved in declassification reviews. Ideally, we would
eventually streamline the multiple independent agency reviews
of the same material and therefore be substantively more
efficient and effective than the current declassification
review process.
Again, I thank you for inviting me here today, Mr.
Chairman, and would be happy to answer any questions you may
have.
Mr. Shays. Thank you very much.
[The prepared statement of Mr. Leonard follows:]
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Mr. Shays. Ms. D'Agostino.
STATEMENT OF DAVI M. D'AGOSTINO
Ms. D'Agostino. Good afternoon, Mr. Chairman and members of
the subcommittee. I am pleased to be here today before you to
discuss GAO's work on how the Departments of Energy and
Defense, DOE and DOD, manage information that is unclassified
but sensitive.
DOE and DOD use the designations, as you mentioned, Mr.
Chairman, OUO and FOUO, respectively, to refer to this
information. My testimony is based on our report that you
released today here at this hearing on managing sensitive
information at those Departments. Those Department base their
programs, in large part, on the exemptions under the Freedom of
Information Act [FOIA], that deal with information that is not
national security classified but otherwise may be exempt from
public release.
In this report, we reviewed the policies, procedures, and
criteria the Departments use to manage OUO and FOUO
information. We also looked at the Departments' training and
oversight programs related to this and determined the extent to
which those programs provide assurances that personnel properly
identify and mark information.
In summary, DOE and DOD both have policies in place to
implement their programs, but our analysis of these policies
showed a lack of clarity in some key areas that could lead to
inconsistencies and errors. First, DOD policies remain unclear
as to which office is in charge of DOD's FOUO programs, since
responsibilities shifted in October 1998 to what is now the
Under Secretary of Defense for Intelligence. DOD officials have
told us that at the end of January 2006, they started to
coordinate a revised regulation that will emphasize management
of the FOUO program.
Second, unlike DOE requirements, DOD policies do not
require staff marking a document to note the FOIA exemptions
used as a basis for designating it FOUO. In our view, if DOD
required personnel to take the extra step of including the
reason they are marking the document FOUO at the time they
create it, it would help ensure that the personnel has made a
thoughtful determination and improve the oversight of the
program.
Third, both Departments' policies are unclear regarding
what point a document should be marked as OUO or FOUO. If a
document might contain such information but is not marked when
it is created, you run the risk that the document might be
mishandled and that risk increases.
Fourth, neither Departments' policies identify what would
be an inappropriate use of the FOUO or OUO designation. Without
such guidance, the Departments cannot be confident that their
personnel will not use these markings to conceal mismanagement,
inefficiencies, or administrative errors, or to prevent
embarrassment.
Finally, neither Department has an agency-wide requirement
that personnel be trained before they designate documents as
OUO or FOUO, nor do they conduct oversight to ensure that
information is appropriately identified and marked. Without
training or oversight, neither Department can assure itself
that personnel are complying with their own policies. We
recommended that both Departments clarify their policies and
guidance in these areas and establish training and oversight
systems to conduct oversight periodically.
DOE and DOD agreed with most of our recommendations in
their comments on our draft report. DOD did disagree that
personnel designating a document as FOUO should also mark the
document with the FOIA exemption or the reason that may apply.
We continue to believe this recommendation has merit because it
would cause personnel to make a more thoughtful determination
before marking the document, and since it is provisional, it
would not prejudice a separate independent decision to release
or deny the release of a document under a FOIA request.
In closing, the lack of clear policies and effective
training and oversight in DOE's and DOD's programs could result
in over- and under-protection of unclassified yet sensitive
government documents. Having clear policies and procedures in
place can mitigate the risk of program mismanagement and help
the Departments assure the OUO-FOUO information is
appropriately marked and handled.
Mr. Chairman, members of the subcommittee, this concludes
my oral statement. I would be happy to respond to any
questions.
Mr. Shays. Thank you. There will be questions. Thank you so
much.
[The prepared statement of Ms. D'Agostino follows:]
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Mr. Shays. Mr. Rogalski.
STATEMENT OF ROBERT ROGALSKI
Mr. Rogalski. Good afternoon, Chairman Shays and
distinguished members of the subcommittee. I appreciate the
opportunity to meet with you today to discuss how DOD handles
both classified and sensitive information.
Within DOD, my office is responsible for developing
policies that address both controlled unclassified information,
which we refer to as CUI, and classified national security
information. This responsibility is executed on behalf of the
Secretary of Defense and the Under Secretary of Defense for
Intelligence, two of the Department's designated senior agency
officials in accordance with Executive Order 12958, as amended,
Classified National Security Information.
As I stated earlier, the Department uses a generic term,
controlled unclassified information, to refer to all
unclassified information that has been determined to require,
for various reasons, some type of protection or control. CUI
markings such as FOUO serve to inform DOD personnel that the
information may qualify for withholding from public release and
require some degree of safeguarding. It does not mean it is
automatically withheld. It must first go through a review
process before a release or denial determination is made.
We agree with the GAO that there are areas where our FOUO
program could be strengthened. As they have recommended, we are
updating our CUI policy on how we handle FOUO and are improving
training within the Department.
Classification of national security information is, of
course, more of a challenge because of the balance that must
take place between the need for proper safeguarding and the
need for openness that is fundamental to our society. While we
understand the need for openness, we also have a responsibility
to the American public to protect information that ensures our
continued freedom. We in the Department also have the added
challenge of ensuring sound classification principles are
applied in a high-tempo operational environment.
We may sometimes take a more conservative approach to
classification so as not to endanger personnel and operations.
That is why the Department is committed to ensuring that our
classifiers take their responsibilities seriously, are well
trained, and are accountable for their actions.
There are a number of things the Department has done to
clarify and emphasize classification management. The Secretary
of Defense and the Under Secretary of Defense for Intelligence
have both conveyed their personnel commitment to a strong
information security program. Classification authorities have
been reminded of their responsibility to properly classify
information. Training requirements have been issued, and
positions requiring original classification authority are
subject to continuous review with the goal of reducing those
positions. Additionally, since fiscal year 2004, DOD has
reduced original classification decisions approximately 33
percent.
The DOD Director of Security meets quarterly with senior
security personnel from the military departments, defense
agencies, and combatant command and emphasizes, among other
things, their responsibility to have a strong classification
management program. The Defense Security Service Academy is
working on new training courses to enhance classification and
declassification, to include computer-based training that will
be more accessible to a larger audience. We just conducted a
DOD-wide security managers' conference last week where we were
able to convey to an audience of approximately 800 DOD security
professionals updates and reminders on classification
management and CUI policies that they will take back to their
organizations.
I would like to add that we support the National Archives
on recent actions that have been taken with regard to the
declassification effort. We support the moratorium on pulling
records off the open shelves until ISOO completes their audit.
We also support establishing a standard protocol for pulling
records. We believe establishing a National Declassification
Center will facilitate uniform declassification decisions.
Obviously, authorities and resources will need to be addressed.
In closing, the Department has solid policies in place that
are relevant and upon which we can continue to build. We have
accomplished much to bring education and emphasis to important
classification management issues to reduce over-classification.
We will reemphasize current markings and review of CUI-FOUO.
The Department takes its responsibility to protect information
very seriously and strives to achieve the right balance between
proper safeguarding and the need for openness in our democracy.
Again, I thank you for the opportunity to brief you on the
Department's policies and look forward to the discussion on
this important topic.
Mr. Shays. Thank you, sir.
[The prepared statement of Mr. Rogalski follows:]
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Mr. Shays. Mr. Podonsky.
STATEMENT OF GLENN S. PODONSKY
Mr. Podonsky. Thank you, Mr. Chairman and members of the
subcommittee, for inviting me to testify regarding the
Department of Energy's policies and practices for the
protection of sensitive unclassified information as they relate
to the information contained in the GAO report, ``Managing
Sensitive Information: Departments of Energy and Defense
Policies and Oversight Could Be Improved.''
Classified and other sensitive information are among the
national security-related assets in our custody that we protect
in accordance with the requirements of law, regulations, and
national policies. After reviewing the GAO report, the
Department agrees with all of the findings contained. They were
accurate and we concur that the report's recommendations should
be implemented.
Before I discuss issues of specific interest to this
subcommittee, I would briefly like to describe my office's
responsibilities in this area. Our Federal and contractor-line
managers at all levels of the Department are responsible for
ensuring that our information is properly protected. My office
has a broad range of responsibilities associated with
protecting information within the Department. These include
developing Department-wide information protection policies
addressing the identification, marking, and protection of
classified information and the various categories of sensitive
unclassified information; conducting formal document control
training; providing technical assistance to sites to improve
their information protection programs; and providing
independent oversight to assess the effectiveness of the
information protection programs throughout the Department.
In 2003, as a direct result of the recommendation by the
Commission on Science and Security, known as the Hamre Report,
the Department established its first agency-wide process for
identifying and protecting sensitive information that we call
``Official Use Only,'' [OUO]. This information is defined as
classified information that has the potential to damage
governmental, commercial, or private interests and which may be
exempt from public release under the FOIA.
The purpose of our OUO program is to provide a means to
control sensitive unclassified information and protect it from
inappropriate disclosure; limit information protected from
disclosure to that which is legally exempt under FOIA; provide
guidance for consistent and accurate identification of OUO
information; standardize the identification, marking, and
protection of OUO information; and facilitate the appropriate
sharing of unclassified information.
Access to OUO information is not overly restrictive. OUO
information may be provided to individuals inside or outside
the Department that need the information to perform their job
or other DOE-authorized activity. Since OUO information is not
classified, a security clearance is not required. The only
requirement is a need to know. Overall, our OUO program is
intended to provide a formal, workable process to identify,
control, and protect certain sensitive unclassified information
while making that information readily available for legitimate
use.
We believe our program will be even more effective with the
implementation of the GAO recommendations contained in their
report. As previously stated, we found that the report was a
fair evaluation of the Department of Energy's program and the
findings to be accurate as well as useful.
In response to the GAO report, we are revising our order
and manual to define inappropriate uses of OUO designation. We
are revising our program directives to require specific initial
and refresher training, clearly identify the scope and content
of that training, and assign responsibilities for ensuring that
the training is developed and conducted. We are developing a
process to evaluate the identification, marking, and protection
of OUO information and incorporate that process into our
independent oversight program. We are also modifying our policy
directives to require the incorporation of similar evaluations
into line management, field oversight, and local self-
assessment activities.
Turning just for a moment to our congressionally mandated
effort to review documents released to the National Archives by
other agencies under the Atomic Energy Act. The Department of
Energy controls the dissemination and declassification of
restricted data, which can be defined as nuclear weapon design,
nuclear material production, and naval reactor information,
loosely. We have dual responsibility with the Department of
Defense for formerly restricted data, which is information
concerning the military utilization of nuclear weapons.
During our review of records at NARA, we have never
reclassified information that was declassified. The restricted
data and formerly restricted data information that we found was
classified at the time of the Executive Order 12958, classified
national security information when it was issued, and remains
classified. We have ensured that these documents are properly
marked and protected as restricted data or formerly restricted
data.
In conclusion, Mr. Chairman, we want to assure you and the
members of the subcommittee, the Department strives to protect
all sensitive information in our possession as required and
permitted by applicable laws, regulations, and Executive
orders. Our OUO program is designed to provide a reasonable
level of protection to sensitive unclassified information while
still accommodating our own and others' needs to use that
information to conduct business and to address the legitimate
and recognized needs of the public to have access to that
information. We believe our responses to the GAO
recommendations will strengthen our program's ability to
achieve those goals. Thank you.
Mr. Shays. Thank you, gentlemen.
[The prepared statement of Mr. Podonsky follows:]
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Mr. Shays. I am going to call on Mr. Waxman first, with the
concurrence of Mr. Kucinich, but I just want to say for the
record, I think we have a huge problem and I will be looking to
you all to help us figure out how we get headed in what I would
call the right direction. So I would like to come out of this
knowing what we could be doing about it.
At this time, the chair would call on Mr. Waxman. Mr.
Waxman, you will have the floor for 10 minutes.
Mr. Waxman. Thank you very much, Mr. Chairman.
I want to focus my questions on the allegations of
researchers who claim that the administration has been secretly
removing documents from the National Archives that have already
been declassified. Mr. Weinstein and Mr. Leonard, can you help
us understand what is going on here? What agency is in charge
of this program today?
Mr. Weinstein. That is a difficult question to answer. Let
me explain why, Mr. Waxman. There has been speculation about
the National Archives having secret agreements with various,
multiple Federal agencies authorizing the re-review of
declassified documents. I would like to clarify for the record
that to the best of the knowledge of the Archivist, NARA has
one classified Memorandum of Agreement pertaining to the issue
of re-review, one.
The Memorandum of Agreement [MOA], is with a component of
the Department of Defense and remains classified. The MOA is
procedural in nature and deals with such things as proper
archival procedures for handling accessioned records, recording
any decisions made by the agency, and ensuring that the records
are managed according to NARA requirements, and I cannot say
anything more about the MOA, which gets to the heart of your
question, I am afraid, in an open session because it contains
classified information.
Mr. Waxman. So what----
Mr. Shays. Are you sure it is actually sensitive
information?
Mr. Weinstein. I was told classified, Mr. Chairman.
Mr. Waxman. Therefore, would one assume it is the
Department of Defense that is taking the action, since that is
the only group you have a Memorandum of Understanding?
Mr. Weinstein. As I recall your question, it went to the
heart of who was in charge of this process.
Mr. Waxman. Who are the agencies in charge of the program,
the whole process of reclassifying these documents?
Mr. Weinstein. That is what this audit is determined to
find out, and if you can bear with us until the audit is
completed, I think we will have an answer that will----
Mr. Waxman. So we don't know who it is, but can you tell us
what authority they are operating under to pull these documents
from the shelves? These documents were already declassified.
What authority do they have to do this?
Mr. Leonard. Just to buildupon what Professor Weinstein
indicated, in addition to the Department of Defense activity,
Mr. Podonsky indicated that the Department of Energy has been
conducting re-review of material at the National Archives since
the late 1990's, as well as on occasion the Central
Intelligence Agency has done it, as well, too.
If there is a common thread, this does not address every--
--
Mr. Waxman. Let me ask the question----
Mr. Leonard. Sure.
Mr. Waxman [continuing]. And then we will see if you have a
direct answer to the question, and if you don't, why. We don't
know exactly who is doing this and you have not been able to
respond to us under what authority they are doing it.
Mr. Leonard. I was just about to get to that, Mr. Waxman.
Mr. Waxman. OK.
Mr. Leonard. The authority that they are doing it under is
under the framework of the Executive order. Only agencies that
have originated the information have the authority to
declassify it. So one of the most common situations that has
arisen is where, for example, if an agency declassifies its own
records but it contains information that belongs to another
agency and they did not afford that other agency the
opportunity to review those records prior to the
declassification action, pursuant to the order, that is not
classification under proper authority, and so----
Mr. Waxman. So this isn't pursuant to a Memorandum of
Understanding with the National Archives. It is pursuant to an
Executive order?
Mr. Leonard. Yes, sir.
Mr. Waxman. OK. Now, it is hard to still, even with that
explanation, understand how these examples we have of records
from 50 years ago would be changed----
Mr. Leonard. The simple answer is they don't. The exemplars
that were provided to my office early this year as well as that
has received coverage in the press, those exemplars clearly do
not adhere to the classification standards of the order and are
inappropriate----
Mr. Waxman. Well, let me----
Mr. Leonard [continuing]. And--I am sorry----
Mr. Waxman [continuing]. Turn to the questions I have about
the audit itself that you are going to be doing.
Mr. Weinstein. Congressman, could I respond just a half-a-
second to that?
Mr. Waxman. Yes.
Mr. Weinstein. In response to Mr. Leonard's advice that he
has just given to you, to me, and in response to the situation,
I took the actions which I took, which were based obviously on
the fact that I could see no sensible use in classifying things
that are 50 years old that have already been declassified.
Mr. Waxman. Well, you called a halt to any further removal
of documents while you conduct your audit, is that right?
Mr. Weinstein. Yes, that is correct.
Mr. Waxman. What was it that led you to decide to take this
measure? Why did you conclude that these agencies should stop
what they are doing until you examined their actions?
Mr. Weinstein. Well, to begin with, Congressman, I wasn't
aware of their actions and it was important for me to become
aware of those actions. I learned about their actions from the
New York Times, the way the American public did. Having been
Archivist for a year, that struck me as being a rather
impossible and absurd way to learn to know what is happening at
your own agency and I acted immediately.
Mr. Waxman. So you acted immediately and you stopped any
removal of documents, and I am certainly pleased you are
investigating the matter. Researchers are saying that there is
an interagency memorandum and the only one that you are aware
of is the one that the National Archives has with the
Department of Defense?
Mr. Weinstein. Component of the Department of Defense, yes,
sir.
Mr. Waxman. And what does that Memorandum of Understanding
say?
Mr. Weinstein. Well, as I indicated, Congressman, I would
be happy to discuss this in a closed session, but
unfortunately, for this discussion, it contains classified
information which I am not prepared to discuss in open session.
Mr. Waxman. And why is it classified?
Mr. Weinstein. Pardon?
Mr. Waxman. Why is it classified?
Mr. Weinstein. Why is it classified?
Mr. Waxman. Yes.
Mr. Weinstein. I don't know.
Mr. Waxman. Is there something in the Memorandum of
Understanding itself that will harm national security if it
gets out?
Mr. Weinstein. I think I probably have to stand by my
previous answer, Congressman.
Mr. Waxman. That you can't say that in open session.
Mr. Weinstein. I would be happy to discuss it in a closed
session.
Mr. Waxman. Has there been any discussion within the
administration about declassifying this Memorandum of
Understanding, if you know?
Mr. Weinstein. That I know of? Yes, I would say there has
been.
Mr. Waxman. And who wanted the MOU released and who didn't
want it released?
Mr. Weinstein. Let me say that if it was released, I would
have no trouble in conveying it, and that is as far as I would
go on that square.
Mr. Waxman. Does the MOU include any mechanisms to check
against officials making these absurd classification decisions?
Mr. Weinstein. That is tough for me to answer, Congressman,
as you might appreciate given what I said previously.
Mr. Waxman. Mr. Chairman, given these responses and since
so many of the details about this program remain classified, we
are left with some significant questions. I would like to make
two requests. First, Mr. Chairman, would the subcommittee send
a request for the classified MOU that governs this program? And
second, could the subcommittee also request a classified
briefing on this program with all the relevant agencies to
obtain answers to these pressing questions?
Mr. Shays. That will happen. We will do that. It makes
sense. I am almost tempted to just tell my counsel, respond in
a way, as well, because I am finding this--I don't know, Mr.
Weinstein, if part of your answers are almost the exact kind of
problem that we are trying to make in this hearing. Is the
reason why some information isn't being responded to Mr. Waxman
because they would embarrass people or is there a legitimate
reason to classify or to suggest that this can't be said
publicly?
Mr. Waxman. He's caught in a catch-22 because----
Mr. Shays. I know he is, but in a way, the bottom line is,
there is almost an absurdity of going into having a classified
hearing about something that is sensitive but unclassified.
Mr. Waxman. But the MOU is presumably classified.
Mr. Weinstein. Yes, sir.
Mr. Waxman. So we want to get, one, a copy of the MOU----
Mr. Shays. Right.
Mr. Waxman [continuing]. And I hope you support that
request----
Mr. Shays. Yes.
Mr. Waxman [continuing]. And second, we ought to get a
classified briefing on this program, this whole program,
because it is not just based on the MOU, but it seems to be
based on some Executive order and all other agencies are
involved----
Mr. Shays. Let me----
Mr. Waxman [continuing]. And we ought to see what is so
pressing that----
Mr. Shays. I am going to start first to ask that it be
declassified, that we can have it in a public setting. If it
can't be declassified, then we will have a classified setting
hearing. But you can be assured that there is going to have to
be some real justification as to why it needs to be classified.
Are you comfortable with that?
Mr. Waxman. With your request that it be declassified and
given to us, and if that is refused, you will request that it
be given to us even though it is classified and hold a
classified hearing on it.
Mr. Shays. Right--no--yes--[laughter]--let me explain what
I am asking. I am asking my staff to do this as counsel or
someone with legal expertise because I find some of this almost
silly and absurd. I find some of this destructive to our
country, and I think what Mr. Waxman wants is very, very
important, but I don't want to start doing the very thing that
I am finding others doing. I don't want to start to suggest
that some things need to be behind closed doors when, in fact,
maybe they shouldn't be, and so that is what I am wrestling
with.
Mr. Halloran. Thank you, Mr. Chairman. For the record, to
the Archivist, will the Archives provide the subcommittee under
classified cover a copy of the Memorandum of Understanding, of
Agreement?
Mr. Weinstein. It is my understanding that is entirely
appropriate, but I would like to turn to my counsel, if I may,
just to be sure that I am not misstating anything here.
[Pause.]
Mr. Weinstein. One of the things about not being a lawyer,
counselor, is one has to consult. The classifying authority, I
have been told, is with the classifying agency, which would
have to authorize the--without further action by the
subcommittee, the release of the classified Memorandum of
Agreement.
Mr. Halloran. But you can't tell us to whom such a request
would be directed?
Mr. Weinstein. I suppose what we would do would be to
convey your request to the classifying agency and try to get an
immediate response so that we can accommodate the subcommittee.
Mr. Leonard. Again, it is a Department of Defense
component, so it makes it very easy.
Mr. Waxman. So the classified agency is a Department of
Defense component, is that----
Mr. Weinstein. That is what I said in my statement.
Mr. Rogalski. Mr. Chairman, the MOU does belong to the
Department of Defense in conjunction with NARA. We have
received a FOIA request for that MOU. We are looking at that
now to see if it can be sanitized. But let me assure you that
the rationale for classifying that was done in accordance with
what the Executive order determined by the original
classification authority.
So we certainly have no objection to providing you a
classified briefing on that MOA. We do not have a problem and
we are going through the process of seeing can it be sanitized
now and being presented to you in an open forum. So that is
happening as we speak. But again, I want to assure you that the
basis for the classification, again, in my opinion, after
reviewing that, was sound and between NARA and us. We can
provide that to you.
Mr. Shays. So the bottom line you are stating is that it
was your recommendation that it be classified, or, excuse me,
that you concurred with the recommendation of others that it be
classified?
Mr. Rogalski. My office concurred with the classification
decision done by the original classification authority
responsible for that document, that is correct.
Mr. Shays. And you think it would be unlikely that if we
asked that it be reviewed to be declassified, it would be
unlikely it would be declassified?
Mr. Rogalski. We can certainly review that and determine
but I don't want to give you a document with all black lines on
it, redacted.
Mr. Shays. No----
Mr. Rogalski. I want to give you something that is
beneficial----
Mr. Shays. And we don't want a sanitized version. We want
the real thing and we will do it----
Mr. Waxman. Mr. Chairman, let us get both, because it may
take them too long to figure out how to----
Mr. Shays. OK.
Mr. Rogalski. And we have no problem briefing you on the
rationale, the MOU and the rationale for the classification
decision.
Mr. Shays. I think Mr. Waxman's suggestion is important.
Let us get the sanitized version that can be made public and
then we would like to see the real McCoy. It will be a good
opportunity for us to decide as a subcommittee whether we think
there was justification for it being classified. I think that
we will ask all the subcommittee members to see this document
so that we--in the subcommittee to get their views, and we will
issue a statement on what we think about that document and the
justification we heard.
Mr. Leonard. If I could just add, it will be withheld, I
presume, Mr. Chairman----
Mr. Shays. Well, it may be sensitive but unclassified.
Mr. Leonard. And if I could just add something here to
further shed some light on the issue, again, the audit that is
currently underway, and I don't want to presuppose any final
results, but I can tell you one of the things that we
ascertained very early on, the exemplars that were provided to
our office and were released to the media and whatever, those
exemplars were not pulled pursuant to that MOA. They were
done--action taken quite a few years ago.
Mr. Shays. At this time, the chair would recognize----
Mr. Waxman. Mr. Chairman, there is then the question of who
did those and why----
Mr. Leonard. They were pulled by the CIA and they were
pulled in response to a serious breakdown in quality control
back in about the year 2000, where information that clearly was
inappropriate for release ended up being released, and in an
attempt to clean that up, it went too far the other way.
Mr. Shays. With all due respect, about the year 2000, there
is a big difference between the year 2000 and the year 2001.
Was it in 2000?
Mr. Leonard. I believe it was the year 2000, yes, sir.
Mr. Shays. So it was the previous administration in that
case?
Mr. Leonard. Yes, sir.
Mr. Waxman. The same CIA Director. [Laughter.]
Mr. Weinstein. Mr. Chairman, if I could just add, what Bill
Leonard has just mentioned gets to the heart of the complexity
that I was discussing with Congressman Waxman of who did what,
when, and related to your initial question. We hope to have as
many answers to that question as we can put them into the audit
and we will look forward to getting you a copy of that audit.
Mr. Leonard. And actually, if I could just add, I mean, the
whole confusion, the awkwardness and whatever cries out for
transparency in this process. That is the one thing that we are
committed to providing, not only transparency going back to
1995 for all such activity but continuing transparency for a
number of good reasons. No. 1, to ensure that any action taken
along these lines is absolutely, positively necessary because
people know that people will be watching, but even more so, to
prevent perceptions being created that, quite frankly, harm the
Nation, harm the process, and are understandable but yet are
unfortunate.
Mr. Shays. Let me just say, I happen to have taken off my
jacket. I was feeling a little warm. I would want any of our
witnesses to feel that they could do the same thing. I don't
want a double standard. I am being serious. If you would like
to take off your jackets or coats, feel free.
Mr. Van Hollen.
Mr. Van Hollen. Thank you, Mr. Chairman. As you said, this
whole process seems to have sort of an Alice in Wonderland
quality to it.
Let me just make sure I understand the memo. The memo is
between the Archives and an agency of DOD, is that right?
Mr. Leonard. Yes.
Mr. Van Hollen. What was the classification level of that
memo? Is it secret? Is it top secret?
Mr. Leonard. I believe it is secret.
Mr. Van Hollen. Secret, OK. Now, as I understand it, there
were many documents that were reclassified outside of that
particular agreement.
Mr. Leonard. That is correct.
Mr. Van Hollen. In other words, there were other government
agencies that came in and reclassified documents, is that
right?
Mr. Leonard. Yes, sir.
Mr. Van Hollen. OK, and those include the CIA and DOE?
Mr. Leonard. That is correct.
Mr. Van Hollen. Were there any others?
Mr. Leonard. Not that I have identified yet, but again,
that is the whole purpose of the audit, is to fully flesh that
out.
Mr. Van Hollen. All right. Now let me just focus on that
category for a moment----
Mr. Leonard. Sure.
Mr. Van Hollen. I understand this memorandum apparently
regulates how the Archives deals with an agency of DOD, but let
us take DOE, for example, since we have a representative from
DOE here at the table and we don't have a CIA representative.
Mr. Leonard. Sure.
Mr. Van Hollen. If DOE wants to go back, they can
reclassify documents under the Executive order, as I understand
it, which they were the original classifier of, is that right?
Mr. Leonard. Actually, the situation with DOE is even more
unique since, as Mr. Podonsky explained, their information
which pertains to nuclear weapons is actually outside the scope
of the Executive order and is classified pursuant to statute,
the Atomic Energy Act.
Mr. Van Hollen. OK, so let me just make sure I understand.
So you are saying the Executive order doesn't apply to DOE at
all?
Mr. Leonard. It doesn't apply to DOE, at least with respect
to restricted data and formerly restricted data which deals
primarily with nuclear weapons, yes, sir.
Mr. Van Hollen. OK. So if DOE has documents that they
originate at DOE, they are at the Archives now, right?
Mr. Leonard. Yes, sir.
Mr. Van Hollen. Now, they want to come in and reclassify
documents. First of all, let me figure out how they got
declassified to begin with. As I understand it, technically,
DOE as the classifying agency, even under this other authority,
are they still the ones that have the authority to declassify
it and are they only ones that have the declassification
authority?
Mr. Leonard. They have the authority, and what happens in
that case is what happens in other cases, as well, too, this
kind of information will appear in another agency's record, for
example, the Department of State, and when they go to
declassify it, the person who does it does not necessarily
recognize that, hey, wait a minute, there is information here
that belongs to another agency. I can't take unilateral action
on it.
Mr. Van Hollen. I understand. I understand that. So when
DOE is going in to reclassify, the first question I have is,
are they going in to reclassify DOE information that has been
declassified by the State Department or other agencies, or have
they also gone in to reclassify DOE information that they
originally declassified?
Mr. Leonard. That is right on, because what has--again, our
audit is in process, but one of the key issues that has come
out very early on is that when agencies are re-reviewing for a
specific purpose, if they come across additional information
that they believe was inappropriately declassified, that
likewise is being put aside.
Mr. Weinstein. Let me add a little complexity even beyond
that, Congressman Van Hollen, if I can. It is fair to say that
we are learning more with each day of doing this audit, and it
is fair to say that in my position as Archivist, I am learning
even more because until the news media provided me with that
information, that was my first knowledge of this program and
all of its complexities and I am not sure I have the complete
handle on the story now. As a result of this audit, I hope to
have it, and when I have it, obviously, the subcommittee will
have it, as well.
Mr. Van Hollen. Thank you and I appreciate that. I
understand. With the audit so far or with your research into
this so far, you have discovered instances where the DOE has
reclassified information that they themselves declassified?
Just yes or no, if that is----
Mr. Leonard. That they themselves have declassified?
Mr. Van Hollen. That they had originally declassified, and
they have gone back to reclassify that.
Mr. Leonard. It is unclear. I am not too sure if I have
that depth of understanding.
Mr. Podonsky. Let me, since it is a hypothetical, let me
just--I recognize it is a hypothetical, but again, as I said in
my testimony, the Department of Energy has not gone back into
the National Archives and reclassified anything that was
declassified. However, what we were asked to do in 1996 by the
Congress is to go back in and take a look at all the records
from other agencies that may have had RD or FRD, and then the
Kyl amendment went in and said also go in and train other
agencies to know how to look for RD or FRD, and then the Lott
amendment said go in and also take a look at all documents that
were already previously taken off the shelf at NARA. So
hypothetically, we could be the agency that was doing it, but
we are not.
Mr. Leonard. Congressman, let me answer the question, try
to be as direct as I can to your question. The Executive order
has a very high threshold that if an agency declassifies
information and for whatever reason changes their mind, they
have a very high threshold to meet. Agencies to date have
represented to me that they have never done that. Based upon
what I know to date, I don't think that is necessarily the
case. I think they have, in fact, done that for a variety of
reasons, may not have understood it to be that, but I do
believe that there have been instances where agencies have gone
back and reclassified information that they themselves have
previously declassified without meeting the threshold that is
spelled out in the Executive order.
Mr. Van Hollen. OK. Let me just also briefly try and
understand the process by which this happens. Let us say that
the CIA or DOE, say they want to come back and take a look at
whether other agencies have declassified information that they
were the original classifiers of. What do they do, come over to
the Archives, they knock on the door and say, where are our
files, and they go in? Does the Archives have any ability to
make an independent determination about whether what these
agencies are doing is appropriate or not appropriate?
Mr. Leonard. The delineation of responsibilities is when
records enter to the National Archives and when they are
accessioned into the Archives, they are under the control and
the custody of the National Archives. They belong to the
Archives. So no agency can just simply come in and rifle
through records on their own.
Mr. Van Hollen. That is why you can have a moratorium?
Mr. Leonard. The information that is contained in those
records, when it is classified information, the classification
authority over that information remains with the agency, and so
when agencies exercise declassification authority or
reclassification authority or say that this was declassified
improperly, that is an authority that they have that the
Archives does not have. The Archives cannot classify
information on their own, and so the Archives is hard pressed
from that perspective to challenge an agency with respect to
exercising their classification authority.
Mr. Van Hollen. Thank you, Mr. Chairman. I have a lot more
questions, but I don't want to take up any more time, but thank
you.
Mr. Shays. Thank you for your questions.
At this time, the chair would recognize Mrs. Maloney.
Mrs. Maloney. I want to thank you, and I would like to ask
the representative from the Department of Defense this
question, Mr. Rogalski. I want to give an example of one audit
and how there was no appeal process and then really ask all
Members, where is the appeal process when there is a redaction.
I cite the publicized case of the Iraqi oil money, the
audit for the United Nations, where DOD had an audit through
the DCAA, the contracting audit agency, about the overcharges,
and in that audit they concluded that there was an overcharge
to our government of over $200 million. During the audit and
during the time that it was handed over to the United Nations
and to the public, absolutely everything that mentioned the
overcharge was redacted. It was reported in the paper that the
audit was handed over to Halliburton and Halliburton made all
the redactions, handed it back to DOD, and no one questioned
this. It finally came out in the press. I would like to put
this article into the record of this hearing.
But my question is, I think that obviously this was an
inappropriate redaction of information. Overcharging is
illegal. It is wrong. It is our taxpayer money. In this case,
it was the Iraqi oil money. It is a report to the United
Nations. But when waste and abuse appears in our government, we
don't want to have it redacted so that we can move forward
watching taxpayers' money more appropriately.
And my question really to the panel, and I will start with
DOD, since that happened to have been a DOD contracting audit
under DCAA, where is the appeal process? Where is the appeal
process? Say I am a reporter, or even a staff member on this
subcommittee, or a Member of Congress, and I see that
everything in the report is redacted. Who do I appeal to that
is an independent government professional who can decide
whether it is in government's interest, the public interest,
the taxpayer interest, the honesty interest to have that
information revealed to government and to the appropriate
overseers to correct it so that money is not wasted in the
future?
Mr. Rogalski. I am not familiar with the cases you
describe, ma'am, but I can certainly take the question for the
record and get that back to you if you would like more
information on it.
Mrs. Maloney. I will send it to you in writing. It was
reported in the press widely.
Mr. Rogalski. OK. There is an appeal process. We have FOIA
offices throughout the Department of Defense. People are
trained. They are familiar with the exemptions and people are
allowed to go and appeal that determination once that document
is released and----
Mrs. Maloney. And how do they appeal it? Do you need a
lawyer to appeal?
Mr. Rogalski. No, ma'am. They can come in as a citizen or
whatever----
Mrs. Maloney. Take this example, that everything is
redacted. I mean, to me, I think it is scandalous that it was
given back to Halliburton and they are the ones who redacted it
and that DOD then accepted it. But say I get a paper on a
contract and everything is redacted. I mean, how do I appeal? I
don't know what was in it. I can just say the entire page is
redacted. The purpose of the audit was overcharges. Why in the
world are you redacting overcharges, or what are the bases on
which you can appeal? It has to have certain standards, right?
Mr. Rogalski. Well, the standards are what is required
under the FOIA, those exemption categories, and have we
provided the rationale for that when you come in with that
appeal. There are certain examples of where you see it, as you
described earlier, blacked out, and I think those are wrong.
Mistakes have been made. But I think part of us and what we are
doing is having an education process, so before it is released
for FOIA, people are doing the right thing. And we agree. We
need more rigor in the process. I will not deny that. So----
Mrs. Maloney. What I don't like about this, I just came
from a meeting earlier this morning with whistleblowers and
there is no protection for whistleblowers, particularly in
defense and national security. They were saying that if they
don't toe the party line, then they lose their job, they lose
their clearance, and they are made the evil ones.
So here you are appealing to another person within the same
department that shows a mismanagement in that department. That
employee may know that their higher-ups may strip them of their
jobs, their standing, their clearance, which has happened to 75
members of the government that are part of this organization
that I met with earlier this morning. See, you are appealing to
a group of people who are not covered under the Whistleblower
Protection Act. In other words, if you don't toe the party
line, you know, obviously someone wanted to cover up that these
overcharges were there. Otherwise, they would have just put it
out in the public to begin with. In other words, it is not
working, and to say we should be more rigorous is not answering
the problem. So I would like some comments from others.
I think one of the biggest responsibilities all of us have
is to maintain the faith and trust of the American people in
our government, and when they read stories like this, it is
upsetting to them. It sounds like their government wants to
cover things up. And I would say that I think one of the
strongest parts of our government is our ability to look at our
problems, discuss them publicly, and make corrections. We
certainly have made a lot of them in New York with the
September 11th, with our security, to notice what we are doing
wrong, to discuss it publicly, and then go forward.
But things like this, these massive redactions for which no
one really can appeal--people tell me when they appeal, they
are appealing to the same agency. They just say, our redactions
are appropriate. Get lost. There is really no independent place
to go. I am not trying to point fingers at anybody, at any
administration or any party or any department. I am just saying
that I think this is a problem and if this continues, there is
a lack of faith in the system. And when there is a lack of
faith in the system, you have cynicism, you have people that
don't support their government, and you have problems.
You know, I am really seriously very disturbed about it and
I would like to hear from anybody on the panel or any of my
colleagues if they have an answer to this problem.
Mr. Weinstein. Can I address that?
Mrs. Maloney. Certainly.
Mr. Weinstein. Congressman Maloney, what you are describing
is obviously not a satisfactory situation, but let me give you
a little personal response to what I take is a very personal
reaction on your part. I am here today because I felt the head
of the National Archives and Records Administration should be
here, not simply the able, skilled professional, my colleague
Bill Leonard, who is reflective of the other able, skilled
professionals at this table.
I am here because what the researchers and historians
uncovered about a month ago is not a tolerable situation, not a
situation that should be tolerated, and I have done what I can
within the agency to bear witness to the need for change and
the need for immediate change and the need for a genuine effort
to persuade the public and to persuade our colleagues in this
town of both parties, of both Houses of Congress, in the media,
whomever, that we are on the case, that we are going to find
out what happened and that information will become public, and
that with the support, I am pleased to say, at the moment, of
not just the researchers who brought forth this material, but
with the support of the agencies that have been involved, as
well, and I would like to keep that there because I think this
is a moment when good changes can be made that please this
country.
But what recourse can we have? Often we don't have legal
recourse, but we have a bully pulpit. We have the ability to
speak out within government and to use that ability, and that
is what I am trying to do here and that is what I suspect that
my colleagues elsewhere in the government are also trying to
do.
So I respect your question. I don't have an answer to it
because I don't have the technical answer to where----
Mrs. Maloney. I appreciate all your work, and I have done a
lot of work with Archives. You have done a great job and we
appreciate it. But I would like to ask Ms. D'Agostino with the
Government Accountability Office, a nonpartisan factual
organization--you do a great job for the American people--I see
this as a problem. Do you have any solution to it of how do you
appeal in any case? You could put it in the EPA, where someone
goes in and closes down a business and they say it is, ``an
illegal business,'' and then they redact the entire report on
how they came to that decision. How does that small business
person appeal? Members of the press tell me that if they ever
question a redacted report that they receive from anybody, that
it is like you are talking to a blank wall.
Then another thing that I see in government that I find
extremely disturbing is when they say it is under
investigation. Therefore, we can't give you any information.
That happens all the time. Many investigations on contracts or
abuses on whatever, they will say, oh, we have referred it to
our IG. It is under investigation. And for the next 5 years,
you can't get any information. That is absolutely wrong and it
happens all the time.
I had a case today, an EPA case where they are
investigating something, so my constituent cannot get any
information and they may not be able to get information for 10
years because it is under investigation and the investigation
may never end. May she answer?
Mr. Shays. Yes, and then we need to move on.
Mrs. Maloney. OK.
Ms. D'Agostino. We actually run into ongoing investigation
issues in our work for the Congress, as well, so there is not
very much that we can do about it. We usually have to stand
down and wait for an investigation to be completed before we
can then do our work, so this happens to us, as well, even with
our very broad authority.
But basically, in terms of appeals, the first step would be
to make a FOIA request and request that a document be reviewed
under----
Mrs. Maloney. But I am talking about FOIA requests, when
the FOIA requests come back completely redacted.
Ms. D'Agostino. Right, and these appeals can be done
through the judicial system. So you can take the issue to
court.
Mrs. Maloney. To court?
Ms. D'Agostino. That is an option.
Mrs. Maloney. But most people can't afford to go to court.
Mr. Podonsky. Mrs. Maloney.
Mr. Shays. Why don't you respond and then I am going to ask
my questions.
Mr. Podonsky. In the Department of Energy, Mrs. Maloney, if
something was requested under the FOIA and the recipient is not
satisfied, we have a separate office called the Office of
Hearings and Appeals that reports directly to the Secretary and
that would give your constituents the opportunity to go
separate from the office that was responsible for redacting the
document to begin with.
Mrs. Maloney. And do all agencies have it, or is this
unique to the Department of Energy?
Mr. Podonsky. I don't know what the other agencies have.
Mrs. Maloney. Thank you.
Mr. Shays. I am going to yield myself time now to say that
my focus--I think the whole issue of reclassification is
interesting, but not really the issue that concerns me. I tend
to think some is understandable. In one sense, I can explain
it.
I think there was a dispute between the President and
Congress, I think in one or two instances, and the reason it
was pretty focused on the Department of Energy was there was
sensitive information given out that related to things that
could be very destructive involving nuclear information. I
understand that. But I think it is somewhat stupid, because I
think once it is out, it is out. So that is not what really
bothers me.
What bothers me is what we had in previous hearings, where
even from the Department of Defense, our witness there said up
to 50 percent was over-classified and the outside organizations
were in the 50 to 90 percent range. What that says to me is
that people who need this information won't get it.
What bothers me, though, is the whole concept of ``For
Official Use Only,'' but really the more broad category of
``Sensitive But Unclassified,'' SBUs. That is what I want to
spend my time talking about.
Ms. D'Agostino, even your agency is a major offender here.
No, seriously. I mean, we are almost asking you to investigate
yourself because almost everything you provide us is ``For
Official Use Only.'' I am exaggerating slightly, but it is
true. Tell me why.
Ms. D'Agostino. Well, the GAO does not have classification
authority, and as a result----
Mr. Shays. So let me translate. You do not have the
capability to classify anything.
Ms. D'Agostino. Correct. We give the documentation that we
receive from other agencies the same protection that they do.
In other words, we can't question their classification, say, of
an FOUO document. I mean, we can question it, but basically if
they say, look, this is FOUO and we have done a security review
on your draft report and it is FOUO, then GAO must stand by----
Mr. Shays. Why is that? Maybe I need a little bit of an
education on the whole concept of ``Sensitive But
Unclassified.'' It is in the statute. There is a process. What
is the process that justifies anyone talking about ``Sensitive
But Unclassified?''
Ms. D'Agostino. I mean, I am prepared to talk about the
FOUO category, but basically, that is based in large part in
statute in the FOIA, the Freedom of Information Act, and the
folks who have the authority to designate information as FOUO
are the folks in the executive branch who provide us the
information.
Mr. Shays. Is it anybody? Could I write a document and say
this is ``Sensitive But Unclassified?''
Ms. D'Agostino. In the Department of Defense, what our
understanding is is the personnel of the Department are
empowered to designate information----
Mr. Shays. Who empowers them?
Ms. D'Agostino. They are empowered under the regulation
that DOD follows for FOUO, the security regulation.
Mr. Shays. I am sorry, I am not clear. Are you clear about
this? You are looking at me like----
Ms. D'Agostino. No, no, no, no, no. I am just saying that
GAO doesn't classify information.
Mr. Shays. Let's get you out of the picture. Tell me
about----
Ms. D'Agostino. Well, you were concerned that we were a big
offender----
Mr. Shays. Well, I am concerned, but I don't want it to
block you being comfortable telling me information. I am
wrestling with the fact that it is almost like we have
invented, like the executive branch has invented this process
to which they then can run anywhere they want with it if they
have it. Are you saying that when Congress passed the Freedom
of Information law, we empowered this concept of ``Sensitive
But Unclassified?''
Ms. D'Agostino. I didn't do a review of all ``Sensitive But
Unclassified.'' I mean, we focused our work on the OUO and----
Mr. Shays. OK. Let us do OUO. Talk to me about them.
Ms. D'Agostino. Again, DOE and DOD have their regulations
and their programs that govern this, and information generated
by personnel within those Departments that they believe fits
within----
Mr. Shays. Mr. Rogalski, maybe you can walk me through it,
and then Mr. Podonsky.
Mr. Rogalski. They Department of Defense has a regulation
called Information Security Regulation. We do not have, like we
do original classification authorities, anyone in the
Department of Defense is authorized to make that FOUO
determination based on the guidance that is contained in the
information----
Mr. Shays. Could you say that again? Everyone in the
Department of Defense? How many employees do you have?
Mr. Rogalski. Two-and-a-half million cleared people,
something like that, but let me finish my sentence.
Mr. Shays. Sure. I am sorry. I shouldn't interrupt you.
Mr. Rogalski. Subject to a review by their supervisor. So
there is an inherent responsibility for supervisors in the
Department of Defense to ensure that their employees are
following the guidance contained in any regulation, directive,
instruction we have in the Department. So we have an
Information Security Regulation that specifies what are the
criteria for applying the FOUO marking. It talks about the
FOIA, the nine exemption categories. The first one that
automatically exempts is if it is classified. And one of the
things the GAO report recommended and we strongly endorse is we
need better training among our employees within the Department
of Defense.
So I think the way to achieve, I think, the balance you are
looking for and the right thing to do is to put more rigor,
have more standardized training, have uniformity across the
Department, and so we recognize that and we have agreed to that
in the GAO report and we are combining--we are including
updated guidance in the rewrite of that 5201(R) regulation, the
information for deregulation that is going to be published this
year.
So to answer your question, employees have the authority,
subject to, like anything in the Department, review by their
supervisor.
Mr. Shays. Bottom line, every employee can designate it,
but a supervisor has to sign off?
Mr. Rogalski. It is not a sign-off per se, but it is a
review. If a member of my staff generates a document, whether
it is FOUO or classified, it----
Mr. Shays. There is a difference. There is a difference.
The implication I had from listening to, and that is why I
wanted to say it and I appreciate you clarifying it, was we may
have 2 million-plus employees, but their supervisor has to, I
thought, basically approve it. It is possible the supervisor
never even sees it, correct?
Mr. Rogalski. There is that possibility, but again, if that
is an issue or problem, I believe that can be overcome through
proper training, the supervisors understanding what their
responsibilities are. But you are correct.
Mr. Shays. OK. Mr. Podonsky.
Mr. Podonsky. Relative to your question, Congressman Shays,
prior to 2003, the Department had over 20 different markings
for sensitive information. The Office of Classification went
forward with, in implementing the recommendation of the Hamre
Commission report that I mentioned in my testimony, to bring
that down to one, OUO, and as the GAO report recognized and I
also say it in my testimony, we fully agree with we need to do
a much better job of defining who has the authority to do the
OUO, the training to make sure that it is done properly, and
most important of all, to have an independent oversight of what
is being done with those documents. So every part of the
recommendations in the GAO report hit the heart of the issues
at the Department of Energy.
I would say that we have a very able, professional,
nonpolitical staff responsible for classification of documents,
the OUO situation in the Department was not dissimilar to the
Department of Defense other than the magnitude is much smaller
because we only have 15,000 employees, of which 5,000 are
classifiers, and our experience is mostly it is the 5,000
classifiers that are doing the OUO markings.
Mr. Shays. I have questions for each of you. Ms.
D'Agostino, I would like to know what is your response to DOD's
objections to a GAO recommendation that DOD mark FOUO documents
with the appropriate Freedom of Information Act, FOIA,
exemption?
Ms. D'Agostino. Well, I guess we separate the two processes
that----
Mr. Shays. Put the mic a little closer to you.
Ms. D'Agostino. I am sorry.
Mr. Shays. No, I can hear you, but move it a little closer.
Ms. D'Agostino. OK. If you think about a document as having
a life cycle from the time it is created and marked by the
person who created it, you have one separate process that deals
with marking it to the time when, say, a FOIA request is made
and this document comes through a totally separate process to
be reviewed by a totally different group of people to determine
whether or not it can be released to the public.
So the marking is a handling advisory, cautionary, almost,
mode for this document that tells people, you need to be
careful with this information and handle it according to the
rules. Then there is a completely separate process to decide,
that is triggered by a FOIA request, whether or not this
information, regardless of how it is marked, is releasable to
the public, and the front-end process has no impact on the
process to decide to release the information. So if there is a
mistake made in the marking, or let us say it should have been
marked and wasn't marked, it has no bearing on the
decisionmaking that is done to release to the public under the
FOIA request.
This is why we do not believe that the Department of
Defense argument that it provided in its comments on this
particular recommendation is very strong.
Mr. Shays. OK. Mr. Rogalski, maybe just a response.
Mr. Rogalski. Sure. When we looked at the GAO
recommendation, we looked at the investment that they were
suggesting we do by having people make that FOIA exemption up
front when that FOUO determination is made. Some considerations
to that we looked at were, one, if that document was created in
1998 and then someone comes in with a FOIA request in 2005,
that FOIA exemption applied in 1998 may be different.
Therefore, we question what is the utility of having a FOIA
exemption placed on the document at the date of creation.
Second, our Office of General Counsel and the FOIA Office
felt that if there was some type of litigation, an improper
FOIA exemption was made on that, that could jeopardize anything
that came up in a litigation. So that was our rationale on why
we believe that we did not see the investment worth the return
for putting that FOIA exemption on at the date of creation of
that document.
Mr. Shays. Let me ask counsel to respond.
Mr. Halloran. Thank you. So the two rationale you pointed
out, if the document is not going to be given out, why mark it
at all at that point? If you are not going to specify why it
may be non-disclosable, don't you invite abuse?
Mr. Rogalski. Obviously, there is information in the
Department of Defense that does not meet any threshold for
being classified, but there is information that, based on the
Information Security Regulations deserves some type of
protection less of classification. What that does, it provides
a degree of protection for that information. It advises that
DOD employee, I just can't take this document, if it is
unclassified or not marked FOUO, now I can just put it on the
street, give it to a reporter, or whatever. So that FOUO
provides a gate, if you will, before that information can be
released. If it were not marked, then it presupposes you can
release it, even though in the Department we have a security
review for documents before they are released.
Mr. Halloran. It is a gate without any reference to why
there might be a gate, and the Department of Energy apparently
hasn't had the legal problems DOD fears, have you?
Mr. Podonsky. No.
Mr. Halloran. Because, as Ms. D'Agostino said, the FOI
review process as to what exemption it might apply for is an
absolutely separate and independent determination of what
someone might estimate when the marking is made. I just don't
see the legal peril it puts you in.
Mr. Rogalski. Well, fortunately or unfortunately, I am not
a lawyer, so I think I need to take that as a question for
record, have our FOIA office and our Office of General Counsel
take that question and get back to you with a response, if that
is suitable for you.
Mr. Shays. That would be fine. I would just like, before I
go to Mr. Kucinich and then the next panel, I would like some
observations from Mr. Weinstein and Mr. Leonard on what we have
just been talking about.
Mr. Weinstein. Which specific aspect, Mr. Chairman?
Mr. Shays. Just the questions that I have been asking. If
you have no reaction, then you don't have to respond.
Mr. Weinstein. I will pass to Mr. Leonard on that.
Mr. Leonard. The whole issue of ``Sensitive But
Unclassified,'' basically, from our perspective, there are two
broad categories. There are specific information that the
Congress has told executive branch agencies they must protect.
As a Federal employee, I am liable from sanctions or even
criminally for disclosure of certain kinds of Privacy Act
information, protected critical infrastructure information,
things along those lines. The list goes on and on where there
are statutorily based restrictions and a lot of that
information ends up with an FOUO designation on it, and in a
way, it is a notification to a Federal employee that, hey, this
is the stuff that you can be held subject to sanctions for if
you improperly disclose.
On top of that, there is another broad category of purely
discretionary information that agencies can withhold under the
FOIA if they choose, but they could also disclose. You know,
there is such a wide disparity of information covered under
this broad umbrella. Quite frankly, from someone who has almost
35 years' experience in the government, I have yet to be able
to comprehend it to the point where I am comfortable and I
think that is the biggest problem that the average Federal
worker has in terms of there is just such a wide array of
information that can be covered under this from different
perspectives that the impulse is, well, what can I get into
least trouble for?
Mr. Shays. One of the things that I thought when I was
elected to Congress when I had a briefing, that I would
actually learn something I hadn't read in the New York Times,
and I will never forget a Member of Congress, after being
briefed and we were told solemnly that this was classified and
so on, so the Member of Congress stood up and said, now this is
classified, this is classified, this is classified, and he had
about 10 items, and then he took a New York Times article and
just read it point by point and each one of those articles was
covered.
I have read some things that are designated ``Sensitive But
Unclassified'' that I think could be very awkward, not
embarrassing but awkward and uncomfortable and not appropriate
for someone to see, so I don't even want to imply that once in
a while, I haven't read things that say ``Sensitive But
Unclassified'' and think, gosh, this should be classified.
My general view is that we have an absurd system and I
think, Professor, you realize that we have some huge problems.
What we would like to do is we would like to augment what
others have done in terms of appraising this and come up with
some very concrete suggestions on how to reform this system.
Mr. Rogalski, I think to allow the employee to be able to
say something is classified and then say a supervisor, I mean,
the definition of a supervisor is kind of interesting and I
want to just understand that process more because it doesn't
seem logical to me that the system would be working this way.
So I think there has to be more to the story.
At any rate, Mr. Weinstein?
Mr. Weinstein. Just a few final thoughts, Mr. Chairman. I
am really looking forward to the completion of the audit and
getting that audit to you because the beginnings of any, I
think, serious assessment that the Congress can do might be--it
might be useful for your and your colleagues----
Mr. Shays. We will wait to do our report until after, but
we are going to combine the whole issue of classification with
civil liberties and a few other issues. The bottom line is, any
administration that wants more authority has to have more
oversight, and part of the oversight has to be that you have
access to information and that everything isn't just hidden
from the public and even Congress.
At this time, the chair would recognize Mr. Kucinich.
Mr. Kucinich. Thank you very much, Mr. Chairman I think the
chair is well spoken when he points out the inevitable
political character of the classification system, and his
comments are well taken when you consider that you can be told
in closed session certain things are classified and then read
about them the next day.
One of the reasons why I, as a Member of Congress, stopped
taking the so-called Secrecy Oath right after you take your
oath of office that enables you to go to the, ``classified''
briefings is that so many of the sessions I would go to, I
would end up reading the next day. But as a Member of Congress,
because I went to that session, I couldn't talk about it
because of the oath that I took with respect to the secrecy.
So there is an overtly political character to the control
of information, and I mentioned several examples in my opening
statement where both classification and declassification of
documents were done in an overtly political manner and I think
this was particularly evident with the memo written by former
Counterterrorism Chief Richard Clarke to Condoleezza Rice
warning about the al Qaeda threat that was made public right
before she testified to Congress on the administration's pre-
September 11th intelligence knowledge.
I would like to ask a few questions here. Mr. Podonsky, how
long have you worked for the Department of Energy?
Mr. Podonsky. Twenty-two years.
Mr. Kucinich. You are aware that the Department of Energy
was one of the first Federal agencies to re-review documents
that had already been released, particularly over allegations
of Chinese spying in the 1990's? Are you aware of that?
Mr. Podonsky. No, I am not aware of that.
Mr. Kucinich. OK. In your work at the Department of Energy,
did you ever have anything to do with the Wen Ho Lee case?
Mr. Podonsky. The answer is yes. We had an independent
oversight group go out for former Secretary Richardson to take
a look at what the circumstances were.
Mr. Kucinich. Was there any time at which classified
documents relating to that case were withheld from public
disclosure, said documents which may have been exculpatory of
Mr. Wen Ho Lee?
Mr. Podonsky. I believe I have third-party information that
says, yes, that is true, because there was an ongoing FBI
investigation.
Mr. Kucinich. See, that is what I mean about the inherent
political nature of classification. I would like to ask Mr.
Leonard, I also mentioned the case of Luis Posada Carriles and
the administration's justification of the NSA eavesdropping
program and the Harmony Program. What other examples do you
know of where the regular classification and declassification
processes have been ignored or misused for political reasons?
Any others you want to cite?
Mr. Leonard. There is a basic premise in the Executive
order that recognizes that information, even if it is
disclosure, could reasonably be cause to, or expected to cause
damage to national security, that information as a matter of
discretion for an agency head can, in fact, be declassified if
there is a compelling public interest to do so. The issue,
then, I guess, obviously becomes who determines what is the
public interest, and I think that is a responsibility that we
all have as government officials, but ultimately, I tend to
think that the public, then, will be the ultimate arbiter in
terms of what is in their interest or not.
Mr. Kucinich. There is another dimension there. It is not
just classification or declassification, it is redaction, as
well. You know, we haven't gotten into that too much, but with
a pen, you can change the character of something that is
released as being unclassified when actually the essential
nature of the communication is kept from the public or remains
classified. I mean, would you explain to me your concerns about
the policies regarding redaction?
Mr. Leonard. That is a very real concern. As a matter of
fact, there are some people who use that as an excuse not to
redact and instead withhold the document in its entirety for
that very reason. Redactions, without a doubt, if not properly
applied, can, in fact, change the gist of a document, can
change the gist of the information as conveyed, and can leave
the reader, at the very least, with an incomplete understanding
of what is being discussed in the record, and quite possibly
maybe even an incorrect understanding of what is in the record.
So redaction is a very important tool. Again, the alternative
is to withhold documents in their entirety, which I don't
believe would likewise serve the public well, and so it is a
tool that, when used properly, can be beneficial to all.
Mr. Kucinich. Let me ask you something. What possible
reason can you think of that documents from the 1940's and the
1950's still remain classified?
Mr. Leonard. Well, let me give you two examples. The
exemplars that were provided to me several months ago by the
group of historians, absolutely nothing was contained in those.
On the other hand, there is information even decades old--for
example, one of the things that is repeatedly recognized----
Mr. Kucinich. Well, 40 or 50 years ago, or 60 years ago.
Mr. Leonard [continuing]. Repeatedly recognized as a
shortcoming in our intelligence capability is the ability to
recruit human sources. To recruit human sources, we need to be
able to, as a government, as a Nation, to be able to assure
those individuals total and complete confidentiality, not just
today, not just tomorrow, but quite possibly for decades, and
that----
Mr. Kucinich. But forever kind of begins when you are dead,
right?
Mr. Leonard. Well, when you are asking someone to betray
their Nation, when you are asking someone to betray their
loyalty, when you are asking someone to put themselves not only
in physical jeopardy but quite possibly their family and maybe
even in some parts of the world their descendants, it is asking
a lot and the concern is, and I believe justifiable, is it
makes it increasingly difficult to recruit the human sources of
today that we so desperately need as a Nation unless we can, in
fact, assure them total and complete confidentiality for a
period that is reasonable.
Mr. Kucinich. I just would like to make a comment on this.
I know you have to get to the other panel. It seems to me what
drives this overall debate about classification and
declassification is not simply a question of where the pendulum
is swinging with respect to democracy or something less than
democracy. There is also a dimension of fear here.
You know, when Francis Scott Key wrote the ``Star Spangled
Banner,'' he drew an equation. He asked if the star spangled
banner yet waves over the land of the free and the home of the
brave. He drew a connection between freedom and bravery,
between democracy and courage. We have to remember who we are
as a Nation. We are forgetting the really fearless nature of
the American character which enables us to go about our
business without worrying about whether secrets are going to be
unearthed. We are kind of forgetting who we are as a country.
Mr. Weinstein. Could I make a comment? Thirty-one years
ago, I won what was probably one of the earliest Freedom of
Information Act lawsuits against the FBI for files of
historical interest, and my record on access issues is fairly
clear-cut all of my professional life as a historian. But I
have come to believe very strongly, as I think you and the
chairman and others do, that the real question is striking the
appropriate balance, that there are such things as legitimate
things that for periods of time should be kept secret, whether
it is scientific inventions or whatever, the identify of
American agents or whatever this would be, and that the real
issue becomes one of striking the balance.
One of your late colleagues who was a friend of mine and a
friend of yours, I am sure, Senator Moynihan, did a little book
on secrecy and pointed out some of the complexities of that
issue, and it is to this subcommittee's enormous credit that it
is trying to wrestle with these very complex issues and come up
with some good solutions.
But I think we would all agree, would we not, that there is
a balance that has to be drawn, that there are some things that
are not political, but that perhaps deserve for a period of
time the protection of legitimate national security
constraints. I say that with all respect. It is what we are
trying to do at the Archives, first of all, by getting the
facts out, and I can assure this subcommittee that it will have
every fact that we have at our command as soon as this report
is available.
Mr. Kucinich. I thank the gentleman. I would just like to
respond by thanking him for his service, but also pointing out
that it is becoming increasingly aware that secrecy is the
enemy of democracy.
Mr. Shays. Let me thank each of the witnesses and ask, is
there anything that you want to put on the record before we go,
a question that we should have gotten into that you wanted to
put on the record?
Mr. Leonard. The only thing I would like to add, Mr.
Chairman, is you mentioned oversight and the need for effective
oversight, and I couldn't agree with you more, especially from
an organization with the word in my name, title. But in any
event, I am pleased to remind folks that we now have a Public
Interest Declassification Board. It is up and running. It is
operational. It has five members appointed by the President. It
has four members appointed by the Hill leadership. The Board
had its first meeting several weeks ago. They are going to meet
again the first of April. From all indications, this is a group
that is intending to be very aggressive in all regards in terms
of exercising oversight.
One of the things that I would be remiss in not mentioning
is we are still two short of a full complement of membership.
Specifically, we have the five appointees from the President
and two out of the four from the Hill leadership. To the extent
we could get a full complement----
Mr. Shays. What are the two leaders that----
Mr. Leonard. One is from the Speaker and the other is from
the Senate Minority Leader.
Mr. Shays. We will contact both offices.
Mr. Leonard. I appreciate that very much, sir.
Mr. Shays. By tomorrow, we will contact both offices and
let them know we think that we need to move along.
I know each of you in your own ways are concerned about
this issue. First, to have the Archivist be willing to appear
not as a separate panel, to me demonstrates a very fine quality
which I want to thank you for being willing to participate. To
the others, given that you are in that capacity, I want to
thank our two government agencies because I know that both you
know we have problems and want this system to work well and
ultimately have the best interests of our country at heart. I
appreciate that, and obviously, I always appreciate the good
work of the Government Accountability Office, and Mr. Leonard,
thank you so much for your contribution.
The bottom line is, if you could help us make some
constructive suggestions, it would be to your best interest
because our suggestions might be followed and therefore it
would be nice that they be things that would make sense.
But the bottom line for me is we have to have more
openness. The majority of the American people are truthful.
They will have you do the right thing. When we hide so much
from the American people, we hurt them and I get mixed signals
from my own constituents because they don't have the facts that
they need to have. I think that is true for other Members, as
well.
So thank you all very much. I appreciate your participation
today. Thank you.
We are going to close with our second panel. It is Mr.
Thomas Blanton, executive director, National Security Archive,
George Washington University; Dr. Anna Nelson, distinguished
historian in residence, American University; and Mr. Matthew
Aid.
Mr. Rogalski, I just need to put on the record, you had
mentioned something about 30 percent reduction. You are going
to get the answer to that?
Why don't you stay standing so I can swear you in. Thank
you. Raise your right hands.
[Witnesses sworn.]
Mr. Shays. I would note for the record all three of our
witnesses responded in the affirmative.
We will start with you, Mr. Blanton. Obviously, your full
statement is in the record. My general practice is, if you are
the second panel, you get to have longer opening statements if
you choose. You had the length of the others. But if you also
deal with what you maybe heard in the first panel, that would
be helpful. Mr. Blanton.
STATEMENTS OF THOMAS S. BLANTON, DIRECTOR, NATIONAL SECURITY
ARCHIVE, GEORGE WASHINGTON UNIVERSITY, WASHINGTON, DC; ANNA K.
NELSON, DISTINGUISHED HISTORIAN IN RESIDENCE, AMERICAN
UNIVERSITY, WASHINGTON, DC; AND MATTHEW M. AID, WASHINGTON, DC
STATEMENT OF THOMAS S. BLANTON
Mr. Blanton. Mr. Chairman, thank you very much for having
us here. We are dealing with two of those ``Houston, we have a
problem'' problems, and there is a very interesting connection
between the two and my organization, the National Security
Archives, is right in the middle of it. We are the people who
filed that Freedom of Information request for that classified
memorandum that you just asked for and we hope to have a
sanitized version, the law said 20 working days, but we have
learned our lessons on waiting for that. But when we get one,
we will be glad to give one to you and see if the Freedom of
Information Act works faster than congressional agency
relations. Sometimes, it does.
But I wanted to point out one key point that no doubt you
saw when Congressman Waxman was asking questions of the
Archivist of the United States, that the Archivist of the
United States wasn't in charge of the reclassification process,
hadn't even known about it. That is an interesting signal
because it bears precisely on the problem that you focused on
on sensitive unclassified information. The agencies are in
charge.
The agencies rolled the National Archives at least four
times that I am aware of since 1996. The Department of Energy
went first, when they found some mistakes in the release of
information. According to Steve Garfinckel, Bill Leonard's
predecessor, most of those mistakes related not to nuclear
weapon design information, but rather to the obsolete cold war
locations of nuclear weapons overseas. But we as taxpayers have
spent tens of millions of dollars reviewing tens of millions of
pages--kind of a full-employment program for reviewers, to pull
out a few handfuls of items that might be useful to a Khadafi,
and that program, I think, needs more oversight, but it is a
paradigm of transparency compared to what the intelligence
agencies have pulled off at the National Archives.
They watched, I think, the Department of Energy do this
with the help of some amendments from Members of Congress and
decided, oh, we would like that prerogative, too. We would like
to go back and look at our own intelligence files, because
mistakes were made. You heard that immortal Washington phrase,
I think, earlier in the hearing today. ``Mistakes were made.''
Well, those mistakes, we now know because of what Matthew Aid
did in his research, those mistakes were of the variety, gosh,
we didn't get to look at that before it came out. That is our
document. We have an equity in that document, and that is a
huge problem, the same problem that we found on the ``Sensitive
But Unclassified.''
I just want to say here that our modus operandi is to file
Freedom of Information Act requests and try to hold the
government accountable, and so in answer to the questions that
you posed over a year ago at your first hearing entitled,
``Pseudo-Classifications,'' and we actually as a kind of
``imitation, the sincerest form of flattery,'' named our report
on the ``Sensitive But Unclassified'' program ``Pseudo-
Secrets.'' That is a tribute to you and this subcommittee. We
filed Freedom of Information requests over the last year with
40-some-odd different major Federal agencies that together
include more than 90 percent of the--95, 97 percent of the
Freedom of Information Act requests that get processed and we
got responses from most of them, but not all, and then we went
and supplemented that with a lot of Web research.
We now have data on 37 agencies and what their policies
actually are. You said earlier today that you had real trouble
getting numbers. In fact, we have some numbers on this
reclassification program. Fifty-five-thousand pages have been
pulled out. That is the good news. We at least know the
dimension of the problem. Nobody knows on ``Sensitive But
Unclassified.'' When you asked the agencies to tell you, they
said, oh, we can never figure that out. That would cost too
much, take too long. Nobody knows.
We thought at least through Freedom of Information requests
we could at least find out how many separate policies were
there and what was in those policies and how were employees
being trained and guided and instructed on labeling records,
and our conclusions are on page 6 of my prepared testimony and
I think they are a little dismaying and should be dismaying to
this subcommittee, and they are right on point to your
questions, Mr. Chairman.
In 37 Federal agencies, we found 28 different, distinct
policies governing ``Sensitive But Unclassified'' information
with little, if any, coordination between agencies. Even though
a lot of agencies shared the same words on their markings, like
``Official Use Only'' shows up a lot, ``For Official Use
Only,'' ``Official Use Only,'' whatever, but not the
guidelines, not the substance, not the internals of the
procedures. None of the agency policies showed any monitoring,
any oversight on the use or the impact of these policies. Only
eight of the agencies actually had authorization from statute
for their policy on ``Sensitive But Unclassified,'' sensitive
unclassified information.
Mr. Shays. And DOD would be one of them?
Mr. Blanton. That is correct. DOE, as well, actually, which
I think the GAO report very usefully points out. But, in fact,
if you look back in the appendix of our report, you will see
that DOD actually has three markings for sensitive unclassified
information. Two of them are authorized by statute, but the
other one is purely internal and that is the one that any
employee can use. DOE has two markings for sensitive
unclassified information. One of them is statutory. The other
one is purely internal and any employee can use it. You get
some really staggering notion of the dimension of the problem
if you have 2.5 million employees in the Department of Defense,
180,000 in the Department of Homeland Security.
None of the policies featured a challenge or appeal
mechanism for dealing with the markings, challenging the
markings on any of these documents. Only one of the policies
even contained a sunset, that a marking could only last for a
maximum of 10 years. It was really striking to me, because you
asked Mr. Leonard, what is the maximum sunset in the
Presidential Executive order on classification, ``Top Secret''
is for 10 years or a date certain. This is fascinating. You are
raising any employee can stamp document marking restriction to
the level of ``Top Secret'' in terms of its duration. It is
extraordinary.
Eight agencies effectively allow any employee to do this.
DOD and DHS are the two biggest.
Only 7 of these policies, 7 out of 28 policies, have the
kind of qualifier that is written into the Executive order that
says, you can't mark documents this way, you can't hide them in
this way if you are covering up embarrassment, malfeasance,
mismanagement, illegality, etc., only 7 out of 28.
Finally, 11 agencies report no policy at all on their
internal--we believe some of those agencies have such markings,
use such markings, but they have no policy at all.
The bottom line is of all this, I think you can conclude by
the diversity of policies and the lack of coordination and the
lack of any kind of commonality, the decentralized nature of
the administration, I think neither Congress nor the public can
tell for sure whether these kind of markings and safeguards are
actually protecting our security or being abused for
administrative convenience or cover-up. That is the bottom
line.
How would you fix it? You started last year. You started
asking agencies, how many are there? I mean, even to just get a
handle around the problem, poor GAO couldn't take on the whole
government. They had to just take on two departments and they
still don't know how many ``Official Use Only'' and ``For
Official Use Only'' documents there are. There could be
millions. There could be billions. We don't know.
Congress is going to have to order the agencies to report
it. That is the only way you get this data. We didn't get cost
data on classification until an amendment from the House of
Representatives went into the appropriations bills in 1994 and
1995 and said, agencies, report how much you are spending to
keep your documents classified, on safes, on clearances,
physical security, computer security, everything. That is how
we know today we are spending $7 billion on classification.
That is the kind of question that has to be asked. I think you
are going to have to legislate it. I think that is what you
have already found over the last year.
Second, you are going to have to set some limits. Good
parents set limits. Good congressional subcommittees set
limits. You are going to have to set some limits, and that
includes on the number of people who can put these kind of
markings on documents, and you have to set some limits like
sunsets, duration limits, and you are going to have to have
some kind of appeal mechanism, challenge mechanism for insiders
and outsiders for these kinds of markings. Otherwise, it is
totally out of control.
I think, third, you are going to have to move to rules
across agencies, common rules, common standards, common
criteria. You have to have that prohibition on using these
markings to cover up embarrassment, malfeasance, criminality,
because without that, even the internal reformers, and I count
a number of the people on that previous panel as internal
reformers, just don't have a lever against the overuse, against
the abuse, as your counsel asked.
I think those are the bottom lines on the ``Sensitive But
Unclassified'' information. I just want to finish with a
comment about the reclassification program, because I think the
commonalities here are pretty interesting.
Congressman Waxman mentioned a document on balloon drops
this morning from 1948, widely published. In my prepared
testimony, I had planned to just read out a sentence from that
document about how, don't do them in winter, you know,
unfavorable launch conditions, landing conditions, off-target
and people can't find the leaflets on the ground when there is
snow. But if I read that out, it would put everybody in the
room at legal jeopardy according to the No. 2 person in the
Department of Justice, Paul McNulty, who is bringing a
prosecution over in Virginia right now for unauthorized
possession of classified information.
This is the danger when the agencies get a hold of the
process and drive it. I think the same impetus that led to this
reclassification program is leading to that kind of
prosecution, that kind of vast overreach, invitation for
selective prosecution, invitation for abuse. It is just wrong
in a system that you have established minimum 50 percent is
over-classified.
So how do you stop a bureaucratic takeover? Well, the good
news is, out at the National Archives, we have a couple of good
examples of things that worked, things that changed the rules,
things that moved stuff out in the public record. Congresswoman
Maloney sponsored one of them on the Nazi War Crimes Act. Dr.
Nelson, to my left, was on the Kennedy Assassination Records
Review Board. Those processes worked to force documents out of
the government because, A, they had a law behind them; B, they
had an independent audit board to hold the agencies' feet to
the fire; and C, they set a different standard of review,
particularly for intelligence information, like those Nazi war
criminals who were hired.
Mr. Shays. Thank you----
Mr. Blanton. My last point is just simply if we don't
establish those mechanisms, then I will see you next year with
some new embarrassments from the front page.
Mr. Shays. Thank you very, very much.
[The prepared statement of Mr. Blanton follows:]
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Mr. Shays. Dr. Nelson.
STATEMENT OF ANNA K. NELSON
Dr. Nelson. I think I represent those kind of independent
historians, academic historians who don't have the resources of
the National Security Archives and rather depend upon them to
come up, because all we have is what we can find and what we do
research about and we do not ever go to court because we don't
have those funds. We really are very dependent upon the system.
I was very interested in reading the conclusion of the GAO
report, the first sentence. It begins with a statement that the
lack of clear policies, effective training and oversight can
lead to either over- or under-protection of sensitive but not
classified information. As I read it, I thought, this is a
statement that could apply to problems associated with
classified information. Certainly, the recent removal, this
reclassification that we have been talking about, is
illustrative of this point.
Because of these questions, I am afraid I have to return
you, Mr. Chairman, to the issue of reclassification because I
am a historian, a historian of American foreign relations. I
would like to bring up just two or three, maybe four, points.
The first point I would like to make is that those people
who protect national security documents invariably overreact to
current events, even though the records they protect are 25,
30, maybe 50 years old. That is the case of Wen Ho Lee, whom
Mr. Kucinich mentioned and others have mentioned. When he was
accused of passing information in 1998 and 1999, did an
extensive investigation that Mr. Blanton just mentioned
occurred under the Lott Act. It took an enormous amount of
time. It meant no other documents were being released. And you
have to bear in mind that these documents were once carefully
examined by Energy officials before being sent to open shelves
in the National Archives.
I know that the impression was left that other agencies let
these documents go, but for those of us who wait for
information with equities while they go to three or four
different agencies, including the CIA and the Department of
Energy, I am rather suspicious of that. I think that in every
instance, Energy people did see these documents, but to them
before the Wen Ho Lee case, they did not present a security
leak.
The same thing happened after the September 11th events. We
started this reexamination that has been the topic here of all
those thousands of pages of cold war era documents. They hold
information about a Soviet Union no longer in existence,
countries in the Soviet orbit that are now in NATO, policies
long abandoned. But the media began to talk about a great many
issues and the reexamination was, in fact, a result of current
concerns. What this is doing, of course, is reading history
backward.
There is a vast difference between leaks, between the
release of yesterday's confidential discussions, and 25 or 30-
year-old memorandums, and this kind of confusion that persists
persists to the detriment of the public and the Nation's
history.
Second, I would like to point out that there is a lack of
consistency. This goes with the fact that there aren't clear
policies. This lack of consistency comes because every single
President can amend the Executive order on security
classification, and for the most part, they do. In this
instance, President Bush only put in amendments to the Clinton
administration, but several of those amendments did change the
thrust of the Executive order.
The agency guidelines also vary, and again, sometimes
because current events intercede. One of the examples that has
been pointed out, I think by you, Mr. Chairman, was the issue
of that famous document where the Chinese came into the Korean
War but the President was told, indeed, the Chinese were not
out there. Of course, General MacArthur told him that. But the
CIA had published two documents in a volume in 1994, a volume
called ``The CIA Under Harry Truman,'' which contains that very
information, and many of us have been using it in the classroom
ever since.
Sometime between 1999 and 2006, the agency reclassified
these documents and the reason for this, of course, is a
mystery. Why? Is it necessary for purposes of national security
to close a 1951 document because of current policy issues with
North Korea? Is it necessary to close it because the CIA
doesn't want to admit old intelligence failures given the new
ones that have cropped up? In fact, the document may have been
reclassified simply because those examining the documents did
not know of the previous release, which is even worse.
But the questions I have asked, those questions I have
asked above, indicate a third problem with seemingly irrational
declassification. They breed notions of cover-up and
conspiracy. They further erode confidence in government
information.
Fourth, those of us who use national security records at
the National Archives know that whereas the government
distinguishes between confidential, ``Secret,'' and ``Top
Secret,'' the declassifiers generally do not. They certainly
treat all records that were originally classified secret and
top secret the same, and they often include those marked
``Confidential'' among those withdrawn with ``Secret'' and
``Top Secret.'' We have all seen that. An unanswered question
in the GAO report relates to this problem. Tom mentioned it.
How long will the ``Sensitive But Unclassified'' records be
sensitive and unclassified? The ``Official Use Only'' records,
are they ultimately going to be placed on the same footing as
classified records?
Without a clear answer, the Federal Government will be
establishing a new category of records headed for 20 or 30
years' stay in the security vaults at a great cost to the
American taxpayer. The records under these categories should be
clearly marked for opening within a short period of time. They
should be given a very short residence within the security
rolls.
As Tom mentioned, from 1994 to 1998, I was one of five
members of the Kennedy Assassination Records Review Board. We
all had ``Top Secret'' clearances and examined classified
records in their original form. Records we reviewed were over
30 years old. In the course of these 4 years, we released
countless documents that had been closed by the CIA, much to
their concern, including documents that discussed intelligence
methods. We protected some names, if people were dead, and we
agreed to protect certain symbols and technical information.
However, we sent thousands of pages of CIA, FBI, and even NSA
records to the open shelves of the National Archives. To my
knowledge, no foreign government protested, no one was killed,
and the intelligence agencies are still intact. Old records,
with few clear exceptions, do not threaten our national
security.
Thank you, Mr. Chairman.
Mr. Shays. Thank you very much, Dr. Nelson.
[The prepared statement of Dr. Nelson follows:]
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Mr. Shays. Mr. Aid.
STATEMENT OF MATTHEW M. AID
Mr. Aid. Thank you, Mr. Chairman. I will be brief. I
realize we are getting on in the day----
Mr. Shays. Don't say you will be brief. No one who has ever
said they will be brief has done so. [Laughter.]
When people say they will be brief, it is that they want to
be brief, but they won't be. I attended Rosa Parks' funeral,
and I am sorry, I am very sensitive about this, it lasted 7
hours. There were 50 speakers and every one of them said they
would be brief. [Laughter.]
So do you want to amend your comments?
Mr. Aid. Strike it from the record, please. [Laughter.]
Mr. Shays. OK. It is not in the record. Welcome, and it is
nice to have your testimony. You have the floor.
Mr. Aid. Thank you, Mr. Chairman. We Americans are willing
to make sacrifices, sometimes at the cost of our civil
liberties, to help ensure that nothing like the tragic events
of September 11th ever happens again. Even this middle-aged
intelligence historian of dubious repute was willing to make
some sacrifices because that is what I have sometimes preached
in my writings on intelligence issues.
But then a few months ago, as you are now aware, I
discovered that elements of the Department of Defense and the
U.S. intelligence community were engaged in a secret historical
document reclassification program at the National Archives that
had its origins back in 1999, and now I find myself in the
position where I can't help but wonder what the U.S. Government
officials designated to protect us have been doing since
September 11th with the American taxpayers' money.
The question foremost in my mind is, has the
reclassification by the Pentagon and the CIA of these 55,000
pages of historical documents, all of which are 25 years old or
older, made America any safer in the post-September 11th era,
and my answer is I tend to doubt it. Could the millions of
dollars and tens of thousands of man hours expended to date on
this classified program have been better spent elsewhere,
especially at a time when many deserving programs in the United
States are being cut in order to fund the ongoing conflicts in
Iraq and Afghanistan? Again, I firmly believe that the answer
is yes.
Were the fiscal and manpower resources that should have
been dedicated to declassification, as mandated by Executive
Order 12958, hijacked and used instead to reclassify 50-year-
old documents that a small minority of U.S. Government security
officials didn't want in the public realm, or is this document
reclassification program nothing more than a gravy train for
out-of-work security personnel, as one Pentagon official has
described it to me?
Finally, if we agree that this document reclassification
program was a waste of time and taxpayers' money, how do we
ensure that it never happens again? I fear that if this program
and others like it are allowed to continue unchecked, we will
end up revisiting this issue over and over again for the
foreseeable future, for who is to say next month or next year
which document some agency of the U.S. Government may choose to
take exception to and demand its withdrawal from the public
shelves?
I found that the wolves have even started feeding on
themselves. I discovered this Friday afternoon that in 2004,
the CIA security screeners began withdrawing a significant
number of historical documents from their agency's own paper
records that were originally declassified by the CIA in 1997
and deposited at the National Archives, and it again appears
that they were withdrawn because they contain criticism of how
the agency was being run, written by senior CIA officials.
Apparently, the CIA security officials who withdrew the
documents in 2004 took grave exception to what their colleagues
in 1997 had chosen to release to the public.
If this is all true, my question is, where will it all end?
Thank you, Mr. Chairman.
Mr. Shays. I thank all three of you.
[The prepared statement of Mr. Aid follows:]
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Mr. Shays. You were actually very brief.
Mr. Aid. Thank you.
Mr. Shays. I won't be able to say that no one who says that
is ever brief, so I resent that deeply. [Laughter.]
I am going to have counsel start off.
Mr. Halloran. Thank you, Mr. Chairman.
Mr. Aid, what made you go back and look? I mean, my
understanding was you were looking for documents, looking in
places where documents you had previously accessed and found
them not there. What made you go back for a second peek?
Mr. Aid. You should understand, sir, that I am not a
professional historian in the sense that, unlike Dr. Nelson and
Mr. Blanton, I am a 20-year businessman who dabbles in history
as a passion. I find that as I get older, I make more mistakes
which requires that I go back and back and back to the same
records to see things which, if I was 20 years younger, I would
have spotted the first time around.
One of the problems with being an intelligence historian is
that there is no basis, there is no foundation upon which I, as
a historian, can revert back to, because I write about the
National Security Agency. Outside of one or two books and a
smattering of articles, there is nothing for me to refer back
to. So I find that what I am writing is a jigsaw puzzle. I have
to go back to the records constantly, because the first time I
went through them 10 years ago or 20 years ago, I guarantee you
I didn't understand the import of what I was looking at at the
time. That is why I went back in the fall of this year to
reexamine some of those same State Department records which I
looked at back in 1996.
Mr. Halloran. In the course of your research, and this goes
for all of you, in the course of your research in the Archives,
had you run across withdrawn items before, a reference to
somebody had pulled this for some classification reason?
Mr. Aid. If you live and work at the National Archives, you
live with withdrawal slips, many of which date back to when the
documents were first released to the public. The first instance
I ran into suggesting that something untoward was taking place
in the post-September 11th era, meaning recent withdrawals,
came in 2004, I believe it is, when I noticed that a number of
records that I had already printed out from the CIA's data base
of declassified documents had disappeared from the computer
data base.
Now, the problem with digital records is there is no place
where you can put a withdrawal slip and say, oh, sorry, the CIA
has decided that these records were inadvertently released and
deserved to be classified. Being a native New Yorker, I went
and complained loudly and longly and here I am 3 years later
and I still haven't gotten the records, much less the CIA
willing to admit that the records once existed.
Dr. Nelson. We all have run into withdrawal slips. We run
into them all the time. The most records that have been
reviewed have been the Nixon papers, Kissinger and Nixon, and I
had one occasion when I had at least six or eight boxes on a
cart from the National Archives and not a single document,
nothing but withdrawal sheets.
There is also a change in the character of those sheets.
They used to be much more explicit. ``So-and-so'' sent a memo
on a certain date. No. Now they don't say that, for the most
part. I understand the Archives is going to try to go back to
that, because the view was we wouldn't ask for FOIA if we
didn't know. But, in fact, we ask for more FOIA because we
don't know. I mean, it may be a date we don't want, but we will
ask for it because we don't know.
Mr. Halloran. While I have you, I can't resist the
opportunity to ask if you would help inform our consensus on
the extent of over-classification. Having reviewed the Kennedy
assassination documents, how much never should have been
classified at all of what you saw?
Dr. Nelson. Well, we had a board of five people and I was
the only one who had ever used FOIA. They were eminent
historians and an archivist and a very good lawyer, who is now
a Federal judge. But here you had five civilians in a very
unusual situation of being able to declassify and we all agreed
each time. We never disagreed over what should be hidden
because most of it did not make sense at all. It was just
absurd. Occasionally, we would black out three little letters
at the top of a piece of paper----
Mr. Halloran. But as to the initial decision to classify,
initially, back when----
Dr. Nelson. They should never have been classified.
Mr. Halloran. At all?
Dr. Nelson. But----
Mr. Halloran. Eighty percent of what you saw? Fifty
percent? I mean----
Dr. Nelson. Oh, I would say 80 percent of what we saw, and
I think the important thing is that they are now open. I might
add that I understand that the reclassifiers did go to that
collection and ask to look at it and they were told that
collection was there under congressional statute, which is what
created the board, and they would not let them in.
Mr. Halloran. Mr. Blanton, are you familiar with the
argument that was made with regard to this reclassification
operation that there were certain notifications or processes
not followed because this wasn't a reclassification, this was,
in effect, an un-declassification? We have to follow that. Is
that your understanding of what was happening there?
Mr. Blanton. That, frankly, and I guess we should abolish
the use of the word ``frankly'' in congressional hearings as
well as the ``I will be brief,'' right? [Laughter.]
Isn't that the most overused single word probably in all
testimony?
Mr. Shays. But at least it is more accurate.
Mr. Blanton. It is an excuse the agencies are giving to get
around a requirement that is somewhat onerous, and deliberately
so, in the Executive order, because to reclassify something,
you actually have to go get Bill Leonard's and the Information
Security Oversight Office's approval. It gets checked out.
There are big countervailing forces, checks and balances. There
is none if what you can say, oh, this was an inadvertent
release and so it is not really declassified, even if, as in
the case of the balloon document, it is published in a book in
1,000 libraries and on the World Wide Web and you can search
for it and find it and read it to your kids so they will be in
unauthorized possession of classified information.
It is an excuse. It is a semantic game. Unfortunately, they
have some good lawyers and they like to play those semantic
games and they are trying to get around ISOO's oversight. I
think that is really the bottom line.
Mr. Halloran. On the SBU side, Mr. Leonard in his testimony
made an argument, as did some others, as did you, on the need
to try to standardize these SBU formats and regulations. Give
us a sense from your studies today how difficult that would be.
How wide a range is there? I mean, some have no regulations.
Some have very detailed ones. How difficult in terms of
individual agency equities and even statutory lanes they travel
in would it be to craft--or are there enough common elements
that it would not be overwhelmingly difficult to standardize
SBU processes and rules?
Mr. Blanton. I suspect that there are some common elements
that are just plain common sense. Why can't the sensitive
unclassified area have the same prohibitions that the
classified area has on covering up criminality, malfeasance,
embarrassment? That is just common sense. I would bet that a
statute that the Congress came up with would be hard to argue
against that, although people would drag their feet.
There are some common elements like that. The ideas of
duration--that was one of the big reforms in the 1990's in the
classification system, the idea that at the point of
classification, you have to put a sunset on the thing or it is
going to live forever. There will be new mountains of FOUO and
OUO documents down the road.
So I think there are a number of common elements. I think
Bill Leonard has recommended some of them. We have put a few in
our specific study where we think these are common sense
matters that shouldn't be objectionable because they already
apply in the classification world.
Now, I have to caution you, they will not solve the
problem. Common sense is not going to solve the problem. We
have massive over-classification in the classification world
even with all these common sense checks and balances and a
full-time audit agency and Federal judges that look at it and
OMB that is reporting the cost figures and so forth, and ISCAP
[ph.], which is a very useful appeals panel, that kind of
challenge structure, an interagency challenge structure that
pushes back against some of these kind of classifications. You
need all those things, but you probably need something more.
Mr. Halloran. Thank you.
Mr. Shays. If you had been in my position, what would you
have asked the witnesses that preceded you? Let me start with
you, Mr. Aid. Who would you have asked, and what would you have
asked?
Mr. Aid. Where to begin. Actually, I thought, Mr. Chairman,
you and the other members of the subcommittee did a very good
job of probing the most important aspects of the
reclassification program, which is why is this thing a secret?
One of the questions I would have asked is you had the
representatives of the Department of Energy and the Department
of Defense sitting right where I am today. Why is it that the
Department of Energy can issue an annual report giving full
details about its document reclassification efforts, the number
of documents that it has removed, the types of information that
it has found, and basically give you, the Members of Congress
who fund the Department of Energy, and us, the members of the
public, some reassurance that what they are doing is reasonable
and competent and that they actually are protecting U.S.
national security?
What disturbs me about this unnamed component of the
Department of Defense Memorandum of Understanding and the
separate CIA effort is that it is all done in secrecy. It is
all done in the dead of night. There is no accountability. The
fact is that----
Mr. Shays. So what would you have asked them?
Mr. Aid. I would have asked them, why was it done in
secrecy? Why, if the program is legitimate, as they claim, I
mean, if they say that the Executive order allows agencies to
withdraw material because they own the classification on the
paper, then why do you have to keep it a secret? I mean, at its
most basic level, there is something--I guess in the legal
profession you would call it the smell test. Does the way the
agencies, the way they behave, does it rise to the level of
sounding fishy, or does it seem perfectly rational, even in the
post-September 11th world we live in?
Mr. Shays. What would you have asked, Dr. Nelson?
Dr. Nelson. Well, I think I would have turned my attention
perhaps to the Archivist. I think that it is clear he was not
there when this started. He has only been there about a year.
But I think that one of the things I would have asked him is
what the Archives can do about getting a little more authority
and about standing up to certain agencies, and also perhaps
reaching out to Congress to help them do that.
Mr. Shays. That would have been a great question, I agree.
Do you think that they need more authority, or do you believe
they have inherent authority they are not exercising?
Dr. Nelson. Well, I think that in the case of general
Federal records, they may not be using all they have, but I
think in security classified, I think ``Sensitive But
Unclassified'' and ``For Official Use'' and that sort of thing,
I think they probably need more authority because they don't
have very much power and they are not trusted, and yet they are
the most trustworthy people in the world----
Mr. Shays. Not trusted by whom?
Dr. Nelson. Not trusted by the agencies, and yet they are
so trustworthy that when the agencies asked the archivists who
work in the Archives not to talk about this reclassification
business, they didn't. Otherwise, we would have known about it
much earlier.
Mr. Aid. Right. I can confirm that. This is actually one of
the few agencies I have run into in my experience that actually
knows how to keep a secret.
Dr. Nelson. They have to.
Mr. Blanton. They have a lot of them.
Dr. Nelson. They have a lot of secrets, you know. They have
all kinds of Watergate secrets. They have all kinds of
Clinton----
Mr. Shays. I see the smile on your face like--I was
thinking, Mr. Aid, that I was going to ask you, is it kind of
like mining for gold? When you go in there, you are looking for
something that is--you said this is your avocation instead of
your vocation and you said you loved history. I am a history
major in college, and your face lights up with the joy of it,
and I am seeing you, Dr. Nelson, all of a sudden describe there
is Watergate and there is this and it is almost like, my gosh,
is this like the best-kept secret? I mean, should we all be
going in to look at these documents? [Laughter.]
Dr. Nelson. Well, we can't look at any of those documents
because they are still in the vault, but yes, I think for those
of us who do this kind of work and feel it is worthwhile and
many of us take it into the classrooms----
Mr. Shays. Right.
Dr. Nelson. And it sinks down to the public through
textbooks ultimately. I think we do think that it is important,
but we also obviously----
Mr. Shays. So when you look at a document that is
particularly significant, maybe changes people's view of what
happened in the past, then that is an opportunity for you to
publicize it and share it with others and----
Dr. Nelson. It is very rare that one document, of course,
will do it, and that is why historians spend so much time at
the National Archives and in Presidential libraries to do
American history. But, in fact, I think you are right in that
we do see documents that do change our views. I will give you
an example. People write memoirs. Government officials write
memoirs. It is very interesting to see the documents when they
come out. The memoirs are wrong. We have perhaps been teaching
out of those memoirs, or the American people have believed
certain things out of the memoirs. When you get right down to
it, the memoirs might be a lie. There might be lies within them
because the documents----
Mr. Shays. And you determine that by the information you
have seen at the Archives?
Dr. Nelson. In the documents.
Mr. Shays. Yes. Mr. Blanton, what would you have asked?
Mr. Blanton. I would just say one caveat. The documents
lie, too.
Dr. Nelson. Oh, yes.
Mr. Blanton. They only have one real virtue, which is they
are frozen in time----
Dr. Nelson. That is right.
Mr. Blanton [continuing]. Unlike memory and memoirs and so
forth, and therefore----
Mr. Shays. Give me an example of----
Mr. Blanton [continuing]. I think it is a cross-check.
Dr. Nelson. Only the transcripts of telephone conversations
really don't lie.
Mr. Blanton. Well, I mean, you are missing that tone, but I
would say the two questions--[laughter]--the two questions, Mr.
Chairman, the two questions I would have asked, I think one is
a question to Mr. Leonard and Mr. Weinstein, which is if the
agencies don't join in and don't agree in their National
Declassification Initiative, what are they going to do now?
They might need you to come to their rescue. This is this
idea----
Mr. Shays. Give me an example of what you mean.
Mr. Blanton. What they are trying to do----
Mr. Shays. When you say ``agencies,'' give me these
agencies you would be describing.
Mr. Blanton. They called a summit of the intelligence
agencies. They named a couple of them and they didn't name the
other ones. They didn't name the Department of Defense
component that has the secret memoranda that we are all after.
Mr. Shays. Right.
Mr. Blanton. But they called a summit of these folks last
week, and what was interesting, the release the National
Archives put out after the summit had a wonderful clarion call
for cleaning up this program in the top half of the document,
including a call for a National Declassification Initiative,
which would, like the Nazi War Crimes Interagency Working
Group, like the Kennedy Assassination Records Board, like what
was done for Congress on the Iran-Contra investigation, put the
agencies all at the table, all at the National Archives with
the Information Security Oversight Office looking over their
shoulder, holding their feet to the fire, making a real
classification effort happen without this daisy chain of
referrals and I get it next.
Well, they brought the people to the summit. They issued
this clarion call. But I noticed that the clarion call only
really had Mr. Leonard and Mr. Weinstein's name on it and that
the agencies were below the fold, in newspaper parlance, you
would say, after the call for a declassification initiative.
Then you see, and the agencies all agreed there was a problem
and agreed to work with us to help solve it. But they are not
signing on. So what do you do next if they don't agree?
On SBU, the sensitive unclassified, I think the question I
would have asked to Mr. Rogalski of the Department of Defense,
you have, what did he say, 2.5 million people who can slap
``For Official Use Only'' onto records? What is stopping him
from cutting that number? I mean, I think the Department of
Defense only has 2,000-and-something people who are authorized
as original classifiers in the classification system. Would
that help or would that not?
Mr. Shays. I would have loved to have asked that question.
I would love to know his answer.
Mr. Blanton. I don't know. I encourage you to send him a
letter. [Laughter.]
Mr. Shays. That would have been a great question.
Mr. Blanton. It will take him about 6 months to answer my
letter. He will do it quicker to you.
Mr. Shays. What would you like to put on the record that is
not on the record right now?
Dr. Nelson. I would like to put on the record something
about equities.
Mr. Shays. Move the mic a little closer, Dr. Nelson.
Dr. Nelson. I would like to put something on the record
about equities. Equities are the devil behind the words that
everyone else is talking about, because the reason these
intelligence agencies, the Department of Defense and such, have
gone in is because they are protecting what they call their
equities. In fact, most of the records that were closed were
State Department records and State was not there. Equity is the
devil of all of us who look for information.
I have a request that has been there in the National
Archives for at least a year and a half, maybe two, and I was
just told that it had been sent out to three agencies and they
hadn't heard from it. Equities are the problem, and therefore,
I agree with Tom Blanton. You have to have some kind of an
initiative to bring these agencies together so that everything
on the subject is declassified without going through this whole
business. It is the worst part of the system. It allows them to
come back and reclassify and it keeps the rest of us waiting
years for old, old documents.
Mr. Shays. Anyone else? Any other comment from either of
you?
I am grateful that you all are doing what you are doing.
You are doing very important work. What I also like is you came
to enjoy it and you have a sense of humor, which I also
appreciate. I guess you have to have a sense of humor in this
business, don't we.
Mr. Blanton. Amen.
Mr. Shays. So thank you all very much, and with that, we
will adjourn this hearing.
[Whereupon, at 4:55 p.m., the subcommittee was adjourned.]
[The prepared statement of Hon. Todd Russell Platts and
additional information submitted for the hearing record
follows:]
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