[Congressional Record Volume 144, Number 19 (Tuesday, March 3, 1998)]
[Senate]
[Pages S1249-S1253]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       THE GOVERNMENT SECRECY ACT

  Mr. LOTT. Mr. President, I am pleased to join with the distinguished 
Minority Leader, the distinguished Chairman of the Foreign Relations 
Committee and with the distinguished Senator from New York, Mr. 
Moynihan. Both Senator Moynihan and Senator Helms served with 
distinction on the Commission on Protecting and Reducing Government 
Secrecy. They are to be congratulated for their efforts. Senator 
Moynihan and I have spoken repeatedly about his commitment to 
declassifying information while protecting legitimate secrets.
  S. 712, the Government Secrecy Act of 1997, is a complex piece of 
legislation. Chairman Thompson has already held a hearing in the 
Governmental Affairs Committee. Other committees have legitimate and 
appropriate concerns about elements of this legislation, including 
Foreign Relations, Judiciary, Armed Services and the Select Committee 
on Intelligence on which I serve as an ex officio member. Their 
concerns should be addressed as we move through the legislative 
process.
  I also have a number of concerns that I hope are addressed as the 
committees consider this legislation. I am concerned about allowing 
judicial review of executive branch classification decisions. I do not 
think it is wise or necessary to allow judges to second-guess

[[Page S1250]]

classification decisions. I am concerned about cost--the cost of 
classification and the cost of declassification. I hope we can arrive 
at a legislative outcome that reduces the cost of both. I am concerned 
about creating a new layer of bureaucracy in an already overly 
bureaucratic process. It is the agencies themselves that should retain 
the authority to declassify documents. I am most concerned that we give 
priority to protecting intelligence sources and methods rather than to 
a vague and subjective ``public interest'' test. We need to ensure that 
originating agencies are expressly involved in any declassification 
process to avoid the mistakes that have recently been made. I also hope 
there is adequate authority for agencies to meet their legitimate 
budgetary and source-protection concerns.
  I am confident that the deliberative process of committee 
consideration will address my concerns and the legitimate concerns 
expressed by the Defense Department, the intelligence community, and 
others. I know that the Director of Central Intelligence testified last 
month that he wants to sit down with Senator Moynihan and address those 
concerns in such a way that we protect sources and methods while 
opening more old intelligence files to the serious researcher and the 
general public. I hope that this process of committee consideration can 
be completed this spring and that we can expeditiously schedule floor 
time for legislation addressing this important issue.
  I want to close with a special tribute to Senator Moynihan's 
diligence in this effort. He is not just motivated by the fact that too 
much information is classified and is kept secret too long. He is also 
motivated by a scholar's desire to know the truth, and by the 
historian's desire to fully explain past events. I salute his efforts 
and share his concerns. Openness is important in our democracy. In the 
words of the Secrecy Commission, chaired by Senator Moynihan, ``Secrecy 
is a form of government regulation . . . some secrecy is vital to save 
lives, bring miscreants to justice, protect national security, and 
engage in effective diplomacy . . . National Security will continue to 
be the first of our national concerns, but we also need to develop 
methods for the treatment of government information that better serve, 
not undermine, this objective.'' In the words of Chairman Moynihan 
himself: ``It is time also to assert certain American fundamentals, 
foremost of which is the right to know what government is doing, and 
the corresponding ability to judge its performance.'' I could not agree 
more.
  I look forward to continuing to work with Senator Moynihan and others 
in enacting legislation on government secrecy this year.
  Mr. DASCHLE. I thank the Majority Leader for raising this important 
issue and am pleased to join him as a co-sponsor of the Government 
Secrecy Act. I look forward to working with him, the other co-sponsors 
of the bill, and the relevant committees to move this legislation early 
in this session. Although some modifications to this legislation may be 
necessary, I think we can all agree that a democratic government 
depends on an informed public. This legislation will greatly improve 
access to government information. By reducing the number of secrets, 
this legislation will enhance the public's access while at the same 
time enabling the government to better protect information which is 
truly sensitive.
  As the Majority Leader mentioned, for the past five decades, the 
secrecy system has been governed by a series of six Executive Orders, 
none of which has created a stable system that protects only that 
information deemed vital to the national security of the United States.

  Mr. MOYNIHAN. I thank the two leaders for their support and welcome 
them to an effort that began in the 103rd Congress with the adoption of 
P.L. 103-236, establishing the Commission on Protecting and Reducing 
Government Secrecy. This bi-partisan commission, which I had the 
privilege of chairing, and on which Senator Helms played an important 
role, issued its unanimous report last March. The Commission found that 
the current system neither protects nor releases national security 
information particularly well.
  Mr. HELMS. Mr. President, I thank the distinguished leaders, but I am 
also deeply grateful to the able senior Senator from New York. For too 
long the government has classified information which has no business 
being classified. When I came to the Senate, I was a member of the 
Armed Services Committee and I remember that I went to many classified 
briefings, only to be informed, in great detail, of everything that was 
in the New York Times and Washington Post that morning. The most 
frustrating thing was that we could not talk about the information from 
those meetings because it was classified.
  Mr. MOYNIHAN. The central fact is that we live today in an 
information age. Open sources give us the vast majority of what we need 
to know in order to make intelligent decisions. Analysis, far more than 
secrecy, is the key to security. Decisions made by people at ease with 
disagreement and ambiguity and tentativeness. Decisions made by those 
who understand how to exploit the wealth and diversity of publicly 
available information, who no longer simply assume that clandestine 
collection, i.e. ``stealing secrets'', equates with greater 
intelligence.
  We are not going to put an end to secrecy. It is at times legitimate 
and necessary. But a culture of secrecy need not remain the norm in 
American government as regards national security. It is possible to 
conceive that a competing culture of openness might develop which could 
assert and demonstrate greater efficiency.
  Mr. HELMS. The Commission by law had two goals: to study how to 
protect the important government secrets while simultaneously reducing 
the enormous amount of classified documents and materials. We began our 
deliberations with the premise that government secrecy is a form of 
regulation, and like all regulations, should be used sparingly. But I 
feel obliged to reiterate and emphasize the obvious. The protection of 
true national security information remains vital to the well-being and 
security of the United States.
  Mr. MOYNIHAN. I agree with the Senator. One of the important 
recommendations of the Commission was a proposal for a statute 
establishing a general classification regime and creating a national 
declassification center. The four Congressional members of the 
Commission, Representatives Combest and Hamilton, Senator Helms, and I, 
proposed just such a statute last May, the Government Secrecy Act, 
S.712.
  Mr. DASCHLE. In deciding that we needed to design a better, more 
rational classification system, I was moved by the fact that under the 
current system we are classifying an enormous amount of information 
each and every year. For example, in 1996 alone, the Federal Government 
created 386,562 Top Secret, 3,467,856 Secret, and 1,830,044 
Confidential items: a total of 5,789,625 classification actions.
  Mr. MOYNIHAN. Last year the number of officials with the authority to 
classify documents originally decreased by 959 to 4,420. Presumably, 
this should reduce the number of classifications, but the number of 
classifications increased by nearly two-thirds, over 5.7 million. There 
cannot be 5.7 million secrets a year which, if revealed, would cause 
``damage'' to the national security. To paraphrase Justice Potter 
Stewart's decision regarding the Pentagon Papers, when everything is 
secret, nothing is secret.
  Mr. DASCHLE. In addition to costing the taxpayer billions annually, 
this excessive government secrecy leads to a host of other problems. 
Secrecy hampers the exchange of information within the government, 
leads to public mistrust, and makes leaking classified information the 
norm.
  I think it would be useful at this point to note that this 
legislation will not require the disclosure of a single document or 
fact deemed vital to our national security. Instead, this legislation 
will prevent the government from stamping ``Classified'' on information 
that is not sensitive.
  The Clinton administration has made significant reforms to open 
government information. For example, last month, Secretary of Energy 
Federico Pena announced that he would seek to end the practice that 
considered all atomic weapons information as ``born

[[Page S1251]]

classified'' and instead would only classify ``where there is a 
compelling national security interest''. The Department of Energy is to 
be commended for its efforts in recent years to make available 
information concerning nuclear tests conducted in this country and 
their effects on human health and the environment. This is a useful 
step. However, as the statistics I cited above for 1996 make clear, 
there is still much more to be done.

  Mr. MOYNIHAN. Such efforts are welcome and should be encouraged. 
However, to ensure that they are carried out across the government and 
in a sustained manner, our Commission proposed that legislation be 
adopted.
  Mr. DASCHLE. Greater Congressional oversight of classification policy 
is long overdue. For too long, classification and declassification 
policy have been both developed and implemented by bureaucrats, often 
anonymously. Consideration of the Government Secrecy Act, S.712, will 
promote an open discussion of the advantages and disadvantages of 
secrecy, a discussion which is not limited to the views of those who 
are charged with implementing classification policy.
  Mr. MOYNIHAN. If the Report of the Commission on Protecting and 
Reducing Government Secrecy is to serve any large purpose, it is to 
introduce the public to the thought that secrecy is a mode of 
regulation. In truth, it is the ultimate mode, for the citizen does not 
even know that he or she is being regulated. Normal regulation concerns 
how citizens must behave, and so regulations are widely promulgated. 
Secrecy, by contrast, concerns what citizens may know. The citizen is 
not told what may not be known.
  With the arrival of the New Deal agencies in the 1930s, it became 
clear that public regulation needed to be made more accessible to the 
public. In 1935, for example, the Federal Register began publication. 
Thereafter all public regulations were published and accessible. In 
1946, the Administrative Procedure Act established procedures by which 
the citizen can question and even litigate regulation. In 1966, the 
Freedom of Information Act, technically an amendment to the original 
1946 Act, provided citizens yet more access to government files.
  The Administrative Procedure Act brought some order and 
accountability to the flood of government regulations that at time bids 
fare to overwhelm us. Even so, ``over-regulation'' is a continuing 
theme in American life, as in most modern administrative states. 
Secrecy would be such an issue, save that secrecy is secret. Make no 
mistake, however. It is a parallel regulatory regime with a far greater 
potential for damage if it malfunctions.
  Mr. DASCHLE. One of the most striking aspects of the Commission 
report is the lack of Congressional involvement in the secrecy system. 
Apart from the Espionage Act of 1917 and the Atomic Energy Act, which 
only applies to atomic secrets, there are few statutes dealing with 
these issues. If secrecy is a form of regulation, then this legislation 
will serve a similar purpose to the Administrative Procedure Act for 
the secrecy system.
  And there has been little Congressional oversight. I believe the 
Commission on Protecting and Reducing Government Secrecy, which Senator 
Moynihan chaired, is only the second statutory examination of the 
secrecy system.
  Mr. MOYNIHAN. That is correct--there has been only one other 
statutory inquiry into this subject. This was the Commission on 
Government Security, established in 1955 by the 84th Congress, known as 
the Wright Commission for its Chairman, Lloyd Wright, past President of 
the American Bar Association. This was a distinguished bipartisan body, 
which included in its membership Senators John C. Stennis of 
Mississippi and Norris Cotton of New Hampshire, along with 
Representatives William M. McCulloch of Ohio and Francis E. Walter of 
Pennsylvania.
  The Commission report, issued 40 years ago, is a document of careful 
balance and great detail. The Commission was concerned with 
classification as a cost. Free inquiry, like free markets, is the most 
efficient way to get good results. The Commission set forth a great 
many proposals ranging from Atomic Energy to Passport Security, but its 
legislative proposals were concise: the proposal to outlaw by statute 
``disclosures of classified information. . . by persons outside as well 
as within the Government'' was quickly perceived as prior restraint: 
press censorship. The response was swift and predictable. The 
recommendation was criticized strongly in articles and editorials in a 
variety of newspapers, notably by James Reston. And the Commission's 
recommendations were dropped.
  Mr. DASCHLE. The Government Secrecy Commission has learned from 
history and issued much more prudent proposals. Some individuals have 
raised constitutional concerns regarding this legislation, but the 
Government Secrecy Act (S. 712) respects the President's constitutional 
prerogatives by maintaining the authority of the President to establish 
categories of classified information and procedures for classifying 
information. The precedent for Congressional action has already been 
established by the Atomic Energy Act, the Espionage Act, and the 
National Security Act.
  Mr. MOYNIHAN. The Government Secrecy Act will provide a framework for 
our secrecy system which can limit the number of documents initially 
classified and significantly reduce the backlog of already classified 
documents. It sets standards for declassification whereby information 
may not remain classified for longer than 10 years unless the head of 
the agency which created the information certifies to the President 
that the information requires continued protection. Information not 
declassified within 10 years may not remain classified for more than 30 
years without another certification. It requires that a balancing test 
be established in making classification and declassification decisions 
so that officials must weigh the benefit from public disclosure of 
information against the need for initial or continued protection of the 
information under the classification system.
  The bill also establishes a national declassification center to 
coordinate and oversee the declassification policies and practices of 
the Federal Government to ensure that declassification is efficient, 
cost-effective, and consistent.
  I thank the Majority Leader for raising his concerns. It is my 
sincere intention to work with the Majority Leader and other interested 
Senators to perfect this legislation, so that we might pass it in the 
coming months.
  Mr. SHELBY. Mr. President, I rise because I have some grave concerns 
with the current form of the Government Secrecy Act of 1997 (S. 712) 
and I am pleased that the distinguished Majority Leader and my 
distinguished colleagues are open to a discussion of this legislation 
with the goal of establishing the basic principles on which Federal 
classification and declassification programs are to be based. More 
stability, reliability, and consistency are needed in the government's 
approach to both the protection--and I emphasize protection--as well as 
the release of classified information to the public. The recent 
compromise of sensitive information through rushed declassification 
highlights the need for more oversight and accountability of the 
declassification process. I have serious concerns that S. 712 does not 
adequately protect sensitive intelligence sources and methods and will 
unnecessarily cost the taxpayers many hundreds of millions of dollars.
  I support the Commission on Government Secrecy's finding that the 
public has a right of access to the large majority of government-held 
information and that, in general, too much information is classified 
and kept secret too long. However, secrecy is essential to 
intelligence, and U.S. security has depended and still depends on 
secrecy to succeed. We must proceed with caution in our commitment to 
make more classified information available to the public. In this 
regard, I am concerned that some provisions of S. 712 erode the 
Director of Central Intelligence's statutory authority and ability to 
protect intelligence sources and methods.
  Further, the bill will cost untold millions to declassify and release 
the tremendous amount of currently classified material in a way that 
still protects the most sensitive sources and methods. For example, DOD 
reports to have over 1.2 billion pages of 25 year and older material of 
historical value that requires review for declassification. The current 
estimated average cost of

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review is $1 a page. This means that the cost of declassification of 
this group of documents alone will be over $1.2 billion--that's billion 
with a ``B'', Mr. President.
  I am also concerned that the so-called Declassification Center 
created in S. 712 will not correct the problems facing the current 
declassification system. It will end up being another costly and 
unnecessary government bureaucracy. Instead, to promote greater 
accountability, I propose that we create a more effective and enhanced 
Executive branch oversight function for classification and 
declassification programs. In addition, I believe sanctions for 
unauthorized disclosures should be added to the bill. We need to 
consider new and unique categories of secrecy for our most sensitive 
intelligence operations--perhaps to include very serious penalties for 
public discussion of these activities.
  Finally, I am troubled that the bill leaves open the possibility of 
judicial review of Executive branch classification decisions. This will 
undoubtedly lead to costly legal challenges that could result in 
judicial second-guessing of the Commander-in-Chief on national security 
matters.
  I look forward to addressing these and other concerns in our 
Committee. Our collective goal should be to craft legislation that 
establishes a sensible framework for a classification and 
declassification system that continues to protect sources and methods 
while improving oversight and accountability at an affordable cost.
  Thank you, Mr. President.
  Mr. KERREY. Mr. President, for Americans government secrecy is a 
paradox. In a democracy, it's an unusual action for us to decide to 
keep something secret from the public, because it's their government. 
What we do is for the people. It's carried out in their name. So it's 
unusual to do the public's business in secret.
  There is only one legitimate reason for our government to keep 
something secret from its citizens: To keep America safe. As Vice 
Chairman of the Senate Select Committee on Intelligence, I have been 
exposed to many things that, if made public, would threaten the 
security of our citizens and our nation. But I have also seen valuable 
information unnecessarily kept from the public view. Which is why I 
support this effort to change the way our government classifies and 
declassifies its information.
  Secrecy is the exception, not the rule, in these matters for a number 
of reasons. The first and foremost is that this is government of, by 
and for the people. The second stems from that old adage ``sunshine is 
the best disinfectant''. We do a better job in the open, where our 
ideas and actions are subject to the test of scrutiny, criticism and 
feedback, than we do in secret. And third, because information we 
gather belongs to the people, we should make sure information they can 
use--in their own lives, in their own businesses, and, most important, 
in making decisions as citizens in a democracy--is provided to them 
when we can make it available without compromising our safety.
  We make the unusual decision to keep things secret for a reason: 
Because those secrets help to keep Americans safe. Our government 
classifies information to help protect our citizens and preserve the 
security of our nation. When the Director of Central Intelligence goes 
to the President or to Congress to tell us of the threats our nation 
faces, he can do so because there are men and women around the globe 
risking their lives to provide our nation's leaders with the 
information they need to protect our country. Whether the intelligence 
deals with foreign leaders, terrorists, narcotics traffickers, or 
military troop movements, our government needs to keep certain 
information secret or our nation's security will suffer.
  Yet much of the information on foreign countries collected by our 
Intelligence Community can and should be shared with the American 
people. With the growth of open source information and widespread 
availability of information technology, the American public is also 
increasingly a consumer of intelligence. We live in a very complex 
world, with intertwining relationships between nations shaped by 
history and culture. It is difficult for policymakers--those of us who 
study foreign policy, who have access to classified information and 
analysis, and who receive detailed government briefings--to get the 
information we need for an informed view on foreign policy issues. Our 
citizens have an even more limited amount of information available to 
help them understand what occurs outside our nation's border. Which is 
why I believe the more information the American public has with which 
to understand foreign policy the better.
  Mr. President, we need to continue to protect ``sources and 
methods'', a term of art which refers to the people working to collect 
intelligence and the means by which they do so. Yet, when we acquire 
information whose release will not threaten sources and methods, or 
have information so dated that the people and means used to collect it 
are no longer in jeopardy, the government should release this 
information to the public.
  We must act this year to reverse a fifty year trend and reduce 
government secrecy, including intelligence secrecy. The classification 
system has been regulated by executive order for five decades, with new 
executive orders contradicting previous ones and producing new costs 
for all agencies involved. What is or is not a secret should not be 
subject to a change in political leadership. Congress should place in 
statute the concept of what is or is not classified information, and 
provide general standards for classifying and declassifying 
information.
  Mr. President, Congress bears some of the responsibility for the 
status of our nation's classification policy. The Commission on 
Protecting and Reducing Government Secrecy was not able to find a 
single example of a congressional hearing on the issue of executive 
branch secrecy policy. At the very least, Congress needs to improve its 
oversight of this issue. As part of this effort, the Senate Select 
Committee on Intelligence is scheduled to hold a hearing on this issue 
later this year.
  Senators Moynihan and Helms have shown great leadership in addressing 
the issue of governmental secrecy. Their work on the Secrecy Commission 
has helped provide the Senate with the necessary context and analysis 
of government secrecy we need to address this issue. Their legislation 
S. 712, the Government Secrecy Act of 1997, goes a long way towards 
outlining a balanced government policy which protects the most 
sensitive information while allowing the public access to as much 
information as possible.
  In my discussions with Director of Central Intelligence George Tenet, 
I have learned that the Intelligence Community does have concerns with 
the current version of S. 712. The CIA's concerns include their desire 
that the originator of classified information be in charge of its 
declassification, and that the classification and declassification 
process not be subject to judicial review. I look forward to working 
with Senators Helms and Moynihan, with Director Tenet, and the 
Administration to develop legislative language which meets the twin 
goals of keeping America safe and ensuring our government responds to 
the needs of its citizens for information.

  Because the Department of Defense and the Central Intelligence Agency 
are responsible for the vast majority of information that requires 
classification, I believe the committees responsible for oversight of 
these entities--the Senate Armed Services Committee and the Senate 
Select Committee on Intelligence--should have the opportunity to review 
S. 712. I hope that such a sequential referral can be arranged.
  Mr. President, we seek legislation that is in balance. We seek 
secrecy legislation which protects the safety of our citizens and the 
security of our nation, but also ensures that our government's 
policies, actions, and information will be as open as possible to its 
citizens. We must help keep America safe, while also assuring that our 
actions truly reflect those of a government of, by and for the people. 
I look forward to the challenge. I yield the floor.
  Mr. THOMPSON. Mr. President, I appreciate the attention being given 
to the Government Secrecy Act, S. 712, by Senator Lott and Senator 
Daschle. I also wish to commend Senators Moynihan and Helms for the 
hard work they have put into this issue as Senate members of the 
Commission on Protection and Reducing Government Secrecy.

[[Page S1253]]

  To review the entire secrecy system, Congress established the Secrecy 
Commission in 1994. Last year, the Commission issued its final report. 
The Governmental Affairs Committee held a hearing on the Commission's 
recommendations when they were first issued. Among the recommendations 
of the Commission was establishing a statutory basis for our secrecy 
system. Apart from nuclear secrets, there has never been a coordinated 
statutory basis for establishing and maintaining government secrets. 
Consequently, there is little coordination among agencies on how 
information is determined to be secret, little accountability among 
classifying officials, and little Congressional oversight of the 
government's secrecy activities.
  The Commission also described how the secrecy system functions as a 
form of government regulation, imposing significant costs on the 
government and the private sector. It is time to begin reviewing these 
costs and identify which secrets really need to be kept and which do 
not. Like other areas of government regulation, we need to inject a 
cost/benefit analysis into the process to be sure that those secrets we 
do keep are worth the cost.
  The Government Secrecy Act is an issue of good government reform that 
needs consideration by Congress. I intend to work with Senator Glenn, 
the Ranking Member of the Governmental Affairs Committee, to report an 
amended S. 712 very soon. The United States needs a secrecy system that 
does a better job of identifying those secrets which truly must be 
kept, and which then can truly keep them secret.
  Mr. GLENN. Mr. President, I concur that this is an important issue 
that our Committee takes very seriously. We held a hearing on the 
Commission's report last year, and I know that the Chairman has wanted 
to return to this matter this year.
  The question of establishing a statutory framework for classification 
and declassification has long been a matter of debate. Our own 
committee held extensive hearings on this subject in 1973 and 1974.
  The current system is governed by Presidential executive order, and, 
as the Majority Leader noted, this has led over time to inconsistencies 
in policies and procedures. Some have questioned, however, whether 
legislation is needed. I believe that it is proper for Congress to 
legislate on this subject, while of course still respecting the 
authority of the President in this area. This principle of shared 
authority was recognized in the passage of the Atomic Energy Act, the 
Espionage Act, and the National Security Act. If Congress acts now to 
establish a statutory classification and declassification system, we 
should take a similarly balanced approach.
  Balance is also needed in our approach to considering the legislation 
in the Senate. While S. 712 has been properly referred to our 
committee, the Committee on Governmental Affairs, the bill raises 
important issues of interest to the Select Committee on Intelligence, 
the Armed Services Committee, and the Committee on Foreign Relations. I 
am fully committed to working with each of these committees as the bill 
moves forward.

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