[Congressional Record Volume 144, Number 23 (Monday, March 9, 1998)]
[Senate]
[Pages S1561-S1564]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           CLASSIFIED AND RELATED INFORMATION DISCLOSURE ACT

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
proceed to the consideration of S. 1668, which the clerk will report.
  The legislative clerk read as follows:

       A bill (S. 1668) to encourage the disclosure to Congress of 
     certain classified and related information.

  The Senate proceeded to consider the bill.
  The PRESIDING OFFICER. There will now be 20 minutes of debate on the 
bill, equally divided, with no amendments or motions in order.
  The Senator from Alabama is recognized.
  Mr. SHELBY. Mr. President, I rise today to urge my colleagues to 
support the passage of S. 1668, the Disclosure to Congress Act of 1998.
  This legislation directs the President to inform employees of the 
intelligence community that they may disclose information, including 
classified information, to an appropriate oversight committee of 
Congress when that information is evidence of misconduct, fraud, or 
gross mismanagement.
  The committee is hopeful that this legislation will also encourage 
employees within the intelligence community to bring such information 
to an appropriate committee of Congress rather than unlawfully 
disclosing such information to the media, as happens from time to time.
  It is imperative that individuals with sensitive or classified 
information about misconduct within the executive branch have a ``safe 
harbor'' for disclosure where they know the information will be 
properly safeguarded and thoroughly investigated.
  Further, employees within the intelligence community must know that 
they may seek shelter in that ``safe harbor'' without fear of 
retribution.
  It is not generally known that the Whistle Blower Protection Act does 
not cover employees of the agencies within the intelligence community.
  The whistle blower statute also expressly proscribes the disclosure 
of information that is specifically required by Executive order to be 
kept secret in the interest of national defense or the conduct of 
foreign affairs.
  In other words, classified information is not covered by the current 
whistle blower statute.
  Therefore, employees within the intelligence community are not 
protected from adverse personnel actions if they choose to disclose 
such information to Congress.
  In fact, an employee who discloses classified information to Congress 
without prior approval is specifically subject to sanctions which may 
include reprimand, termination of a security clearance, suspension 
without pay, or removal.
  Last year, the Senate Select Committee on Intelligence reported the 
Intelligence Authorization Act for Fiscal Year 1998 which included 
section 306, a provision with language similar to the bill before you.
  Section 306, however, was much broader than the language in this bill 
because it directed the President to inform all executive branch 
employees that it would not be contrary to law, regulation, executive 
order, or public policy to disclose certain information, including 
classified information, to an appropriate committee or their own Member 
of Congress.
  The Senate passed that bill by a vote of 98 to 1.
  Shortly after the Senate vote, the administration issued a Statement 
of Administration Policy claiming that section 306 was unconstitutional 
and that if it remained in the bill, in its present form, senior 
advisers would recommend that the President veto the bill.
  Last year, in conference, members of the House Permanent Select 
Committee on Intelligence also expressed concern over the 
constitutional implications of section 306.
  Our House colleagues were also mindful of the administration's veto 
threat as expressed in the Statement of Administration Policy.
  In response to their concerns, the Senate offered an amendment that 
significantly narrowed the scope of the provision to cover only 
employees of agencies within the intelligence community, as does this 
bill.
  The amendment offered in conference further narrowed the provision by 
allowing disclosure only to committees with primary jurisdiction over 
the agency involved.
  In deference to our colleagues' concerns, however, our committee 
agreed to amend the provision to express a sense of the Congress that 
the Congress and executive branch have equal standing to receive this 
type of information.
  In conference, members of both committees committed to hold hearings 
in the second session of the 105th Congress with the intent to fully 
examine the constitutional implications to such legislation and to 
pursue appropriate legislative remedy.
  Our committee fulfilled our obligation by holding hearings on 
February 4 and 11.

[[Page S1562]]

  The committee heard from constitutional scholars and legal experts on 
both sides of the issue.
  An administration representative argued that section 306 and any 
similar language represents an unconstitutional infringement on the 
President's authority as Commander in Chief and Chief Executive.
  The administration asserted the following:

       The President as Commander in Chief, Chief Executive, and 
     sole organ of the Nation in its external relations has 
     ultimate and unimpeded authority over the collection, 
     retention, and dissemination of intelligence and other 
     national security information.
       Therefore, any congressional enactment that may be 
     interpreted to divest the President of his ultimate control 
     over national security information is an unconstitutional 
     usurpation of the exclusive authority of the Executive.
       Finally, the Administration argues that the Senate's 
     language vests lower-ranking personnel in the Executive 
     Branch with a ``right'' to furnish such information to a 
     Member of Congress without prior official authorization from 
     the President or his designee. Section 306 and any similar 
     provision is, therefore, unconstitutional.

  The committee also heard from constitutional scholars that argued 
that the President's authority in this area is not exclusive.
  Hence, Congress also has the authority to regulate the collection, 
retention, and dissemination of national security information.
  Their argument was as follows:

       A claim of exclusive authority must be substantiated by an 
     explicit textual grant of such authority by the Constitution.
       There is no express constitutional language regarding the 
     regulation of national security information as it pertains to 
     the President.
       Therefore, the President's authority to regulate national 
     security information is an implied authority flowing from his 
     responsibilities as Commander in Chief and Chief Executive.
       As the regulation of national security information is 
     implicit in the command authority of the President, if is 
     equally implicit in the broad array of national security 
     authorities vested in the Congress by the Constitution. In 
     fact, Congress has legislated extensively over a long period 
     of time to require the President to provide such information 
     to Congress.
       Therefore, Congress may legislate in this area because the 
     Executive and Legislative Branches share constitutional 
     authority to regulate national security information.
       This legislation is also constitutional because it does not 
     prevent the President from accomplishing his constitutionally 
     assigned functions and any intrusion upon his authority is 
     justified by an overriding need to promote objectives within 
     the constitutional authority of Congress.

  The committee found the latter argument to be persuasive and 
determined that the Administration's intransigence on this issue 
compelled the committee to act.
  The bill before you is a modified version of section 306, but still 
directs the President to inform employees and contractors of the 
covered agencies that it is not prohibited by law, executive order, or 
regulation to disclose to the appropriate committee, information that 
the employee reasonably believes to provide direct and specific 
evidence of, one, a violation of any law, rule, or regulation; two, a 
false statement to Congress on an issue of material fact; three, gross 
mismanagement, a gross waste of funds, a flagrant abuse of authority, 
or a substantial and specific danger to public health or safety.
  This bill is intended to ensure that members receive information only 
in their capacity as a member of the committee concerned.
  The committee fully appreciates the need to protect national security 
information, particularly information that might reveal sensitive 
intelligence sources and methods.
  Therefore, it is critical that classified information received by a 
member of one of the appropriate committees be protected in accordance 
with that particular committee's rules.
  The Intelligence Committee, for example, must follow a very strict 
procedure before any classified information could be disclosed to the 
public.
  Accordingly, a member is not free to accept classified information as 
a member of a committee unrestrained by such rules or to withhold 
knowledge of the information from the committee's leadership.
  When individual Members are entrusted with classified information, 
they may not pick and choose what role they wish to play in an attempt 
to circumvent their responsibility to safeguard our nation's secrets. 
We cannot disregard our obligations, under Senate rules, in order to 
serve our own political interests.
  If a Senator is not a member of one of the applicable committees and 
is approached by an employee from the intelligence community, it is the 
hope of the Intelligence Committee that the member would direct the 
employee to the appropriate committee so that the employee would enjoy 
the full protection of this legislation.
  The various national security committees enjoy a long history of 
trust with the executive branch and this bill is intended to prevent a 
member or members from inadvertently or intentionally spoiling that 
record.
  This bill further directs the President to inform such employees that 
members of the appropriate committees have a ``need to know'' and are 
authorized to receive such information.
  This language is consistent with the argument propounded by the 
administration in a brief that it filed in the Supreme Court in 1989, 
namely that

       . . . the president has uniformly limited access to 
     classified information to persons who have a need to know the 
     particular information, such as a congressional committee 
     having specific jurisdiction over the subject matter.

  There is no question that the appropriate committees need this type 
of information to effectively perform their oversight responsibilities 
and the administration seems to agree that these committees have a 
``need to know.'' Our only disagreement is over the means by which this 
type of information is brought to the attention of Congress.
  In accordance with Executive Order No. 12,958, classified information 
must remain under the control of the originating agency and it may not 
be disseminated without proper authorization.
  Consequently, an executive branch employee may not disclose 
classified information to Congress without prior approval. In fact, 
employees are advised that the agency will provide ``access as is 
necessary for Congress to perform its legislative functions. . . .''
  In other words, an executive agency will decide what Members of 
Congress may need to know to perform their constitutional oversight 
functions.
  We believe that Members of Congress are best positioned to decide 
what they need to know.
  If an employee must secure prior authorization before they can bring 
evidence of wrongdoing to an appropriate committee, we may never get 
the opportunity to make that assessment.
  Therefore, this legislation is critical if we are to effectively 
discharge our constitutional obligations.
  I urge my colleagues to support this bill as they did last year and 
send a clear message to the President that the United States Congress 
will not be subject to the whims of a Chief Executive that may wish to 
withhold evidence of wrongdoing in the name of national security.
  Mr. President, before I yield the floor, I send to the desk a 
Congressional Budget Office cost estimate for S. 1668, and I ask 
unanimous consent that it be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1668

 A Bill to Encourage the Disclosure to Congress of Certain Classified 
and Related Information--As Reported by the Senate Select Committee on 
                   Intelligence on February 23, 1998

       The bill would require the President to inform certain 
     federal employees and contract employees that they may 
     disclose classified and unclassified information to 
     Congressional oversight committees if they believe the 
     information provides direct and specific evidence of 
     wrongdoing. CBO estimates that the costs of implementing S. 
     1668 would not be significant because the number of employees 
     covered by the bill would be small and the cost associated 
     with each notice would be minimal. Because the legislation 
     would not affect direct spending or receipts, pay-as-you-go 
     procedures would not apply.
       The bill contains no intergovernmental or private-sector 
     mandates as defined in the Unfunded Mandates Reform Act of 
     1995, and would not affect the budget of state, local, or 
     tribal governments.
       The CBO staff contact for this estimate is Dawn Sauter, who 
     can be reached at 226-2840. This estimate was approved by 
     Robert A. Sunshine, Deputy Assistant Director for Budget 
     Analysis.

  Mr. KERREY addressed the Chair.

[[Page S1563]]

  The PRESIDING OFFICER. The Senator from Nebraska is recognized.
  Mr. KERREY. Mr. President, I rise in strong support of S. 1668, a 
bill to require the President to inform Executive Branch employees it 
is legal for them to bring information to Congress regarding 
wrongdoing, even if the information has been classified by an Executive 
Branch official.
  Some of my colleagues may be surprised that the Intelligence 
Committee, which reported this bill after long discussion and study, 
finds such legislation necessary. Members are aware that the principle 
of a government employee's right to directly inform Congress has been 
in statute for eighty six years, and was reinforced in this decade by 
the Whistleblower Protection Act. What may be less well known is that 
the Whistleblower Protection Act specifically exempts the principal 
agencies of the Intelligence Community from the requirements of that 
law. In addition, successive administrations have held that where 
classified information of wrongdoing is concerned, Executive Branch 
officials will decide what portion of the information will be shared 
with Congress, and how, when, and with whom in Congress it will be 
shared. The Administration believes the control of classified 
information lies solely with the President and his designees. They base 
this belief on the President's role as Commander in Chief.
  In current practice, an employee of the Executive Branch with 
classified information about wrongdoing has the option of informing his 
or her superior, or the inspector general of the department or agency. 
The employee also has the option of making a report to the Attorney 
General. In my view, this is insufficient. Members, especially those 
who have served on the Armed Services Committee or the Intelligence 
Committee, can visualize cases in which the classified information of 
wrongdoing is so sensitive that an employee will fear to take any of 
the avenues now available. He or she may fear for their career if they 
inform their boss or their Inspector General prior to informing 
Congress. In some rare circumstances they might even fear for their 
safety. Yet today such employees have no other legal recourse.
  The ability of government employees to bring information to Congress 
should be our first concern in this matter. But we should also be 
concerned about the rights of Congress and the ability of Congress to 
do the job the Constitution requires. Congress also has important 
national security responsibilities.
  Congress, not the President, raises armies and maintains navies. 
Congress, not the President, calls out the militia. Congress, not the 
President, declares war. Congress therefore has the right to national 
security information, and in fact Congressional committees in the 
national security and foreign policy fields have been successfully 
working with and storing this information for many years. In addition, 
Congress' annual responsibility to authorize and appropriate funds for 
national security and foreign policy purposes, and its continuing 
responsibility to oversee how those funds are spent, gives Congress a 
need to know which justifies its access to information. For these 
reasons, the Administration's arguments for their exclusive control 
over classified information ring hollow. I should add that according to 
CIA Director Tenet, Congress does a better job keeping the secrets 
entrusted to it than does the Executive Branch. So an argument that 
Congress should not be trusted with sensitive information is baseless.
  Mr. President, I recognize the Administration argument is based on a 
requirement, as they see it, to defend Presidential prerogatives. In 
fact, the Clinton Administration has been more open in informing 
Congress on intelligence matters, including instances of wrongdoing, 
than any of its predecessors. Some Administration of the future might 
classify a report to deny Congress the facts, but not this one. So my 
support for this legislation is not based on concern about a particular 
Administration. It is based on my concern for the ability of government 
employees to inform Congress, and on the ability of Congress to play 
its role in keeping America safe. Given the responsibilities of 
Congress and its record in keeping classified information secure, there 
is no reason why whistleblower protection statutes should not also 
apply to classified information. In voting for this bill, my colleagues 
are voting for their own right to do their job.
  Mr. President, I yield such time as is necessary to the Senator from 
New Jersey.
  The PRESIDING OFFICER. The Senator from New Jersey is recognized.
  Mr. TORRICELLI. Mr. President, I thank the Senator from Nebraska for 
yielding.
  Mr. President, there is nothing more fundamental to a democratic 
government than the oversight of executive responsibility by the 
Congress. It is, indeed, the essence of an accountability of power that 
this Congress has access to information and the people who hold it. 
That exercise of congressional power requires the truthful testimony of 
personnel in the executive branch of the Government. In no area is this 
more important than in issues of national security, because, 
ultimately, it is this Congress that holds the power of war and peace 
and the responsibility to raise funds for the national defense. But in 
recent decades, the intelligence agencies of this Government have 
become the exception in this accountability of power--an exception by 
statute in the Whistle Blower Protection Act and, perhaps more 
fundamentally, by the culture of governance in the Government itself.
  Tragically, one of the best examples was a former assistant in the 
Latin American Bureau of the State Department, Richard Nuccio, who came 
to me, as a Member of the House of Representatives, to report what he 
believed to be illegal activity. At the time, I served as a member of 
the Intelligence Committee of the House of Representatives. What Mr. 
Nuccio imparted to me was criminal conduct. Information that, by 
statute, was to be reported to the Intelligence Committee had been 
omitted. In the months and years that followed, the President of the 
United States expressed outrage. The Central Intelligence Agency 
conducted an investigation and the rules were changed. Mr. Nuccio paid 
a price with his intelligence clearance, and ultimately with his 
career. It appeared that no real lesson had been learned at all.

  Last year Senator Shelby and Senator Kerrey provided real protection 
to executive employees if they come to this Congress with the truth. I 
have rarely been prouder of two Members of this institution, nor more 
disappointed in the President of the United States. He threatened to 
veto the change.
  Mr. President, I rise because I am extremely grateful to Senator 
Shelby and Senator Kerrey for their leadership. Indeed, they were 
joined by all 19 members of the committee. As a result, I believe that 
the intelligence community not only will not be weakened, but it will 
be strengthened. The best protection against abuse of their authority 
or, indeed, violations of the law, is the knowledge that Federal 
employees will be protected if they come to this Congress to report 
such activities.
  The occurrence of illegal acts will not be concealed by classifying 
them or by carefully omitting them in a notification requirement of 
this Congress.
  The best means I know is assuring the intelligence community that it 
retains the confidence of this Congress and our people.
  This legislation is a real contribution to this Congress. Mostly it 
is a real contribution to the accountability of power that is so 
important in our democratic system.
  Mr. President, I yield the floor.
  Mr. SHELBY. Mr. President, how much time remains on our side?
  The PRESIDING OFFICER. The Senator from Alabama has 3 minutes 30 
seconds.
  Mr. SHELBY. How much time remains for the other side?
  The PRESIDING OFFICER. The Senator from Nebraska has 1 minute 8 
seconds.
  Mr. SHELBY. Mr. President, I yield our time, and I understand the 
Senator from Nebraska does also.
  Mr. KERREY. Mr. President, I ask unanimous consent to yield the 
remainder of my time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SHELBY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?

[[Page S1564]]

  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  The PRESIDING OFFICER. The bill having been read the third time, the 
question is, Shall the bill pass? On this question, the yeas and nays 
have been ordered, and the clerk will call the roll.
  The assistant legislative clerk called the role.
  Mr. NICKLES. I announce that the Senator from Indiana (Mr. Coats) is 
necessarily absent.
  Mr. FORD. I announce that the Senator from California (Mrs. Boxer), 
the Senator from Illinois (Mr. Durbin), the Senator from Ohio (Mr. 
Glenn), and the Senator from Oregon (Mr. Wyden) are necessarily absent.
  I further announce that the Senator from Vermont (Mr. Leahy) is 
absent on official business.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced--yeas 93, nays 1, as follows:

                      [Rollcall Vote No. 24 Leg.]

                                YEAS--93

     Abraham
     Akaka
     Allard
     Ashcroft
     Baucus
     Bennett
     Biden
     Bingaman
     Bond
     Breaux
     Brownback
     Bryan
     Bumpers
     Burns
     Byrd
     Campbell
     Chafee
     Cochran
     Collins
     Conrad
     Coverdell
     Craig
     D'Amato
     Daschle
     DeWine
     Dodd
     Domenici
     Dorgan
     Enzi
     Faircloth
     Feingold
     Feinstein
     Ford
     Frist
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kempthorne
     Kennedy
     Kerrey
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Levin
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Mikulski
     Moseley-Braun
     Moynihan
     Murkowski
     Murray
     Nickles
     Reed
     Reid
     Robb
     Roberts
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Warner
     Wellstone

                                NAYS--1

       
     Cleland
       

                             NOT VOTING--6

     Boxer
     Coats
     Durbin
     Glenn
     Leahy
     Wyden
  The bill (S. 1668) was passed, as follows:

                                S. 1668

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. ENCOURAGEMENT OF DISCLOSURE OF CERTAIN INFORMATION 
                   TO CONGRESS.

       (a) Encouragement.--
       (1) In general.--Not later than 30 days after the date of 
     enactment of this Act, the President shall take appropriate 
     actions to inform the employees of the covered agencies, and 
     employees of contractors carrying out activities under 
     classified contracts with covered agencies, that--
       (A) except as provided in paragraph (4), the disclosure of 
     information described in paragraph (2) to the individuals 
     referred to in paragraph (3) is not prohibited by law, 
     executive order, or regulation or otherwise contrary to 
     public policy;
       (B) the individuals referred to in paragraph (3) are 
     presumed to have a need to know and to be authorized to 
     receive such information; and
       (C) the individuals referred to in paragraph (3) may 
     receive information so disclosed only in their capacity as 
     members of the committees concerned.
       (2) Covered information.--Paragraph (1) applies to 
     information, including classified information, that an 
     employee reasonably believes to provide direct and specific 
     evidence of--
       (A) a violation of any law, rule, or regulation;
       (B) a false statement to Congress on an issue of material 
     fact; or
       (C) gross mismanagement, a gross waste of funds, a flagrant 
     abuse of authority, or a substantial and specific danger to 
     public health or safety.
       (3) Covered individuals.--The individuals to whom 
     information described in paragraph (2) may be disclosed are 
     the members of a committee of Congress having as its primary 
     responsibility the oversight of a department, agency, or 
     element of the Federal Government to which such information 
     relates.
       (4) Scope.--Paragraph (1)(A) does not apply to information 
     otherwise described in paragraph (2) if the disclosure of the 
     information is prohibited by Rule 6(e) of the Federal Rules 
     of Criminal Procedure.
       (b) Report.--Not later than 60 days after the date of 
     enactment of this Act, the President shall submit to Congress 
     a report on the actions taken under subsection (a).
       (c) Construction With Other Reporting Requirements.--
     Nothing in this section may be construed to modify, alter, or 
     otherwise affect any reporting requirement relating to 
     intelligence activities that arises under the National 
     Security Act of 1947 (50 U.S.C. 401 et seq.) or any other 
     provision of law.
       (d) Covered Agencies Defined.--In this section, the term 
     ``covered agencies'' means the following:
       (1) The Central Intelligence Agency.
       (2) The Defense Intelligence Agency.
       (3) The National Imagery and Mapping Agency.
       (4) The National Security Agency.
       (5) The Federal Bureau of Investigation.
       (6) Any other Executive agency, or element or unit thereof, 
     determined by the President under section 2302(a)(2)(C)(ii) 
     of title 5, United States Code, to have as its principal 
     function the conduct of foreign intelligence or 
     counterintelligence activities.

  Mr. SHELBY. Mr. President, I move to reconsider the vote.
  Mr. LOTT. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. DOMENICI addressed the Chair.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Is it in order for me to proceed for 2 minutes as in 
morning business?
  The PRESIDING OFFICER (Mrs. HUTCHISON). Without objection, it is so 
ordered.

                          ____________________