[Congressional Record Volume 144, Number 140 (Thursday, October 8, 1998)]
[Senate]
[Pages S11902-S11907]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 1999--CONFERENCE REPORT

  Mr. NICKLES. Mr. President, I ask unanimous consent that the Senate 
now turn to the consideration of the conference report to accompany 
H.R. 3694, the intelligence authorization bill.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The clerk will report.

       The committee on conference on the disagreeing votes of the 
     two Houses on the amendment of the Senate to the bill (H.R. 
     3694), have agreed to recommend and do recommend to their 
     respective Houses this report, signed by all of the 
     conferees.

  The PRESIDING OFFICER. Without objection, the Senate will proceed to 
the consideration of the conference report.
  (The conference report is printed in the House proceedings of the 
Record of October 5, 1998.)

[[Page S11903]]

  Mr. SHELBY. Mr. President, I rise today to ask that my colleagues 
support the Conference Report on the Intelligence Authorization Act for 
Fiscal Year 1999.
  I want to thank Chairman Young for his leadership in the Conference, 
and note for my colleagues that Chairman Goss was unable to chair the 
conference due to a serious medical condition in his family. We all 
wish Mrs. Goss a speedy recovery.
  I believe that the Conference Committee put together a solid package 
for consideration by the full Senate that fairly represents the 
intelligence priorities set forth in both the Senate and House versions 
of the Intelligence Authorization Act. I am pleased to report that the 
Conference Committee accomplished its task in a strong bipartisan 
manner, and I want to thank my colleague from Nebraska, Senator Kerrey, 
for working so closely with me to produce this legislation.
  I believe that the Conference Report embraces many of the key 
recommendations that the Senate adopted in its version of the bill.
  We recommended significant increases in funding for high-priority 
projects aimed at better positioning the Intelligence Community for the 
threats of the 21st Century, while at the same time reducing funds for 
programs and activities that were not adequately justified or 
redundant.
  The Conference Report includes key initiatives that I believe are 
vital for the future of our Intelligence Community.
  These initiatives include: bolstering advanced research and 
development across the Community, to facilitate, among other things, 
the modernization of NSA and CIA; strengthening efforts in counter-
proliferation, counter-terrorism, counter-narcotics, counter-
intelligence, and effective covert action; expanding the collection and 
exploitation of measurements and signatures intelligence, especially 
ballistic missile intelligence; developing reconnaissance systems based 
on new small satellite technologies that provide flexible, affordable 
collection from space with radars to detect moving targets; boosting 
education, recruiting, and technical training for Intelligence 
Community personnel; enhancing analytical capabilities; streamlining 
dissemination of intelligence products; and providing new tools for 
information operations.
  The conferees have provided the funds and guidance to ensure that 
military commanders and national policymakers continue to receive 
timely, accurate information on threats to our security.
  At the same time, we have found some critical areas within the 
Community that are in need of major improvements.
  First, the CIA's foremost mission of providing timely intelligence 
based on human sources (``HUMINT'') is in grave jeopardy. CIA case 
officers today do not have the training or the equipment needed to keep 
their true identities hidden, to communicate covertly with agents, or 
to plant sophisticated listening devices and other collection tools 
that will provide timely intelligence on an adversary's intentions.
  Second, what many see as the ``crown jewel'' of U.S. Intelligence--
the National Security Agency's signals intelligence capability--
likewise is in dire need of modernization. The digital and fiber optic 
revolutions are here-and-now, but NSA is still predominantly oriented 
toward cold war-era threats.
  The Director of NSA has recommended major changes in how NSA performs 
its mission--changes we endorse--but those recommendations were not 
adequately addressed in the President's budget.
  Third, promising technologies and systems for detecting missiles and 
other threats were short-changed in the President's budget request. 
Likewise, robust funding for new tools for conducting information 
warfare, new sensors to detect and counter proliferation, and a 
demonstration of radar technology on small and affordable satellites 
were not adequately addressed in the budget request.
  And fourth, the declining quality of analysis within the Intelligence 
Community is cause for great concern.
  Responding to the failure to predict the Indian nuclear tests, the 
Director of Central Intelligence commissioned retired Admiral David 
Jeremiah to review what went wrong and why. Among other findings, 
Admiral Jeremiah concluded that Intelligence Community analysts were 
complacent; they based their analyses on faulty assumptions; and 
engaged in wishful thinking. It is my belief that such is the state of 
analysis as it relates to many issues and problems, including 
political-military developments in China, the ballistic missile threat, 
and more. We can and should expect more from the Intelligence 
Community.
  And as we demand more from our Intelligence Community in a number of 
areas, we also demand fiscal responsibility. The Conference Report 
includes a number of reductions to programs that were not adequately 
justified or were redundant with other elements within the Intelligence 
Community.
  The Conference Report also places some fiscal restraints on programs 
that have historically been allowed to grow unbounded. These programs 
are primarily in the area of technical satellite collection, and the 
conferees placed a cost cap on the National Reconnaissance Office's 
next generation imagery satellite constellation, called the Future 
Imagery Architecture. I believe that this action is necessary to ensure 
that the program stays on a solid fiscal footing from the start, and 
focuses on the key performance parameters generated by the Intelligence 
Community and the Department of Defense's Joint Requirements Oversight 
Council.
  Finally, the Conference Report includes a provision to name the CIA 
Headquarters Compound after President George Bush. I am happy that we 
were able to recognize President Bush's service to this country as both 
Director of Central Intelligence and as President. As DCI, Mr. Bush 
brought innovation to the CIA, and dramatically improved the morale 
within the Agency.
  He demonstrated leadership and integrity at a time when both were 
desperately needed to help restore confidence in the CIA and the other 
elements that make up the Intelligence Community. It is a fitting 
tribute that we designate CIA headquarters the George Bush Center for 
Intelligence.
  Mr. President, the Conference Committee worked closely together, in a 
strong bipartisan fashion, to produce a comprehensive Intelligence 
Authorization Act, and I urge my colleagues to support its adoption.
  Mr. KERREY. Mr. President, I urge my colleagues to vote for this 
conference report and I urge the President to sign this bill into law. 
This legislation is an essential part of Congress' annual duty to 
provide and direct the resources which safeguard the independence of 
the United States and the lives and livelihoods of the American people. 
Chairman Shelby's leadership and sustained effort throughout this year 
come to fruition in this excellent bill and I congratulate him. I also 
appreciate the vision and hard work of Chairman Goss and Ranking Member 
Dicks of the House Committee, together with the leadership of Chairman 
Young at the conference.
  This legislation, like the intelligence agencies it authorizes, seeks 
to maximize America's capabilities against today's threats while 
simultaneously building capability against the threats of 2010 and 
beyond. The Intelligence Community cannot be pulled back from its 
deployed status for retraining and retooling. It is operating tonight 
around the world, seeking to monitor every environment which could 
threaten America or our allies. But the Intelligence Community must 
also be able to master the steadily more complex technologies which 
will be tomorrow's threat environments. The outlines of the new century 
are apparent, as we see the continuing explosion of communications 
media, the global growth of strong encryption, and the increasing 
porosity of international borders, to mention just of the future that 
are already upon us. In response to challenges like these, the 
conference authorized the start or continuation of a number of new 
technology initiatives, including most of those the Senate supported 
previously.
  The Committee's efforts to advance intelligence technology were 
greatly assisted by a group of outside experts who formed a Technical 
Advisory Group to the Committee. They helped the Committee focus on the 
future of signals intelligence and the necessity

[[Page S11904]]

for the National Security Agency to modernize itself, as well as how 
technology could better support human intelligence. Their contribution 
of time and expertise is paying off already for the country, and they 
deserve the thanks of all of us.
  Throughout the authorization process, the two intelligence committees 
have understood that their efforts to prepare U.S. intelligence to 
master the future must be bounded by budgetary realities. Most of the 
intelligence budget is dependent on a defense budget which, as we all 
know, is under severe pressure. The intelligence agencies have 
ambitious projects, and it is part of our job to set financial limits 
and time constraints and closely oversee the progress of these 
projects. The conferees placed a cost cap on the National 
Reconnaissance Office's Future Imagery Architecture for this reason.
  The bill also encourages competitive analysis of important and 
difficult intelligence topics. The Jeremiah Report which reviewed 
intelligence community performance following this year's Indian nuclear 
test and the Rumsfeld panel report on the ballistic missile threat both 
stress the need to use competitive analysis drawing on experts from 
both within and outside the government. This bill encourages that 
process.
  Analysis will grow stronger in the coming year, not only because of 
this legislation, but because there is now in place, under the Director 
of Central Intelligence, an Assistant Director for Analysis and 
Production. This official has not been confirmed by the Senate, 
although he may well be in the coming year, but he is already using the 
Director's authorities to make analysis in the Intelligence community 
more effective and efficient. He and his counterpart, the Assistant 
Director for Collection Management, and their supervisor, the Deputy 
Director for Community Management, are already by their actions 
validating Congress' wisdom in creating these positions. As I go to 
briefings and learn how these officials are marshaling resources in 
times of crisis, setting priorities, and identifying gaps, I am pleased 
with the work we did two years ago.
  Another aspect of the intelligence business should be praised, Mr. 
President, and that is the unparalleled level of cooperation between 
the agencies these days. The relationship between FBI and the CIA is 
particularly strong and it has paid off most recently in the 
investigation of the attacks on our embassies in Kenya and Tanzania. 
Director Tenet and Director Freeh have overcome corporate cultures and 
bureaucratic impulses to forge a strong team for America and they 
deserve our thanks.
  Team-building and sound oversight both depend on the flow of 
information. The Senate had gone on record three times in defense of a 
Federal employee's right to bring classified information on wrongdoing 
to the appropriate committees of Congress. The House had devised a 
process by which such information could come to Congress while insuring 
the employee's privacy, making the employee's agency aware the 
information was going to Congress, and insuring the protection of 
sources and methods. The conference modified the House provision and 
agreed to make the information process faster. As one who has argued 
several times on this floor for the right of Congress to be informed, I 
am pleased with the conference outcome on this provision and with the 
work of both bodies.
  This legislation also recognizes the accomplishments of a great 
patriot, former President Bush, by naming the CIA Headquarters complex 
in his honor. From his initial service in World War II, President Bush 
has always stepped forward to do hard and sometimes dangerous work for 
his country. Leadership of the CIA has both characteristics. President 
Bush distinguished himself in that job, as in all his service, and I am 
pleased this legislation will honor him.
  Mr. THURMOND. Mr. President, I rise to address an issue of serious 
consequence in the Intelligence Authorization Conference Report. 
Although I have signed the conference report and intend to support it 
on the Senate floor, I feel compelled to voice my concern over the 
manner in which the conference report deals with the Future Imagery 
Architecture, a program managed by the National Reconnaissance Office. 
I make these remarks with the complete understanding that conference is 
always difficult, and always improve compromises.
  Although there are reasons to be concerned about cost growth in the 
FIA program, I am just as concerned that the intelligence conference 
report will have negative and unforeseen consequences for this 
important program. The conference report mandates fixed deployment 
dates, fixed costs, and fixed portions of the budget for subsidizing 
the commercial sector. Perhaps more troubling, the conference report 
fences one hundred percent of the FIA budget for fiscal year 1999 
pending the completion of several significant tasks, a number of which 
are outside the purview of the NRO. Since FY 1999 has already 
commenced, this means that none of the FIA budget can be accessed for 
many months, even to support completion of the tasks that the 
conference report has mandated. In my view, imposing such limitations 
before a contract has even been awarded is an unprecedented and 
unwarranted degree of micro-management.
  Based on my concerns, I have requested the views of the Department of 
Defense and the Joint Chiefs of Staff. The preliminary report that I 
have received indicates that OSD and JCS have serious concerns similar 
to mine.
  It has been asserted that the FIA program must live under a 
congressionally imposed cost cap in order to prevent it from ``eating'' 
the entire National Foreign Intelligence Program. Some who make this 
argument, however, also want to see FIA's capabilities to support 
military users reduced so that savings can be used to support other 
programs within the NFIP that have a more ``national'' orientation. The 
fact of the matter is, however, even though FIA is funded in the NFIP, 
by its nature and the mission of the NRO, it must provide robust 
support to military forces. The Intelligence Committees must ensure 
that their bill supports these military missions as well as the other 
programs and missions funded within the NFIP.


      intelligence community whistleblower protection act of 1998

  Mr. SHELBY. Mr. President, I want to take a moment to discuss 
language that has been added to the Intelligence Authorization Act for 
Fiscal Year 1999. The language, establishing the ``Intelligence 
Community Whistleblower Act of 1998,'' creates a process by which 
employees of intelligence agencies can provide information to Congress 
about certain potential problems without fear of reprisal or threats or 
reprisal.
  Some of these provisions create duties for the Inspectors General 
(IGs) of the Department of Defense and the Department of Justice, and 
modify the Inspector General Act of 1978. As a result, they fall 
squarely within the jurisdiction of the Committee on Governmental 
Affairs, which is the Senate's primary oversight committee for the IG 
community.
  However, Senator Thompson, the chairman of the Governmental Affairs 
Committee, worked with me to ensure that the language comports with the 
overall framework of the Inspector General Act. I thank my colleague 
for his participation in this issue.
  Mr. THOMPSON. Mr. President, I thank my colleague from Alabama for 
his cooperation on this matter. The Committee on Governmental Affairs, 
which I chair, has long been a supporter and friend of the Inspector 
General (IG) community. Twenty years ago, the Committee's leadership 
led to passage of the Inspector General Act, legislation which has 
served Congress, the executive branch, and the public well. As their 
primary committee of jurisdiction, the Committee has a longstanding and 
abiding interest in the IGs.
  Thus, the Committee has an interest in any legislation that affects 
the duties of the IGs. Portions of the ``Intelligence Community 
Whistleblower Protection Act of 1998'' amend the IG Act by vesting the 
Defense Department and Justice Department IGs with authority to act 
upon allegations received from intelligence community whistleblowers 
who wish to complain to Congress about problems they see in certain 
sensitive areas. Recognizing the Committee's jurisdiction and interest 
in this matter, Senator Shelby solicited my views on how the 
whistleblower provisions fit within the existing IG statute. I thank 
Senator Shelby for offering me

[[Page S11905]]

the opportunity to work with him on this important issue.


                        S.C. Secrecy Reform Act

  Mr. MOYNIHAN. Mr. President, today the Senate Select Committee on 
Intelligence brings to the floor the conference report on the 
intelligence authorization bill. While I commend the Committee for 
bringing this legislation to the floor, I would like to take this 
opportunity to discuss a bill that the committee did not act on this 
year: the government Secrecy Reform Act (S. 712).
  This legislation stems from the unanimous recommendation of the 
Commission on Protecting and Reducing Government Secrecy. Senator Jesse 
Helms and I, and Representatives Larry Combest and Lee Hamilton (all 
Commissioners), introduced the Government Secrecy Act in May 1997. The 
bill sets out a new legislative framework to govern our secrecy system. 
Our core objective is to ensure that secrecy proceed according to law. 
The proposed statute can help ensure that the present regulatory regime 
will not simply continue to flourish without any restraint and without 
meaningful oversight and accountability.
  A trenchant example of the need for reform in this area came last 
week by way of the Assassination Records Review Board. The Board has 
now completed its congressionally mandated review and release of 
documents related to President Kennedy's assassination. It has 
assembled at the National Archives a thorough collection of documents 
and evidence that was previously secret and scattered about the 
government. The Review Board found that while the public continues to 
search for answers over the past thirty-five years:

       [T]he official record on the assassination of President 
     Kennedy remained shrouded in secrecy and mystery.
       The suspicions created by government secrecy eroded 
     confidence in the truthfulness of federal agencies in general 
     and damaged their credibility.

  Credibility eroded needlessly, as most of the documents which the 
Board reviewed were declassified. And at considerable cost, as it 
represents the best-known and most notorious conspiracy theory now 
extant: the unwillingness on the part of the vast majority of the 
American public to accept that President Kennedy was assassinated in 
1963 by Lee Harvey Oswald, acting alone.
  Conspiracy theories have been with us since the birth of the 
Republic. This one seems to have only grown. A poll taken in 1966, two 
years after release of the Warren Commission report concluding that 
Oswald had acted alone, found that 36 percent of respondents accepted 
this finding, while 50 percent believed others had been involved in a 
conspiracy to kill the President. by 1978 only 18 percent responded 
that they believed the assassination had been the act of one man; fully 
75 percent believed there had been a broader plot. The numbers have 
remained relatively steady since; a 1993 poll also found that three-
quarters of those surveyed believed (consistent with the film JFK, 
released that year) that there had been a conspiracy.
  It so happens that I was in the White House at the hour of the 
President's death (I was an assistant labor secretary at the time). I 
feared what would become of him if he were not protected, and I pleaded 
that we must get custody of Oswald. But no one seemed to be able to 
hear. Presently Oswald was killed, significantly complicating matters.
  I did not think there had been a conspiracy to kill the president, 
but I was convinced that the American people would sooner or later come 
to believe that there had been one unless we investigated the event 
with exactly that presumption in mind. The Warren Commission report and 
the other subsequent investigations, with their nearly universal 
reliance on secrecy, did not dispel any such fantasies.
  In conducting this document-by-document review of classified 
information, the Board reports that ``the federal government needlessly 
and wastefully classified and then withheld from public access 
countless important records that did not require such treatment.'' How 
to explain this?
  Beginning with the concept that secrecy should be understood as a 
form of government regulation. This was an insight of the Commission on 
Protecting and Reducing Government Secrecy, which I chaired, building 
on the work of the great German sociologist Max Weber, who wrote some 
eight decades ago:

       The pure interest of the bureaucracy in power, however, is 
     efficacious far beyond those areas where purely functional 
     interests make for secrecy. The concept of the `official 
     secret' is the specific invention of bureaucracy, and nothing 
     is so fantastically defended by the bureaucracy as this 
     attitude, which cannot be substantially defended beyond 
     these specifically qualified areas.

  What we traditionally think of in this country as regulation concerns 
how citizens are to behave. Whereas public regulation involves what the 
citizen may do, secrecy concerns what that citizen may know. And the 
citizen does not know what may not be known. As our Commission stated: 
``Americans are familiar with the tendency to overregulate in other 
areas. What is different with secrecy is that the public cannot know 
the extent or the content of the regulation.''
  Thus, secrecy is the ultimate mode of regulation; the citizen does 
not even know that he or she is being regulated! It is a parallel 
regulatory regime with a far greater potential for damage if it 
malfunctions. In our democracy, where the free exchange of ideas is so 
essential, it can be suffocating.
  And so the Commission recommended that legislation must be enacted. 
The Majority and Minority Leaders have been persuaded on the necessity 
of such legislation and are cosponsors of the bill. On March 3, 1998, 
we engaged in a colleague on the bill with the two Leaders, along with 
myself, Senators Helms, Thompson, Glenn, Shelby, and Kerrey. At that 
time we all agreed on the importance of considering the bill in this 
session. The Majority Leader stated, ``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. The Senate Governmental Affairs Committee, chaired by 
Senator Thompson, considered the bill and approved it unanimously on 
July 22. In its report to accompany the bill, the Committee had this 
important insight:

       Our liberties depend on the balanced structure created by 
     James Madison and the other framers of the Constitution. The 
     national security information system has not had a clear 
     legislative foundation, but . . . has been developed through 
     a series of executive orders. It is time to bring this 
     executive monopoly over the issue to an end, and to begin to 
     engage in the same sort of dialogue between Congress and the 
     executive that characterizes the development of government 
     policy in all other means.

  We are not proposing putting an end to government secrecy. Far from 
it. It is at times terribly necessary and used for the most legitimate 
reasons--ranging from military operations to diplomatic endeavors. 
Indeed, much of our Commission's report is devoted to explaining the 
varied circumstances in which secrecy is most essential. Yet, the 
bureaucratic attachment to secrecy has become so warped that, in the 
words of Kermit Hall, a member of the Assassination Records Review 
Board, it has transformed into ``a deeply ingrained commitment to 
secrecy as a form of patriotism.''
  Secrecy need not remain the only norm--particularly when one 
considers that the current badly overextended system frequently fails 
to protect its most important secrets adequately. We must develop what 
might be termed a competing ``culture of openness''--fully consistent 
with our interests in protecting national security, but in which power 
and authority are no longer derived primarily from one's ability to 
withhold information from others in government and the public at large.
  Unfortunately, the Intelligence Committee did not take up this bill. 
Part of the delay was a result of the tardy administration response to 
the changes made by the Governmental Affairs Committee. A formal letter 
on the bill was not delivered until September 17. In addition, this 
letter sought the removal of the ``balancing test'' contained in the 
bill, a change that the administration had not previously sought.
  Nevertheless, we were on the threshold of reaching agreement on the 
bill. The Intelligence Committee has been reviewing the bill 
informally, and I hope the Chairman will agree that the difference 
between us are not that great, and that we can pass the bill early in 
the 106th Congress.

[[Page S11906]]

  I ask unanimous consent that the letter expressing the administration 
views on the bill be printed in the Record at this point, along with 
comments on the letter made in a joint letter by the National Security 
Archives and the Federation of American Scientists, and a letter by 
Representative Lee Hamilton.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                    Congress of the United States,


                                     House of Representatives,

                                  Washington, DC, October 2, 1998.
     Mr. Steven Aftergood,
     Federation of American Scientists, 307 Massachusetts, Ave., 
         NE., Washington, DC.
       Dear Mr. Aftergood, Thank you for your letter of September 
     24, 1998, concerning National Security Adviser Sandy Berger's 
     letter to me with the Administration's views on S. 712, The 
     Government Secrecy Reform Act of 1998.
       I agree with you. I think it is a serious mistake to accept 
     the elimination of the public-interest balancing test as the 
     price for Administration support of the bill. To agree with 
     the Administration's proposed changes would amount to gutting 
     the bill. It would amount to a codification of existing 
     procedures in the Executive branch, and a rejection of the 
     work of the Secrecy Commission. I want to work with the 
     Administration in support of secrecy reform, but I cannot 
     accept a revised bill that does not change the unacceptable 
     status quo on classification and declassification.
       As I read it, secrecy reform is dead in the current 
     Congress. In the absence of Administration support, moving 
     the bill forward just will not be possible.
       On a personal note, I want to say that the efforts of you 
     and your organization have been very helpful to me and to 
     advocates of secrecy reform, and I wish you every success in 
     the 106th Congress.
       With best regards,
           Sincerely,
                                                  Lee H. Hamilton,
     Ranking Democratic Member.
                                  ____

                                               September 24, 1998.
     Re S. 712, the Government Secrecy Reform Act of 1998

     Hon. Daniel Patrick Moynihan,
     United States Senate, Washington, DC.
       Dear Senator Moynihan: As three public-interest 
     organizations that have collectively spent more than 50 years 
     battling excessive government secrecy imposed in the name of 
     national security, we write to applaud S. 712, the Government 
     Secrecy Reform Act of 1998, as a truly important and 
     unprecedented step towards reforming the Cold War secrecy 
     system.
       The bill includes the critical ingredient for any real 
     reform, namely the public-interest balancing test and 
     judicial review under the Freedom of Information Act applying 
     that test. The public-interest balancing test--whereby 
     classification standards must incorporate a weighing of the 
     public interest in knowing the information against the harm 
     to the national security from disclosure--was one of the key 
     recommendations of the Commission on Protecting and Reducing 
     Government Secrecy in 1997. And the experience of the past 20 
     years confirms that Congress was correct in 1974, when it 
     recognized that an essential element for an effective Freedom 
     of Information Act is judicial review of whether 
     classification standards are being properly applied when 
     government agencies refuse to release information.
       For these reasons, we are deeply disappointed that the 
     Administration objects to the bill's inclusion of the public-
     interest balancing test for declassification and the 
     concomitant amendment to the Freedom of Information Act. 
     (Letter from Samuel R. Berger to Lee Hamilton, September 17, 
     1998; secs 2(c) and (f) in S. 712 as reported out of the 
     Senate Committee on Governmental Affairs.) The 
     Administration's demand to eliminate from the bill the 
     balancing test and its enforcement under the FOIA threatens 
     to eviscerate the bill and to gut any real reform. If the 
     bill were to be passed without these provisions, we fear that 
     secrecy reform would suffer a grievous setback. The historic 
     opportunity carved out by the Commission to advance reform 
     beyond the status quo will have been missed, and instead the 
     Congress risks codifying a Cold War understanding of national 
     security secrecy that ill serves democratic principles.
       While we understand that the Administration's objections 
     may make it difficult to pass the bill as reported out of 
     Committee in this session of Congress, we urge you to insist 
     on keeping these provisions in the bill.
       We believe that the administration's objections can be 
     overridden, if not in this Congress, then in the next one. 
     The objections are based on a dangerous and erroneous view 
     that the President has absolute and unreviewable authority 
     over national security information. This view of exclusive 
     authority challenges not only the judiciary's constitutional 
     role in enforcing the law but also Congress' shared 
     responsibility for national security information. It is 
     inconsistent with the Supreme Court precedent, (See, EPA v. 
     Mink, 410 U.S. 73 (1973) and contradicts decades of 
     congressional legislating. (Most recently, the Nazi War 
     Crimes Disclosure Act, but also the JFK Assassinations 
     Records Collection Act, the Foreign Relations Authorization 
     Act of 1992 (concerning the Department of State's Foreign 
     Relations of the United States series), and the Intelligence 
     Oversight Act, among others.) Indeed, this same argument was 
     rejected by the Congress in 1974 when it overrode President 
     Ford's veto of the amendment to the Freedom of Information 
     Act providing that federal courts should determine whether 
     information is properly classified. In now objection to 
     judicial review, the administration is seeking to repeal the 
     most important element of the FOIA.
       Moreover, the oft-cited specter of ``judicial intrusion on 
     the President's constitutional authority'' is not grounded in 
     any real historical experience. The bill would authorize 
     judicial review to determine whether mid-level agency 
     officials have correctly applied declassification standards. 
     In reality, no federal court is ever going to release 
     national security information over the objection of the 
     President or even the head of an agency, and certainly no 
     appeals court would uphold any such decision. At the same 
     time, experience confirms that it is only the availability of 
     judicial review that ensures that agencies do, in fact, live 
     up to their legal obligations under the FOIA. For example, 
     only when the CIA was forced to defend its withholding of the 
     aggregate intelligence budget in 1997 in court did the agency 
     finally release the information.
       As you have written, ``[s]ecrecry can be a source of 
     dangerous ignorance. . . . It is time. . . . 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.'' These key provisions of 
     the bill are essential to allow the public to do just that--
     to participate effectively in the political process and to 
     engage in democratic decision making on fundamental issues of 
     foreign policy and national security.
       Thank you for considering our views.
           Sincerely yours,
                                                      Kate Martin,
                             Center for National Security Studies.
                                                 Steven Aftergood,
                                Federation of American Scientists.
                                                   Thomas Blanton,
     National Security Archive.
                                  ____



                                              The White House,

                                   Washington, September 17, 1998.
     Hon. Lee Hamilton,
     Ranking Democratic Member,
     Committee on International Relations,
     House of Representatives,
     Washington, DC.
       Dear Lee: Thank you for your letter inquiring about the 
     Administration's views on S. 712, the Government Secrecy 
     Reform Act of 1998, which was reported out of the Senate 
     Committee on Governmental Affairs in July. I wrote to 
     Chairman Thompson on May 11, 1998, conveying Administration 
     views on this legislation; a copy of that letter is enclosed.
       The amended version of S. 712 incorporates most of the 
     Administration's recommendations regarding the Office of 
     National Classification and Declassification Oversight 
     (NCDO); the use of classification and declassification 
     guidance; and the need to ensure that declassification 
     decisions are made only by the originating agency. The 
     Committee also clearly tried to address our concerns about 
     new rights of judicial review, but further clarification on 
     this vital point is necessary.
       The additional improvements in S. 712 that we believe are 
     essential are discussed below. Based on recent discussions 
     with staff of Chairman Thompson. Senator Moynihan, and the 
     Senate Select Committee on Intelligence, I am hopeful that 
     needed changes can be made that would enable the 
     Administration to endorse this legislation. For each of the 
     key issues, our suggestions are included in a line-in/line-
     out version of S. 712 enclosed with this letter.
       1. The bill must be modified to make it unambiguously clear 
     that this legislation confers no new rights of judicial 
     review. While the text of Section 6 attempts to limit 
     judicial review, the interplay of other sections would create 
     new substantive and procedural rights. Section 2(c), which 
     requires a national security/public interest balancing test 
     before classifying or declassifying any information, also 
     sets forth specific standards for defining harm to national 
     security and the public interest. Section 2(f), which amends 
     the FOIA, clearly would make the application of a balancing 
     test subject to judicial review under FOIA. Indeed, the 
     Government Affairs Committee Report states that ``the 
     legislation necessarily imports into its new secrecy regime 
     the judicial review available under the Freedom of 
     Information Act (FOIA). For example, proper application of 
     the public interest/national security balancing test would be 
     within the scope of judicial review for Freedom of 
     Information Act requests for classified information. * * *'' 
     Since the bill was reported, we have considered several 
     approaches to revising the balancing test language or adding 
     additional language to limit judicial review. None of these 
     approaches completely addresses the concern that legislating 
     a mandatory balancing test could encourage judicial intrusion 
     on the President's constitutional authority and transform the 
     nature of judicial review of classification and 
     declassification decisions in FOIA litigation. We have 
     concluded that the balancing test must be eliminated in order 
     to protect essential Presidential authority and to ensure 
     that the legislation introduces no new rights of judicial 
     review.
       2. Section 2(d) would forbid the classification of any 
     information for more than 10

[[Page S11907]]

     years, without the concurrence of the head of the NCDO and a 
     written certification to the President. Since over half of 
     all original classification decisions made under E.O. 12958 
     are properly designated for more than 10 years (down from 95% 
     under the previous Executive Order), implementation of this 
     requirement would be unworkable without the employment of a 
     huge new bureaucracy at the NCDO and hundreds of new 
     certification writers at the agencies. The standards for 
     duration of classification must be rewritten to make them 
     compatible with the E.O. 12958 standards.
       3. Section 4 establishes a Classification and 
     Declassification Review Board, consisting exclusively of non-
     Government employees, to decide appeals from the public or 
     agencies of decisions made by agencies or the NCDO. Agencies 
     may appeal decisions of this Board only to the President. 
     Given the new oversight authority assigned to the Director of 
     the NCDO, and the existing rights of FOIA or Executive Order 
     appeal, this new entity is redundant and unnecessary, and it 
     is likely to be quite costly to operate. At a minimum, the 
     legislation must be amended to permit the President to 
     appoint Review Board members of his choosing, including 
     current Government employees.
       4. S. 712 locates the NCDO within the EOP, which is highly 
     problematic given the traditional constraints on the budget 
     and staffing levels of the EOP. Therefore, we believe the 
     best organizational placement for the NCDO is the National 
     Archives and Records Administration, which has a strong 
     institutional commitment to declassifying public records as 
     expeditiously as possible consistent with protecting national 
     security interests. That said, we also would recommend the 
     addition of language that would codify an ongoing NSC role in 
     providing policy guidance to the NCDO and would enhance the 
     prospects of adequate funding for the NCDO. With a continued 
     NSC imprimatur and adequate assured funding, organizational 
     placement outside the EOP would be a much less difficult 
     issue.
       5. Section 2(c)(4) requiring detailed written 
     justifications for all classification decisions is the kind 
     of administrative detail that should be left to the 
     discretion of the executive branch. As drafted, this 
     provision would increase paperwork and cost, without any 
     assurance of improving classification decisions or the 
     management of the program. However, we agree that it would 
     make sense to require detailed justifications whenever 
     classification decisions are incorporated into an agency's 
     classification guide.
       6. Section 3(d)(7) should be modified to limit NCDO access 
     to the most sensitive records associated with a special 
     access program. Limiting access to such records is consistent 
     with E.O. 12958 but will not undermine the NCDO's ability to 
     oversee special access programs.
       I appreciate your continuing leadership on this matter. By 
     working together on the difficult remaining issues, I think 
     we have a chance to establish a statutory framework for the 
     classification and declassification program that enhances the 
     President's authority to manage the program effectively.
           Sincerely,

                                             Samuel R. Berger,

                                    Assistant to the President for
                                        National Security Affairs.

  Mr. NICKLES. I ask unanimous consent that the conference report be 
agreed to, the motion to reconsider be laid upon the table, and any 
statements relating to the conference report be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The conference report was agreed to.

                          ____________________