[Congressional Record Volume 145, Number 8 (Tuesday, January 19, 1999)]
[Senate]
[Pages S398-S402]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. MOYNIHAN (for himself, Mr. Helms, Mr. Lott, Mr. Daschle, 
        Mr. Thompson, Ms. Collins, and Mr. Schumer):
  S. 22. A bill to provide for a system to classify information in the 
interests of national security and a system to declassify information, 
and for other purposes; to the Committee on Governmental Affairs.


                   the government secrecy reform act

  Mr. MOYNIHAN. Mr. President, I rise to introduce the Government 
Secrecy Reform Act. I would like to begin by thanking my cosponsors, 
Senators Helms, Lott, Daschle, Thompson, Collins, and Schumer. The 
legislation that we introduce today is intended to implement the core 
recommendation of the Commission on Protecting and Reducing Government 
Secrecy: a statute establishing the principles to govern the 
classification and declassification of information.
  The Federal government has a legitimate interest in maintaining 
secrets in order to fulfill its Constitutional charge to ``provide for 
the common defense.'' At the same time, this interest must be balanced 
by the public's right to be informed of government activities.
  The Commission on Protecting and Reducing Government Secrecy, which I 
chaired, found a secrecy system out of balance: one which has lost the 
confidence of many inside and outside the Government. Consequently, 
information needing protection does not always receive it, while 
innocuous information is classified and remains classified. The 
Commission found in its 1997 report that ``[t]he best way to ensure 
that secrecy is respected, and that the most important secrets remain 
secret, is for secrecy to be returned to its limited but necessary 
role. Secrets can be protected more effectively if secrecy is reduced 
overall.''
  Begin with the concept that secrecy should be understood as a form of 
government regulation. This was an insight of the Commission, building 
on the work of the great German sociologist Max Weber. The instinct of 
the bureaucracy, Weber wrote, was to ``increase the superiority of the 
professionally informed by keeping their knowledge and intentions 
secret.'' The concept of the `official secret' ``is the specific 
invention of bureaucracy, and nothing is so fanatically defended by the 
bureaucracy as this attitude.''
  We traditionally think of regulation as a means to govern how 
citizens are to behave. Whereas public regulation involves what 
citizens may do, secrecy concerns what citizens 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.
  To reform this system, the Commission recommended legislation be 
adopted. Senator Jesse Helms and I, and Representatives Larry Combest 
and Lee Hamilton (all Commissioners), introduced the Government Secrecy 
Act on May 7, 1997. Our core objective is to ensure that secrecy 
proceed according to law. Since the Truman Administration, 
classification and declassification have been governed by a series of 
executive orders but not one has created a stable and reliable system 
to ensure we protect what truly needs protecting and nothing more. The 
system lacks the discipline of a legal framework to define and enforce 
the proper uses of secrecy. 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.
  The Senate Governmental Affairs Committee, Chaired by Senator 
Thompson of Tennessee, considered the bill is the 105th Congress and 
reported it unanimously. 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.

  As the Cold War gathered, this ``executive monopoly'' as the 
Governmental Affairs Committee has termed it, was spawned. The United 
States had to organize itself to deal with aggression from the Soviet 
Union. American society in peacetime began to experience wartime 
regulation. The awful dilemma was that in order to preserve an open 
society, the U.S. government took measures that in significant ways 
closed it down. The culture of secrecy that evolved was intended as a 
defense against two antagonists: the enemy abroad and the enemy within.
  Edward Shils chronicled the perils of this growing secrecy system in 
his 1956 work, The Torment of Secrecy. He said of this era:

       The American visage began to cloud over. Secrets were to 
     become our chief reliance just when it was becoming more and 
     more evident that the Soviet Union had long maintained an 
     active apparatus for espionage in the United States. For a 
     country which had never previously thought of itself as an 
     object of systematic espionage by foreign powers, it was 
     unsettling.

  The larger society, Shils continued, was ``facing an unprecedented 
threat to its continuance.'' In such circumstances, ``the phantasies of 
apocalyptic visionaries now claimed the respectability of being a 
reasonable interpretation of the real situation.''
  Shils was writing, as he explained in his Foreword, ``after nearly a 
decade of degrading agitation and numerous unnecessary and unworthy 
actions . . .'' Today, by contrast, the public and its representatives 
have few of the concerns of ideological ``infiltration'' that dominated 
our attention and our domestic politics during the decade preceding 
Shils' book.
  Indeed, if there is such a thing as a ``typical'' case of espionage, 
it involves an employee well into mid-career who sells national 
security secrets out of greed, not because of any ideologically-based 
motivation.
  Moreover, today it is the United States government that increasingly 
finds itself the object of what Shils four decades ago termed the 
``phantasies of apocalyptic visionaries.''
  Conspiracy theories have been with us since the birth of the 
Republic. The best-known and most notorious is, of course, 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. 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

[[Page S399]]

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 Oswald if he were not protected and I 
pleaded that we must get custody of him. 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.
  The Assassination Records Review 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 has continued 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. 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.''

  With the Government Secrecy Reform Act, 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 
partriotism.'' From this perspective, it is easy to see how secrecy 
became the norm.
  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. A culture 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.
  This is our purpose in introducing the Government Secrecy Reform Act. 
I thank those who have agreed to cosponsor the bill and ask my 
colleagues to lend it the attention it deserves.
  I ask unanimous consent that the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 22

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Government Secrecy Reform 
     Act of 1999''.

     SEC. 2. CLASSIFICATION AND DECLASSIFICATION OF INFORMATION.

       (a) In General.--The President may, in accordance with the 
     provisions of this Act, protect from unauthorized disclosure 
     any information owned by, produced by or for, or under the 
     control of the executive branch when there is a demonstrable 
     need to do so in order to protect the national security of 
     the United States.
       (b) Establishment of Standards and Procedures for 
     Classification and Declassification.--
       (1) Governmentwide procedures.--
       (A) Classification.--The President shall, to the extent 
     necessary, establish categories of information that may be 
     classified and procedures for classifying information under 
     subsection (a).
       (B) Declassification.--At the same time the President 
     establishes categories and procedures under subparagraph (A), 
     the President shall establish procedures for declassifying 
     information that was previously classified.
       (2) Notice and comment.--
       (A) Notice.--The President shall publish in the Federal 
     Register notice regarding the categories and procedures 
     proposed to be established under paragraph (1).
       (B) Comment.--The President shall provide an opportunity 
     for interested persons to submit comments on the categories 
     and procedures covered by subparagraph (A).
       (C) Deadline.--The President shall complete the 
     establishment of categories and procedures under paragraph 
     (1) not later than 60 days after publishing notice in the 
     Federal Register under subparagraph (A). Upon completion of 
     the establishment of such categories and procedures, the 
     President shall publish in the Federal Register notice 
     regarding such categories and procedures.
       (3) Modification.--In the event the President determines to 
     modify any categories or procedures established under 
     paragraph (1), subparagraphs (A) and (B) of paragraph (2) 
     shall apply to such modification.
       (4) Agency standards and procedures.--
       (A) In general.--The head of each agency shall establish 
     standards and procedures to permit such agency to classify 
     and declassify information created by such agency in 
     accordance with the categories and procedures established by 
     the President under this section and otherwise to carry out 
     the provisions of this Act. Such standards and procedures 
     shall include mechanisms to minimize the risk of inadvertent 
     or inappropriate declassification of previously classified 
     information (including information classified by other 
     agencies).
       (B) Guidance.--
       (i) In general.--The President shall require the head of 
     each agency with original classification authority to produce 
     written guidance on the classification and declassification 
     of information in order to improve the classification and 
     declassification of information by such agency and the 
     derivative classification of information and declassification 
     of derivatively classified information by such agency and 
     other agencies. Such guidance may be treated as classified 
     information under this Act.
       (ii) Declassification period for certain information.--

       (I) In general.--In producing written guidance under clause 
     (i), the head of an agency may specify types and categories 
     of information that may remain classified for up to 25 years 
     after the date of original classification.
       (II) Approval required.--The specification of a type or 
     category of information under subclause (I) shall be 
     effective only with the approval of the Director of the 
     Office of National Classification and Declassification 
     Oversight.

       (C) Deadline.--Each agency head shall establish standards 
     and procedures under subparagraph (A) and produce written 
     guidance under subparagraph (B) not later than 60 days after 
     the date on which the President publishes notice under 
     paragraph (2)(C) of the categories and standards established 
     by the President under paragraph (1).
       (D) Publication.--Each agency head shall publish in the 
     Federal Register the standards and procedures established by 
     such agency head under subparagraph (A).
       (c) Standard for Classification and Declassification 
     Decisions.--
       (1) In general.--Subject to paragraph (2), information may 
     be classified under this Act, and classified information 
     under review for declassification under this Act may remain 
     classified, only if the harm to national security that might 
     reasonably be expected from disclosure of such information 
     outweighs the public interest in disclosure of such 
     information.
       (2) Default rule.--In the event of significant doubt 
     whether the harm to national security that might reasonably 
     be expected from the disclosure of information would outweigh 
     the public interest in the disclosure of such information, 
     such information shall not be classified or, in the case of 
     classified information under review for declassification, 
     declassified.
       (3) Factors in decisions.--
       (A) In general.--The President shall prescribe the factors 
     to be utilized in deciding for purposes of paragraph (1) 
     whether the disclosure of information might reasonably be 
     expected to harm national security or might serve the public 
     interest.
       (B) Guidance.--In prescribing factors under subparagraph 
     (A), the President shall also prescribe guidance to be 
     utilized in applying such factors. The guidance shall specify 
     with reasonable detail the weight to be assigned each factor 
     and the manner of balancing among opposing factors of similar 
     or different weight.
       (C) Process.--The President shall prescribe factors and 
     guidance under this paragraph at the same time the President 
     establishes categories and procedures under subsection (b)(1) 
     and subject to the notice and

[[Page S400]]

     comment procedures set forth under subsection (b)(2).
       (d) Written Justification for Classification.--
       (1) Original classification.--Each agency official who 
     makes a decision to classify information not previously 
     classified shall, at the time of such decision--
       (A) identify himself or herself; 
       (B) provide in writing a detailed justification of that 
     decision; and
       (C) indicate the basis for the classification of the 
     information with reference to the written guidance produced 
     under subsection (b)(4)(B).
       (2) Derivative classification.--In any case in which an 
     agency official or contractor employee classifies a document 
     on the basis of information previously classified that is 
     included or referenced in the document, the official or 
     employee, as the case may be, shall--
       (A) identify himself or herself in that document; and
       (B) provide a concise explanation of that decision.
       (e) Declassification of Information Classified Under Act.--
       (1) In general.--Except as provided in paragraphs (2), (3), 
     and (4), information classified under this Act may not remain 
     classified under this Act after the date that is 10 years 
     after the date of the original classification of the 
     information.
       (2) Earlier declassification.--When classifying information 
     under this Act, an agency official may provide for the 
     declassification of the information as of a date or event 
     that is earlier than the date otherwise provided for under 
     paragraph (1).
       (3) Later declassification.--
       (A) In general.--When classifying information under this 
     Act, an agency official with original classification 
     authority over the information may provide for the 
     declassification of the information on a date that is up to 
     25 years after the date of original classification in 
     accordance with the guidance approved under subsection 
     (b)(4)(B)(ii).
       (B) Postponement.--The actual date of the declassification 
     of information referred to in subparagraph (A) may be 
     postponed under paragraph (4)(D).
       (4) Postponement of declassification.--
       (A) In general.--The declassification of any information or 
     category of information that would otherwise be declassified 
     under paragraph (1) or (2) may be postponed if an official of 
     the agency with original classification authority over the 
     information or category of information, as the case may be, 
     determines, before the time of declassification for such 
     information otherwise provided for under paragraph (1) or 
     (2), as the case may be, that the information or category of 
     information, as the case may be, should remain classified.
       (B) Procedure.--An official may not implement a 
     determination under subparagraph (A) until the official 
     obtains the concurrence of the Director of the Office of 
     National Classification and Declassification Oversight in the 
     determination.
       (C) General duration of postponement.--Except as provided 
     in subparagraph (D), information the declassification of 
     which is postponed under this paragraph may remain classified 
     not longer than 15 years after the date of the postponement.
       (D) Extended duration of postponement.--
       (i) In general.--Subject to clauses (ii) and (iii), the 
     declassification of any information that would otherwise be 
     declassified under subparagraph (C) or paragraph (3) may be 
     postponed if an official of the agency with original 
     classification authority over the information determines that 
     extraordinary circumstances require that the information 
     remain classified.
       (ii) Procedures.--An official may not implement a 
     determination under clause (i) until the official--

       (I) obtains the concurrence of the Director of the Office 
     of National Classification and Declassification Oversight in 
     the determination; and
       (II) submits to the President a certification of the 
     determination.

       (iii) Review.--The President shall establish a schedule for 
     the review of the need for continued classification of any 
     information the declassification of which is postponed under 
     this subparagraph. Such information shall be declassified at 
     the earliest possible time after the termination of the 
     circumstances with respect to such information referred to in 
     clause (i).
       (E) Concurrences.--A concurrence at the direction of the 
     Classification and Declassification Review Board on appeal 
     under section 4(c)(2) and a concurrence at the direction of 
     the President on appeal under section 5(a) shall be treated 
     as a concurrence of the Director of the Office of National 
     Classification and Declassification Oversight for purposes of 
     subparagraphs (B) and (D)(ii)(I).
       (5) Approval required for declassification of 
     information.--Except as provided in this Act, no information 
     classified under this Act may be declassified or released 
     without the approval of the agency that originally classified 
     the information.
       (6) Specification of declassification date or event.--Each 
     agency official making a decision to classify information 
     under this subsection shall specify upon such information the 
     date or event of its declassification.
       (f) Declassification of Current Classified Information.--
       (1) Procedures.--The President shall establish procedures 
     for declassifying information that was classified before the 
     effective date of this Act. Such procedures shall, to the 
     maximum extent practicable, be consistent with the provisions 
     of this section.
       (2) Automatic Declassification.--The procedures established 
     under paragraph (1) shall include procedures for the 
     automatic declassification of information referred to in that 
     paragraph that has remained classified for more than 25 years 
     as of the effective date referred to in that paragraph.
       (3) Notice and comment.--
       (A) Notice.--The President shall publish notice in the 
     Federal Register of the procedures proposed to be established 
     under this subsection.
       (B) Comment.--The President shall provide an opportunity 
     for interested persons to submit comments on the procedures 
     covered by subparagraph (A).
       (C) Deadline.--The President shall complete the 
     establishment of procedures under this subsection not later 
     than 60 days after publishing notice in the Federal Register 
     under subparagraph (A). Upon completion of the establishment 
     of such procedures, the President shall publish in the 
     Federal Register notice regarding such procedures.
       (g) Conforming Amendment to FOIA.--Section 552(b)(1) of 
     title 5, United States Code, is amended to read as follows:
       ``(1) (A) specifically authorized to be classified under 
     the Government Secrecy Reform Act of 1999 or specifically 
     authorized under criteria established by an Executive order 
     to be kept secret in the interest of national security and 
     (B) are in fact properly classified pursuant to that Act or 
     Executive order;''.

     SEC. 3. OFFICE OF NATIONAL CLASSIFICATION AND 
                   DECLASSIFICATION OVERSIGHT.

       (a) Establishment.--
       (1) In general.--There is established within the National 
     Archives and Records Administration an office to be known as 
     the Office of National Classification and Declassification 
     Oversight (in this section referred to as the ``Oversight 
     Office'').
       (2) Purpose.--The purpose of the Oversight Office is to 
     standardize the policies and procedures used by agencies to 
     assess information for initial classification and to review 
     information for declassification.
       (3) Policy guidance.--On behalf of the President, the 
     Assistant to the President for National Security Affairs 
     shall provide policy guidance to the Oversight Office.
       (4) Budget.--
       (A) Consultation in preparation.--The Archivist of the 
     United States shall consult with the Assistant to the 
     President for National Security Affairs and the Director of 
     the Office of Management and Budget in preparing the annual 
     budget request for the Oversight Office.
       (B) Presentation.--The annual budget request for the 
     Oversight Office shall appear as a distinct item in the 
     annual budget request of the National Archives and Records 
     Administration.
       (b) Director.--
       (1) In general.--There shall be a Director of the Office of 
     National Classification and Declassification Oversight who 
     shall be appointed by the President, by and with the advice 
     and consent of the Senate. The Director shall be the head of 
     the Oversight Office.
       (2) Qualifications.--To the maximum extent practicable, the 
     President shall nominate for appointment as Director 
     individuals who have experience in policy relating to 
     classification and declassification of information, records 
     management, and information technology.
       (3) Supervision.--The Director shall report directly to the 
     Archivist of the United States.
       (4) Executive schedule.--Section 5315 of title 5, United 
     States Code, is amended by adding at the end the following:
       ``Director, Office of National Classification and 
     Declassification Oversight.''.
       (c) Personnel and Resources.--
       (1) Transfer.--All personnel, funds, and other resources of 
     the Information Security Oversight Office are hereby 
     transferred to the Oversight Office and shall constitute the 
     personnel, funds, and other resources of the Oversight 
     Office.
       (2) Interim director.--The Director of the Information 
     Security Oversight Office shall serve as acting Director of 
     the Oversight Office until a Director of the Oversight Office 
     is appointed under subsection (b)(1).
       (d) Duties.--The Oversight Office shall--
       (1) coordinate and oversee the classification and 
     declassification policies and practices of agencies in order 
     to ensure the compliance of such policies and procedures with 
     the provisions of this Act;
       (2) develop and issue directives, instructions, and 
     educational aids and forms to assist in the implementation of 
     the provisions of this Act;
       (3) develop a program of research and development of 
     technologies to improve the efficiency of classification and 
     declassification processes under this Act;
       (4) determine whether or not information is classified in 
     violation of this Act and order that information determined 
     to be classified in violation of this Act be declassified by 
     the agency that originated the classification;
       (5) determine whether an agency determination to postpone 
     the declassification of information under section 2(e)(4) is 
     consistent with the provisions of this Act;

[[Page S401]]

       (6) review the proposed budgets of agencies for 
     classification and declassification programs and make 
     recommendations to the Office of Management and Budget as to 
     means of ensuring that such budgets provide sufficient funds 
     to permit agencies to comply with the requirements of this 
     Act;
       (7) oversee special access programs consistent with its 
     other duties under this section;
       (8) conduct audits and on-site reviews of agency 
     classification and declassification programs; and
       (9) establish and maintain a Government-wide database on 
     the declassification activities of the Government, including 
     an unclassified version of the database available to the 
     public.
       (e) Agency Cooperation.--
       (1) In general.--Subject to the control and supervision of 
     the President, each agency shall provide the Oversight Office 
     such information and other cooperation as the Director of the 
     Oversight Office considers appropriate to permit the 
     Oversight Office to carry out its duties.
       (2) Special access programs.--The head of an agency with 
     jurisdiction over special access programs may--
       (A) limit access to such programs to not more than the 
     Director and one other employee of the Oversight Office; and
       (B) upon the concurrence of the President, deny access by 
     the Oversight Office to any such program if the head of such 
     agency determines that such access would pose an exceptional 
     risk to national security.
       (f) Appeals from Certain Decisions.--
       (1) In general.--An agency may appeal to the Classification 
     and Declassification Review Board any declassification order 
     or determination under paragraph (4) or (5) of subsection 
     (d).
       (2) Deadline.--An agency may appeal an order or 
     determination under paragraph (1) only if the agency submits 
     the appeal to the Board not later than 60 days after the date 
     of the order or determination, as the case may be.
       (g) Protection of Information.--The Director of the 
     Oversight Office shall take appropriate actions to prevent 
     disclosure to the public of classified information that is 
     provided to the Oversight Office. Such actions shall include 
     a requirement that the staff of the Oversight Office possess 
     security clearances appropriate for the information 
     considered and reviewed by the Oversight Office.
       (h) Annual Report.--
       (1) Requirement.--Not later than March 31 each year, the 
     Director of the Oversight Office shall submit to Congress and 
     to the President a report on the compliance of agencies with 
     the requirements of this Act.
       (2) Elements.--Each report under paragraph (1) shall--
       (A) include a summary of the extent of the compliance of 
     agencies Government-wide with the requirements of this Act as 
     of the date of such report; and
       (B) set forth an assessment of the compliance of each 
     agency with such requirements as of that date.
       (3) Form.--Each report under paragraph (1) shall be 
     submitted in unclassified form, but may include a classified 
     annex.
       (4) Availability.--The Oversight Office shall make 
     available to the public the unclassified form of each report 
     under paragraph (1) on an Internet Web site maintained by the 
     Oversight Office.

     SEC. 4. CLASSIFICATION AND DECLASSIFICATION REVIEW BOARD.

       (a) Establishment.--There is established within the 
     Executive Office of the President a board to be known as the 
     Classification and Declassification Review Board (in this 
     section referred to as the ``Board'').
       (b) Membership and Procedural Matters.--
       (1) In general.--The Board shall consist of five members 
     appointed by the President, by and with the advice and 
     consent of the Senate, of whom--
       (A) four shall be private citizens;
       (B) two shall be officers or employees of the Federal 
     Government; and
       (2) Qualifications.--
       (A) Private citizens.--The members of the Board who are 
     private citizens shall be appointed from among individuals 
     who are distinguished historians, political scientists, 
     archivists, and other social scientists or who otherwise have 
     demonstrated expertise in matters relating to the national 
     security of the United States, records management, or 
     government information policy.
       (B) Government employees.--The members of the Board who are 
     officers or employees of the Federal Government shall be 
     appointed from among such officers and employees who have 
     demonstrated expertise in matters referred to in subparagraph 
     (A).
       (C) Change in employment.--Notwithstanding any provision of 
     paragraph (1), the commencement or termination of service as 
     an officer or employee of the Federal Government of an 
     individual appointed as a member of the Board under that 
     paragraph before such commencement or termination shall not 
     affect the continuation of such individual as a member of the 
     Board.
       (3) Nominations.--
       (A) Consultation.--In nominating individuals for 
     appointment to the Board, the President shall consult with 
     the Secretary of Defense, Secretary of State, Attorney 
     General, Assistant to the President for National Security 
     Affairs, Director of Central Intelligence, Archivist of the 
     United States, and Director of the Office of Management and 
     Budget.
       (B) Limitation.--The President may not nominate for 
     appointment to the Board any individual who has previously 
     served as a member of the Board.
       (C) Initial nominations.--The President shall make the 
     first nominations of individuals for appointment to the Board 
     not later than 120 days after the effective date of this Act.
       (D) Bipartisan Representation.--Of the members of the Board 
     appointed under paragraph (1)(A), not more than tow shall be 
     of the same political party.
       (4) Presiding Officer.--The President shall designate a 
     member of the Board appointed under paragraph (1)(A) to serve 
     as the Presiding Officer of the Board.
       (5) Term.--Members of the Board shall be appointed for a 
     term of 4 years, except that of the members first nominated 
     for appointment to the Board under paragraph (3)(C)--
       (A) two shall be nominated for a 4-year term (including the 
     member who shall be the Presiding Officer of the Board);
       (B) two shall be nominated for a 3-year term; and
       (C) two shall be nominated for a 2-year term.
       (6) Vacancies.--An individual appointed to fill a vacancy 
     shall be appointed for the unexpired term of the member 
     replaced.
       (7) Procedural matters.--
       (A) Quorum.--A majority of the members of the Board shall 
     constitute a quorum, but a lesser number of members may hold 
     hearings.
       (B) Rules and procedures.--
       (i) Requirement.--The Board shall establish, and may from 
     time to time modify, such rules and procedures as the Board 
     considers appropriate to carry out its duties. Such rules and 
     procedures shall provide that a decision of the Board 
     requires a vote of a majority of the members of the Board.
       (ii) Publication.--The Board shall publish its rules and 
     procedures in the Federal Register.
       (iii) Initial rules and procedures.--The Board shall 
     establish its initial rules and procedures not later than 90 
     days after the date of initial meeting of the Board.
       (c) Powers and Duties.--The Board shall--
       (1) decide on appeals by agencies which challenge a 
     declassification order of the Office of National 
     Classification and Declassification Oversight under section 
     3(d)(4);
       (2) decide on appeals by agencies which challenge a 
     determination of that Office not to concur in the 
     postponement of the declassification of information under 
     section 3(d)(5); and
       (3) decide on appeals by persons or entities who have filed 
     requests for mandatory declassification review.
       (d) Protection of Information.--The Board shall take 
     appropriate actions to prevent the disclosure to the public 
     of classified information that is provided to the Board. Such 
     actions shall include a requirement that the members and 
     staff of the Board possess security clearances appropriate 
     for the information considered and reviewed by the Board.
       (e) Personnel Matters.--
       (1) Compensation.--
       (A) Compensation.--Each member of the Board who is a 
     private citizen shall be compensated at a rate equal to the 
     daily equivalent of the annual rate of basic pay prescribed 
     for level IV of the Executive Schedule under section 5315 of 
     title 5, United States Code, for each day (including travel 
     time) during which such member is engaged in the performance 
     of the duties of the Board.
       (B) Travel expenses.--The members of the Board shall be 
     allowed travel expenses, including per diem in lieu of 
     subsistence, at rates authorized for employees of agencies 
     under subchapter I of chapter 57 of title 5, United States 
     Code, while away from their homes or regular places of 
     business in the performance of services for the Board.
       (2) Staff.--The Presiding Officer of the Board may, with 
     the concurrence of the Board, appoint such staff, including 
     an executive secretary, as the Board requires to carry out 
     its duties.
       (3) Detail of government employees.--Any Federal Government 
     employee may be detailed to the Board without reimbursement, 
     and such detail shall be without interruption or loss of 
     civil service status or privilege.

     SEC. 5. APPEAL OF DETERMINATIONS OF CLASSIFICATION AND 
                   DECLASSIFICATION REVIEW BOARD.

       (a) Appeal.--Subject to subsection (c), any agency may 
     appeal to the President a decision or other action of the 
     Classification and Declassification Review Board under 
     section 4(c).
       (b) Deadline.--An agency may appeal a decision or other 
     action under subsection (a) only if the agency submits the 
     appeal to the President not later than 60 days after the date 
     of the decision or other action concerned.
       (c) Finality.--A decision of the President on an appeal 
     under subsection (a) shall be final.

     SEC. 6. PROHIBITIONS.

       (a) Withholding Information from Congress.--Nothing in this 
     Act shall be construed to authorize the withholding of 
     information from Congress.
       (b) Judicial Review.--Except in the case of the amendment 
     to section 552 of title 5, United States Code, made by 
     section 2(g), no person may seek or obtain judicial review of 
     any provision of this Act or any action taken under a 
     provision of this Act.

[[Page S402]]

     SEC. 7. DEFINITIONS.

       In this Act:
       (1) The term ``agency'' means any executive agency as 
     defined in section 105 of title 5, United States Code, any 
     military department as defined in section 102 of such title, 
     and any other entity in the Executive Branch of the 
     Government that comes into the possession of classified 
     information.
       (2) The terms ``classify'', ``classified'', and 
     ``classification'' refer to the process by which information 
     is determined to require protection from unauthorized 
     disclosure pursuant to this Act in order to protect the 
     national security of the United States.
       (3) The terms ``declassify'', ``declassified'', and 
     ``declassification'' refer to the process by which 
     information that has been classified is determined to no 
     longer require protection from unauthorized disclosure 
     pursuant to this Act.

     SEC. 8. EFFECTIVE DATE.

       This Act and the amendment made by section 2(g) shall take 
     effect 180 days after the date of the enactment of this Act.

  Mr. HELMS. Mr. President, I am pleased to join Senator Moynihan today 
in introducing a bill that would for the first time place in statute 
the government system for the classification of information. To date 
this has been accomplished solely through executive order.
  The statute is based on the recommendations contained in the report 
of the Commission to Protect and Reduce Government Secrecy chaired by 
my colleague Pat Moynihan, the senior senator from New York. The 
Secrecy Commission achieved a unified report of recommendations--a feat 
that should not be underrated, especially in Washington. The bill also 
makes changes based on recommendations by the Government Affairs 
Committee during its consideration of our legislation during the 105th 
Congress.
  The bill recognizes that over-classification can actually weaken the 
protections of those secrets that truly are in our national interest. 
All the same I am obliged to begin with a reiteration of the obvious--
that the protection of true national security information remains vital 
to the well-being and security of the United States. The end of the 
Cold War notwithstanding, the United States continues to face serious 
and long-term threats from a variety of fronts. While communist and 
anti-American regimes, such as North Korea, Cuba, Iran and Iraq, 
continue to wage a war against the United States, new threats have 
arisen as well. Indeed, there is even a growing trend of espionage 
conducted not by our enemies but by American allies. Such espionage is 
on the rise especially against U.S. economic secrets.
  At first blush, a push to reduce government secrecy may seem at odds 
with these increasing threats. I am convinced it is not. The sheer 
volume of government ``secrets''--and their costs to the taxpayers and 
U.S. business--is staggering. In 1996 the taxpayers spent more than 
$5.2 billion to protect classified information. We know all too well 
from our own experiences that when everything is secret nothing is 
secret.
  Secrecy all too often then becomes a political tool used by Executive 
Branch agencies to shield information which may be politically 
sensitive or policies which may be unpopular with the American people. 
Worse yet, information may be classified to hide from public view 
illegal or unethical activity. On numerous occasions, I, and other 
Members of Congress, have found the Executive Branch to be reluctant to 
share certain information, the nature of which is not truly a 
``national secret,'' but which would potentially politically 
embarrassing to officials in the Executive Branch or which would make 
known an illegal or indefensible policy.
  I have also found that one of the largest impediments to openness is 
the perverse incentives of the government bureaucracy itself in favor 
of classification, and the lack of accountability for those who do the 
actual classification. I strongly endorse the Commission's 
recommendation of adding individual accountability to the process by 
requiring a detailed justification of the decision to classify.
  On the other hand, declassification decisions can be politicized. 
Limited resources for declassification are used to declassify 
information for political purposes. Only recently, in the case of 
documents relating to U.S. activities in Central and South America the 
Administration has made decisions to declassify documents at the 
request of certain interest groups. As a result the resources for 
routine declassification are being redirected to serve political ends. 
This bill would serve to eliminate politicized declassification 
decisions by requiring routine declassification and oversight by an 
independent board.
  I would add a note of caution regarding declassification, however. In 
the course of the two years of its work, the Commission became very 
interested in the declassification of existing documents and materials. 
In a perfect world, if information remains relevant to true U.S. 
national interests it should remain classified indefinitely. 
Information that does not compromise U.S. interests and sources should 
be made public. We all realize, however, that this is a tremendously 
costly venture. In fact, the Commission was unable to come up with 
solid data on the true cost of declassification.
  In this era when Congress has finally begun to grasp the essential 
need to reduce government spending and balance the budget, the issue of 
balancing costs and benefits is an essential one. The financial costs 
to the American taxpayers must be balanced against the necessity of the 
declassification. The real lesson to take from the work of this 
Commission is the need to redress for the future the problems of over 
classification and a systematic process for declassification, so that 
the costs and timeliness of declassification does not pose the same 
economic and regulatory burdens on future generations. At the same 
time, it may be too costly to declassify all of the countless 
classified documents now in existence.
  I hope the 106th Congress will complete the work of the 105th 
Congress and bring government wide rationalization to the 
classification process. It is an area where tough Congressional 
oversight is long overdue.
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