[Congressional Record Volume 169, Number 120 (Thursday, July 13, 2023)]
[Senate]
[Pages S2654-S2659]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 520. Mr. CRAPO (for himself, Mrs. Shaheen, Mr. Risch, Mr. Thune,
Mr. Cassidy, and Mrs. Blackburn) submitted an amendment intended to be
proposed by him to the bill S. 2226, to authorize appropriations for
fiscal year 2024 for military activities of the Department of Defense,
for military construction, and for defense activities of the Department
of Energy, to prescribe military personnel strengths for such fiscal
year, and for other purposes; which was ordered to lie on the table; as
follows:
At the end of title X, add the following:
Subtitle H--Bring Our Heroes Home Act
SEC. 1091. SHORT TITLE.
This subtitle may be cited as the ``Bring Our Heroes Home
Act''.
[[Page S2655]]
SEC. 1092. FINDINGS, DECLARATIONS, AND PURPOSES.
(a) Findings and Declarations.--Congress finds and declares
the following:
(1) A vast number of records relating to missing Armed
Forces and civilian personnel have not been identified,
located, or transferred to the National Archives following
review and declassification. Only in the rarest cases is
there any legitimate need for continued protection of records
pertaining to missing Armed Forces and civilian personnel who
have been missing for decades.
(2) There has been insufficient priority placed on
identifying, locating, reviewing, or declassifying records
relating to missing Armed Forces and civilian personnel and
then transferring the records to the National Archives for
public access.
(3) Mandates for declassification set forth in multiple
Executive orders have been broadly written, loosely
interpreted, and often ignored by Federal agencies in
possession and control of records related to missing Armed
Forces and civilian personnel.
(4) No individual or entity has been tasked with oversight
of the identification, collection, review, and
declassification of records related to missing Armed Forces
and civilian personnel.
(5) The interest, desire, workforce, and funding of Federal
agencies to assemble, review, and declassify records relating
to missing Armed Forces and civilian personnel have been
lacking.
(6) All records of the Federal Government relating to
missing Armed Forces and civilian personnel should be
preserved for historical and governmental purposes and for
public research.
(7) All records of the Federal Government relating to
missing Armed Forces and civilian personnel should carry a
presumption of declassification, and all such records should
be disclosed under this subtitle to enable the fullest
possible accounting for missing Armed Forces and civilian
personnel.
(8) Legislation is necessary to create an enforceable,
independent, and accountable process for the public
disclosure of records relating to missing Armed Forces and
civilian personnel.
(9) Legislation is necessary because section 552 of title
5, United States Code (commonly known as the ``Freedom of
Information Act''), as implemented by Federal agencies, has
prevented the timely public disclosure of records relating to
missing Armed Forces and civilian personnel.
(b) Purposes.--The purposes of this subtitle are--
(1) to provide for the creation of the Missing Armed Forces
and Civilian Personnel Records Collection at the National
Archives; and
(2) to require the expeditious public transmission to the
Archivist and public disclosure of missing Armed Forces and
civilian personnel records, subject to narrow exceptions, as
set forth in this subtitle.
SEC. 1093. DEFINITIONS.
In this subtitle:
(1) Archivist.--The term ``Archivist'' means Archivist of
the United States.
(2) Collection.--The term ``Collection'' means the Missing
Armed Forces and Civilian Personnel Records Collection
established under section 1094(a).
(3) Executive agency.--The term ``Executive agency''--
(A) means an agency, as defined in section 552(f) of title
5, United States Code;
(B) includes any Executive department, military department,
Government corporation, Government controlled corporation, or
other establishment in the executive branch of the Federal
Government, including the Executive Office of the President,
any branch of the Armed Forces, and any independent
regulatory agency; and
(C) does not include any non-appropriated agency,
department, corporation, or establishment.
(4) Executive branch missing armed forces and civilian
personnel record.--The term ``executive branch missing Armed
Forces and civilian personnel record'' means a missing Armed
Forces and civilian personnel record of an Executive agency,
or information contained in such a missing Armed Forces and
civilian personnel record obtained by or developed within the
executive branch of the Federal Government.
(5) Government office.--The term ``Government office''
means an Executive agency, the Library of Congress, or the
National Archives.
(6) Missing armed forces and civilian personnel.--
(A) Definition.--The term ``missing Armed Forces and
civilian personnel'' means one or more missing persons; and
(B) Inclusions.--The term ``missing Armed Forces and
civilian personnel'' includes an individual who was a missing
person and whose status was later changed to ``missing and
presumed dead''.
(7) Missing armed forces and civilian personnel record.--
The term ``missing Armed Forces and civilian personnel
record'' means a record that relates, directly or indirectly,
to the loss, fate, or status of missing Armed Forces and
civilian personnel that--
(A) was created or made available for use by, obtained by,
or otherwise came into the custody, possession, or control
of--
(i) any Government office;
(ii) any Presidential library; or
(iii) any of the Armed Forces; and
(B) relates to 1 or more missing Armed Forces and civilian
personnel who became missing persons during the period--
(i) beginning on December 7, 1941; and
(ii) ending on the date of enactment of this Act.
(8) Missing person.--The term ``missing person'' means--
(A) a person described in paragraph (1) of section 1513 of
title 10, United States Code; and
(B) any other civilian employee of the Federal Government
or an employee of a contractor of the Federal Government who
serves in direct support of, or accompanies, the Armed Forces
in the field under orders and who is in a missing status (as
that term is defined in paragraph (2) of such section 1513).
(9) National archives.--The term ``National Archives''--
(A) means the National Archives and Records Administration;
and
(B) includes any component of the National Archives and
Records Administration (including Presidential archival
depositories established under section 2112 of title 44,
United States Code).
(10) Official investigation.--The term ``official
investigation'' means a review, briefing, inquiry, or hearing
relating to missing Armed Forces and civilian personnel
conducted by a Presidential commission, committee of
Congress, or agency, regardless of whether it is conducted
independently, at the request of any Presidential commission
or committee of Congress, or at the request of any official
of the Federal Government.
(11) Originating body.--The term ``originating body'' means
the Government office or other initial source that created a
record or particular information within a record.
(12) Public interest.--The term ``public interest'' means
the compelling interest in the prompt public disclosure of
missing Armed Forces and civilian personnel records for
historical and governmental purposes, for public research,
and for the purpose of fully informing the people of the
United States, most importantly families of missing Armed
Forces and civilian personnel, about the fate of the missing
Armed Forces and civilian personnel and the process by which
the Federal Government has sought to account for them.
(13) Record.--The term ``record'' has the meaning given the
term ``records'' in section 3301 of title 44, United States
Code.
(14) Review board.--The term ``Review Board'' means the
Missing Armed Forces and Civilian Personnel Records Review
Board established under section 1097.
SEC. 1094. MISSING ARMED FORCES AND CIVILIAN PERSONNEL
RECORDS COLLECTION AT THE NATIONAL ARCHIVES.
(a) Establishment of Collection.--Not later than 90 days
after confirmation of the initial members of the Missing
Armed Forces and Civilian Personnel Records Review Board
established under section 1097, the Archivist shall--
(1) commence establishment of a collection of records to be
known as the ``Missing Armed Forces and Civilian Personnel
Records Collection'';
(2) commence preparing the subject guidebook and index to
the Collection; and
(3) establish criteria and acceptable formats for Executive
agencies to follow when transmitting copies of missing Armed
Forces and civilian personnel records to the Archivist, to
include required metadata.
(b) Regulations.--Not later than 90 days after the date of
the swearing in of the Board members, the Review Board shall
promulgate rules to establish guidelines and processes for
the disclosure of records contained in the Collection.
SEC. 1095. REVIEW, IDENTIFICATION, TRANSMISSION TO THE
NATIONAL ARCHIVES, AND PUBLIC DISCLOSURE OF
MISSING ARMED FORCES AND CIVILIAN PERSONNEL
RECORDS BY GOVERNMENT OFFICES.
(a) In General.--
(1) Preparation.--As soon as practicable after the date of
enactment of this Act, and sufficiently in advance of the
deadlines established under this subtitle, each Government
office shall--
(A) identify and locate any missing Armed Forces and
civilian personnel records in the custody, possession, or
control of the Government office, including intelligence
reports, congressional inquiries, memoranda to or from the
White House and other Federal departments and agencies,
Prisoner of War (POW) debriefings, live sighting reports,
documents relating to POW camps, movement of POWs,
exploitation of POWs, experimentation on POWs, or status
changes from Missing in Action (MIA) to Killed in Action
(KIA); and
(B) prepare for transmission to the Archivist in accordance
with the criteria and acceptable formats established by the
Archivist a copy of any missing Armed Forces and civilian
personnel records that have not previously been transmitted
to the Archivist by the Government office.
(2) Certification.--Each Government office shall submit to
the Archivist, under penalty of perjury, a certification
indicating--
(A) whether the Government office has conducted a thorough
search for all missing Armed Forces and civilian personnel
records in the custody, possession, or control of the
Government office; and
(B) whether a copy of any missing Armed Forces and civilian
personnel record has not been transmitted to the Archivist.
(3) Preservation.--No missing Armed Forces and civilian
personnel record shall be destroyed, altered, or mutilated in
any way.
(4) Effect of previous disclosure.--Information that was
made available or disclosed
[[Page S2656]]
to the public before the date of enactment of this Act in a
missing Armed Forces and civilian personnel record may not be
withheld, redacted, postponed for public disclosure, or
reclassified.
(5) Withheld and substantially redacted records.--For any
missing Armed Forces and civilian personnel record that is
transmitted to the Archivist which a Government office
proposes to substantially redact or withhold in full from
public access, the head of the Government office shall submit
an unclassified and publicly releasable report to the
Archivist, the Review Board, and each appropriate committee
of the Senate and the House of Representatives justifying the
decision of the Government office to substantially redact or
withhold the record by demonstrating that the release of
information would clearly and demonstrably be expected to
cause an articulated harm, and that the harm would be of such
gravity as to outweigh the public interest in access to the
information.
(b) Review.--
(1) In general.--Except as provided under paragraph (5),
not later than 180 days after confirmation of the initial
members of the Missing Armed Forces and Civilian Personnel
Records Review Board, each Government office shall, in
accordance with the criteria and acceptable formats
established by the Archivist--
(A) identify, locate, copy, and review each missing Armed
Forces and civilian personnel record in the custody,
possession, or control of the Government office for
transmission to the Archivist and disclosure to the public
or, if needed, review by the Review Board; and
(B) cooperate fully, in consultation with the Archivist, in
carrying out paragraph (3).
(2) Requirement.--The Review Board shall promulgate rules
for the disclosure of relevant records by Government offices
under paragraph (1).
(3) National archives records.--Not later than 180 days
after confirmation of the initial members of the Missing
Armed Forces and Civilian Personnel Records Review Board, the
Archivist shall--
(A) locate and identify all missing Armed Forces and
civilian personnel records in the custody of the National
Archives as of the date of enactment of this Act that remain
classified, in whole or in part;
(B) notify a Government office if the Archivist locates and
identifies a record of the Government office under
subparagraph (A); and
(C) make each classified missing Armed Forces and civilian
personnel record located and identified under subparagraph
(A) available for review by Executive agencies through the
National Declassification Center established under Executive
Order 13526 or any successor order.
(4) Records already public.--A missing Armed Forces and
civilian personnel record that is in the custody of the
National Archives on the date of enactment of this Act and
that has been publicly available in its entirety without
redaction shall be made available in the Collection without
any additional review by the Archivist, the Review Board, or
any other Government office under this subtitle.
(5) Exemptions.--
(A) Department of defense pow/mia accounting agency.--The
Defense POW/MIA Accounting Agency (DPAA) is exempt from the
requirement under this subsection to declassify and transmit
to the Archivist documents in its custody or control that
pertain to a specific case or cases that DPAA is actively
investigating or developing for the purpose of locating,
disinterring, or identifying a missing member of the Armed
Forces
(B) Department of defense military service casualty offices
and department of state service casualty offices.--The
Department of Defense Military Service Casualty Offices and
the Department of State Service Casualty Offices are exempt
from the requirement to declassify and transmit to the
Archivist documents in their custody or control that pertain
to individual cases with respect to which the office is
lending support and assistance to the families of missing
individuals.
(c) Transmission to the National Archives.--Each Government
office shall--
(1) not later than 180 days after confirmation of the
initial members of the Missing Armed Forces and Civilian
Personnel Records Review Board, commence transmission to the
Archivist of copies of the missing Armed Forces and civilian
personnel records in the custody, possession, or control of
the Government office; and
(2) not later than 1 year after confirmation of the initial
members of the Missing Armed Forces and Civilian Personnel
Records Review Board, complete transmission to the Archivist
of copies of all missing Armed Forces and civilian personnel
records in the possession or control of the Government
office.
(d) Periodic Review of Postponed Missing Armed Forces and
Civilian Personnel Records.--
(1) In general.--All missing Armed Forces and civilian
personnel records, or information within a missing Armed
Forces and civilian personnel record, the public disclosure
of which has been postponed under the standards under this
subtitle shall be reviewed by the originating body--
(A)(i) periodically, but not less than every 5 years, after
the date on which the Review Board terminates under section
1097(o); and
(ii) at the direction of the Archivist; and
(B) consistent with the recommendations of the Review Board
under section 1099(b)(3)(B).
(2) Contents.--
(A) In general.--A periodic review of a missing Armed
Forces and civilian personnel record, or information within a
missing Armed Forces and civilian personnel record, by the
originating body shall address the public disclosure of the
missing Armed Forces and civilian personnel record under the
standards under this subtitle.
(B) Continued postponement.--If an originating body
conducting a periodic review of a missing Armed Forces and
civilian personnel record, or information within a missing
Armed Forces and civilian personnel record, the public
disclosure of which has been postponed under the standards
under this subtitle, determines that continued postponement
is required, the originating body shall provide to the
Archivist an unclassified written description of the reason
for the continued postponement that the Archivist shall
highlight and make accessible on a publicly accessible
website administered by the National Archives.
(C) Scope.--The periodic review of postponed missing Armed
Forces and civilian personnel records, or information within
a missing Armed Forces and civilian personnel record, shall
serve the purpose stated in section 1092(b)(2), to provide
expeditious public disclosure of missing Armed Forces and
civilian personnel records, to the fullest extent possible,
subject only to the grounds for postponement of disclosure
under section 1096.
(D) Disclosure absent certification by president.--Not
later than 10 years after confirmation of the initial members
of the Missing Armed Forces and Civilian Personnel Records
Review Board, all missing Armed Forces and civilian personnel
records, and information within a missing Armed Forces and
civilian personnel record, shall be publicly disclosed in
full, and available in the Collection, unless--
(i) the head of the originating body, Executive agency, or
other Government office recommends in writing that continued
postponement is necessary;
(ii) the written recommendation described in clause (i)--
(I) is provided to the Archivist in unclassified and
publicly releasable form not later than 180 days before the
date that is 10 years after confirmation of the initial
members of the Missing Armed Forces and Civilian Personnel
Records Review Board; and
(II) includes--
(aa) a justification of the recommendation to postpone
disclosure with clear and convincing evidence that the
identifiable harm is of such gravity that it outweighs the
public interest in disclosure; and
(bb) a recommended specified time at which or a specified
occurrence following which the material may be appropriately
disclosed to the public under this subtitle;
(iii) the Archivist transmits all recommended postponements
and the recommendation of the Archivist to the President not
later than 90 days before the date that is 10 years after the
date of confirmation of the initial members of the Missing
Armed Forces and Civilian Personnel Records Review Board; and
(iv) the President transmits to the Archivist a
certification indicating that continued postponement is
necessary and the identifiable harm, as demonstrated by clear
and convincing evidence, is of such gravity that it outweighs
the public interest in disclosure not later than the date
that is 10 years after confirmation of the initial members of
the Missing Armed Forces and Civilian Personnel Records
Review Board.
SEC. 1096. GROUNDS FOR POSTPONEMENT OF PUBLIC DISCLOSURE OF
RECORDS.
(a) In General.--Disclosure to the public of a missing
Armed Forces and civilian personnel record or particular
information in a missing Armed Forces and civilian personnel
record created after the date that is 25 years before the
date of the review of the missing Armed Forces and civilian
personnel record by the Archivist may be postponed subject to
the limitations under this subtitle only--
(1) if it pertains to--
(A) military plans, weapons systems, or operations;
(B) foreign government information;
(C) intelligence activities (including covert action),
intelligence sources or methods, or cryptology;
(D) foreign relations or foreign activities of the United
States, including confidential sources;
(E) scientific, technological, or economic matters relating
to the national security;
(F) United States Government programs for safeguarding
nuclear materials or facilities;
(G) vulnerabilities or capabilities of systems,
installations, infrastructures, projects, plans, or
protection services relating to the national security; or
(H) the development, production, or use of weapons of mass
destruction; and
(2) the threat posed by the public disclosure of the
missing Armed Forces and civilian personnel record or
information is of such gravity that it outweighs the public
interest in disclosure.
(b) Older Records.--Disclosure to the public of a missing
Armed Forces and civilian personnel record or particular
information in a missing Armed Forces and civilian personnel
record created on or before the date that is 25 years before
the date of the review of the missing Armed Forces and
civilian
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personnel record by the Archivist may be postponed subject to
the limitations under this subtitle only if, as demonstrated
by clear and convincing evidence--
(1) the release of the information would be expected to--
(A) reveal the identity of a confidential human source, a
human intelligence source, a relationship with an
intelligence or security service of a foreign government or
international organization, or a nonhuman intelligence
source, or impair the effectiveness of an intelligence method
currently in use, available for use, or under development;
(B) reveal information that would impair United States
cryptologic systems or activities;
(C) reveal formally named or numbered United States
military war plans that remain in effect, or reveal
operational or tactical elements of prior plans that are
contained in such active plans; or
(D) reveal information, including foreign government
information, that would cause serious harm to relations
between the United States and a foreign government, or to
ongoing diplomatic activities of the United States; and
(2) the threat posed by the public disclosure of the
missing Armed Forces and civilian personnel record or
information is of such gravity that it outweighs the public
interest in disclosure.
(c) Exception.--Regardless of the date on which a missing
Armed Forces and civilian personnel record was created,
disclosure to the public of information in the missing Armed
Forces and civilian personnel record may be postponed if--
(1) the public disclosure of the information would reveal
the name or identity of a living person who provided
confidential information to the United States and would pose
a substantial risk of harm to that person;
(2) the public disclosure of the information could
reasonably be expected to constitute an unwarranted invasion
of personal privacy, and that invasion of privacy is so
substantial that it outweighs the public interest;
(3) the public disclosure of the information could
reasonably be expected to cause harm to the methods currently
in use or available for use by members of the Armed Forces to
survive, evade, resist, or escape; or
(4) the public disclosure of such information would
conflict with United States law or regulations.
SEC. 1097. ESTABLISHMENT AND POWERS OF THE MISSING ARMED
FORCES AND CIVILIAN PERSONNEL RECORDS REVIEW
BOARD.
(a) Establishment.--There is established as an independent
establishment in the executive branch a board to be known as
the ``Missing Armed Forces and Civilian Personnel Records
Review Board''.
(b) Membership.--
(1) Appointments.--The President shall appoint, by and with
the advice and consent of the Senate, 5 individuals to serve
as a member of the Review Board to ensure and facilitate the
review, transmission to the Archivist, and public disclosure
of missing Armed Forces and civilian personnel records.
(2) Qualifications.--The President shall appoint
individuals to serve as members of the Review Board--
(A) without regard to political affiliation;
(B) who are citizens of the United States of integrity and
impartiality;
(C) who are not an employee of an Executive agency on the
date of the appointment;
(D) who have high national professional reputation in their
fields who are capable of exercising the independent and
objective judgment necessary to the fulfillment of their role
in ensuring and facilitating the identification, location,
review, transmission to the Archivist, and public disclosure
of missing Armed Forces and civilian personnel records;
(E) who possess an appreciation of the value of missing
Armed Forces and civilian personnel records to scholars, the
Federal Government, and the public, particularly families of
missing Armed Forces and civilian personnel;
(F) not less than 1 of whom is a professional historian;
and
(G) not less than 1 of whom is an attorney.
(3) Deadlines.--
(A) In general.--Not later than 60 days after the date of
enactment of this Act, the President shall submit nominations
for all members of the Review Board.
(B) Confirmation rejected.--If the Senate votes not to
confirm a nomination to serve as a member of the Review
Board, not later than 90 days after the date of the vote the
President shall submit the nomination of an additional
individual to serve as a member of the Review Board.
(4) Consultation.--The President shall make nominations to
the Review Board after considering individuals recommended by
the American Historical Association, the Organization of
American Historians, the Society of American Archivists, the
American Bar Association, veterans' organizations, and
organizations representing families of missing Armed Forces
and civilian personnel.
(c) Security Clearances.--The appropriate departments,
agencies, and elements of the executive branch of the Federal
Government shall cooperate to ensure that an application by
an individual nominated to be a member of the Review Board,
seeking security clearances necessary to carry out the duties
of the Review Board, is expeditiously reviewed and granted or
denied.
(d) Confirmation.--
(1) Hearings.--Not later than 30 days on which the Senate
is in session after the date on which not less than 3
individuals have been nominated to serve as members of the
Review Board, the Committee on Homeland Security and
Governmental Affairs of the Senate shall hold confirmation
hearings on the nominations.
(2) Committee vote.--Not later than 14 days on which the
Senate is in session after the date on which the Committee on
Homeland Security and Governmental Affairs holds a
confirmation hearing on the nomination of an individual to
serve as a member of the Review Board, the committee shall
vote on the nomination and report the results to the full
Senate immediately.
(3) Senate vote.--Not later than 14 days on which the
Senate is in session after the date on which the Committee on
Homeland Security and Governmental Affairs reports the
results of a vote on a nomination of an individual to serve
as a member of the Review Board, the Senate shall vote on the
confirmation of the nominee.
(e) Vacancy.--Not later than 60 days after the date on
which a vacancy on the Review Board occurs, the vacancy shall
be filled in the same manner as specified for original
appointment.
(f) Chairperson.--The members of the Review Board shall
elect a member as Chairperson at the initial meeting of the
Review Board.
(g) Removal of Review Board Member.--
(1) In general.--A member of the Review Board shall not be
removed from office, other than--
(A) by impeachment by Congress; or
(B) by the action of the President for inefficiency,
neglect of duty, malfeasance in office, physical disability,
mental incapacity, or any other condition that substantially
impairs the performance of the member's duties.
(2) Judicial review.--
(A) In general.--A member of the Review Board removed from
office may obtain judicial review of the removal in a civil
action commenced in the United States District Court for the
District of Columbia.
(B) Relief.--The member may be reinstated or granted other
appropriate relief by order of the court.
(h) Compensation of Members.--
(1) Basic pay.--A member of the Review Board 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 the member is engaged in the performance of the duties
of the Review Board.
(2) Travel expenses.--A member of the Review Board shall be
allowed reasonable travel expenses, including per diem in
lieu of subsistence, at rates for employees of agencies under
subchapter I of chapter 57 of title 5, United States Code,
while away from the member's home or regular place of
business in the performance of services for the Review Board.
(i) Duties of the Review Board.--
(1) In general.--The Review Board shall consider and render
a decision on a determination by a Government office to seek
to postpone the disclosure of a missing Armed Forces and
civilian personnel record, in whole or in part.
(2) Records.--In carrying out paragraph (1), the Review
Board shall consider and render a decision regarding--
(A) whether a record constitutes a missing Armed Forces and
civilian personnel record; and
(B) whether a missing Armed Forces and civilian personnel
record, or particular information in a missing Armed Forces
and civilian personnel record, qualifies for postponement of
disclosure under this subtitle.
(j) Powers.--The Review Board shall have the authority to
act in a manner prescribed under this subtitle, including
authority to--
(1) direct Government offices to transmit to the Archivist
missing Armed Forces and civilian personnel records as
required under this subtitle;
(2) direct Government offices to transmit to the Archivist
substitutes and summaries of missing Armed Forces and
civilian personnel records that can be publicly disclosed to
the fullest extent for any missing Armed Forces and civilian
personnel record that is proposed for postponement in full or
that is substantially redacted;
(3) obtain access to missing Armed Forces and civilian
personnel records that have been identified by a Government
office;
(4) direct a Government office to make available to the
Review Board, and if necessary investigate the facts
surrounding, additional information, records, or testimony
from individuals, which the Review Board has reason to
believe is required to fulfill its functions and
responsibilities under this subtitle;
(5) hold such hearings, sit and act at such times and
places, take such testimony, receive such evidence, and
administer such oaths as the Review Board considers advisable
to carry out its responsibilities under this subtitle;
(6) hold individuals in contempt for failure to comply with
directives and mandates issued by the Review Board under this
subtitle, which shall not include the authority to imprison
or fine any individual;
(7) require any Government office to account in writing for
the destruction of any records relating to the loss, fate, or
status of missing Armed Forces and civilian personnel;
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(8) receive information from the public regarding the
identification and public disclosure of missing Armed Forces
and civilian personnel records; and
(9) make a final determination regarding whether a missing
Armed Forces and civilian personnel record will be disclosed
to the public or disclosure of the missing Armed Forces and
civilian personnel record to the public will be postponed,
notwithstanding the determination of an Executive agency.
(k) Witness Immunity.--The Review Board shall be considered
to be an agency of the United States for purposes of section
6001 of title 18, United States Code.
(l) Oversight.--
(1) In general.--The Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on
Oversight and Reform of the House of Representatives shall
have--
(A) continuing oversight jurisdiction with respect to the
official conduct of the Review Board and the disposition of
postponed records after termination of the Review Board; and
(B) upon request, access to any records held or created by
the Review Board.
(2) Duty of review board.--The Review Board shall have the
duty to cooperate with the exercise of oversight jurisdiction
under paragraph (1).
(m) Support Services.--The Administrator of the General
Services Administration shall provide administrative services
for the Review Board on a reimbursable basis.
(n) Interpretive Regulations.--The Review Board may issue
interpretive regulations.
(o) Termination and Winding Up.--
(1) In general.--Two years after the date of enactment of
this Act, the Review Board shall, by majority vote, determine
whether all Government offices have complied with the
obligations, mandates, and directives under this subtitle.
(2) Termination date.--The Review Board shall terminate on
the date that is 4 years after the date of swearing in of the
Board members.
(3) Report.--Before the termination of the Review Board
under paragraph (2), the Review Board shall submit to
Congress reports, including a complete and accurate
accounting of expenditures during its existence, and shall
complete all other reporting requirements under this
subtitle.
(4) Records.--Upon termination of the Review Board, the
Review Board shall transfer all records of the Review Board
to the Archivist for inclusion in the Collection, and no
record of the Review Board shall be destroyed.
SEC. 1098. MISSING ARMED FORCES AND CIVILIAN PERSONNEL
RECORDS REVIEW BOARD PERSONNEL.
(a) Executive Director.--
(1) In general.--Not later than 45 days after the initial
meeting of the Review Board, the Review Board shall appoint
an individual to the position of Executive Director.
(2) Qualifications.--The individual appointed as Executive
Director of the Review Board--
(A) shall be a citizen of the United States of integrity
and impartiality;
(B) shall be appointed without regard to political
affiliation; and
(C) shall not have any conflict of interest with the
mission of the Review Board.
(3) Security clearance.--
(A) Limit on appointment.--The Review Board shall not
appoint an individual as Executive Director until after the
date on which the individual qualifies for the necessary
security clearance.
(B) Expedited provision.--The appropriate departments,
agencies, and elements of the executive branch of the Federal
Government shall cooperate to ensure that an application by
an individual nominated to be Executive Director, seeking
security clearances necessary to carry out the duties of the
Executive Director, is expeditiously reviewed and granted or
denied.
(4) Duties.--The Executive Director shall--
(A) serve as principal liaison to Government offices;
(B) be responsible for the administration and coordination
of the review of records by the Review Board;
(C) be responsible for the administration of all official
activities conducted by the Review Board; and
(D) not have the authority to decide or determine whether
any record should be disclosed to the public or postponed for
disclosure.
(5) Removal.--The Executive Director may be removed by a
majority vote of the Review Board.
(b) Staff.--
(1) In general.--The Review Board may, in accordance with
the civil service laws, but without regard to civil service
law and regulation for competitive service as defined in
subchapter I of chapter 33 of title 5, United States Code,
appoint and terminate additional employees as are necessary
to enable the Review Board and the Executive Director to
perform their duties under this subtitle.
(2) Qualifications.--An individual appointed to a position
as an employee of the Review Board--
(A) shall be a citizen of the United States of integrity
and impartiality; and
(B) shall not have had any previous involvement with any
official investigation or inquiry relating to the loss, fate,
or status of missing Armed Forces and civilian personnel.
(3) Security clearance.--
(A) Limit on appointment.--The Review Board shall not
appoint an individual as an employee of the Review Board
until after the date on which the individual qualifies for
the necessary security clearance.
(B) Expedited provision.--The appropriate departments,
agencies, and elements of the executive branch of the Federal
Government shall cooperate to ensure that an application by
an individual who is a candidate for a position with the
Review Board, seeking security clearances necessary to carry
out the duties of the position, is expeditiously reviewed and
granted or denied.
(c) Compensation.--The Review Board shall fix the
compensation of the Executive Director and other employees of
the Review Board without regard to chapter 51 and subchapter
III of chapter 53 of title 5, United States Code, relating to
classification of positions and General Schedule pay rates,
except that the rate of pay for the Executive Director and
other employees may not exceed the rate payable for level V
of the Executive Schedule under section 5316 of title 5,
United States Code.
(d) Advisory Committees.--
(1) In general.--The Review Board may create 1 or more
advisory committees to assist in fulfilling the
responsibilities of the Review Board under this subtitle.
(2) Applicability of faca.--Any advisory committee created
by the Review Board shall be subject to the Federal Advisory
Committee Act (5 U.S.C. App.).
SEC. 1099. REVIEW OF RECORDS BY THE MISSING ARMED FORCES AND
CIVILIAN PERSONNEL RECORDS REVIEW BOARD.
(a) Startup Requirements.--The Review Board shall--
(1) not later than 90 days after the date on which all
members are sworn in, publish an initial schedule for review
of all missing Armed Forces and civilian personnel records,
which the Archivist shall highlight and make available on a
publicly accessible website administered by the National
Archives; and
(2) not later than 180 days after the swearing in of the
Board members, begin reviewing of missing Armed Forces and
civilian personnel records, as necessary, under this
subtitle.
(b) Determination of the Review Board.--
(1) In general.--The Review Board shall direct that all
records that relate, directly or indirectly, to the loss,
fate, or status of missing Armed Forces and civilian
personnel be transmitted to the Archivist and disclosed to
the public in the Collection in the absence of clear and
convincing evidence that the record is not a missing Armed
Forces and civilian personnel record.
(2) Postponement.--In approving postponement of public
disclosure of a missing Armed Forces and civilian personnel
record, or information within a missing Armed Forces and
civilian personnel record, the Review Board shall seek to--
(A) provide for the disclosure of segregable parts,
substitutes, or summaries of the missing Armed Forces and
civilian personnel record; and
(B) determine, in consultation with the originating body
and consistent with the standards for postponement under this
subtitle, which of the following alternative forms of
disclosure shall be made by the originating body:
(i) Any reasonably segregable particular information in a
missing Armed Forces and civilian personnel record.
(ii) A substitute record for that information which is
postponed.
(iii) A summary of a missing Armed Forces and civilian
personnel record.
(3) Reporting.--With respect to a missing Armed Forces and
civilian personnel record, or information within a missing
Armed Forces and civilian personnel record, the public
disclosure of which is postponed under this subtitle, or for
which only substitutions or summaries have been disclosed to
the public, the Review Board shall create and transmit to the
Archivist an unclassified and publicly releasable report
containing--
(A) a description of actions by the Review Board, the
originating body, or any Government office (including a
justification of any such action to postpone disclosure of
any record or part of any record) and of any official
proceedings conducted by the Review Board; and
(B) a statement, based on a review of the proceedings and
in conformity with the decisions reflected therein,
designating a recommended specified time at which, or a
specified occurrence following which, the material may be
appropriately disclosed to the public under this subtitle,
which the Review Board shall disclose to the public with
notice thereof, reasonably calculated to make interested
members of the public aware of the existence of the
statement.
(4) Actions after determination.--
(A) In general.--Not later than 30 days after the date of a
determination by the Review Board that a missing Armed Forces
and civilian personnel record shall be publicly disclosed in
the Collection or postponed for disclosure and held in the
protected Collection, the Review Board shall notify the head
of the originating body of the determination and highlight
and make available the determination on a publicly accessible
website reasonably calculated to make interested members of
the public aware of the existence of the determination.
(B) Oversight notice.--Simultaneous with notice under
subparagraph (A), the Review
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Board shall provide notice of a determination concerning the
public disclosure or postponement of disclosure of a missing
Armed Forces and civilian personnel record, or information
contained within a missing Armed Forces and civilian
personnel record, which shall include a written unclassified
justification for public disclosure or postponement of
disclosure, including an explanation of the application of
any standards in section 1096 to the President, to the
Committee on Homeland Security and Governmental Affairs of
the Senate, and the Committee on Oversight and Reform of the
House of Representatives.
(5) Referral after termination.--A missing Armed Forces and
civilian personnel record that is identified, located, or
otherwise discovered after the date on which the Review Board
terminates shall be transmitted to the Archivist for the
Collection and referred to the Committee on Armed Services of
the Senate and the Committee on Armed Services of the House
of Representatives for review, ongoing oversight and, as
warranted, referral for possible enforcement action relating
to a violation of this subtitle and determination as to
whether declassification of the missing Armed Forces and
civilian personnel is warranted under this subtitle.
(c) Notice to Public.--Every 30 days, beginning on the date
that is 60 days after the date on which the Review Board
first approves the postponement of disclosure of a missing
Armed Forces and civilian personnel record, the Review Board
shall highlight and make accessible on a publicly available
website reasonably calculated to make interested members of
the public aware of the existence of the postponement a
notice that summarizes the postponements approved by the
Review Board, including a description of the subject,
originating body, length or other physical description, and
each ground for postponement that is relied upon.
(d) Reports by the Review Board.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, and every year thereafter until the
Review Board terminates, the Review Board shall submit a
report regarding the activities of the Review Board to--
(A) the Committee on Oversight and Reform of the House of
Representatives;
(B) the Committee on Homeland Security and Governmental
Affairs of the Senate;
(C) the President;
(D) the Archivist; and
(E) the head of any Government office the records of which
have been the subject of Review Board activity.
(2) Contents.--Each report under paragraph (1) shall
include the following information:
(A) A financial report of the expenses for all official
activities and requirements of the Review Board and its
employees.
(B) The progress made on review, transmission to the
Archivist, and public disclosure of missing Armed Forces and
civilian personnel records.
(C) The estimated time and volume of missing Armed Forces
and civilian personnel records involved in the completion of
the duties of the Review Board under this subtitle.
(D) Any special problems, including requests and the level
of cooperation of Government offices, with regard to the
ability of the Review Board to carry out its duties under
this subtitle.
(E) A record of review activities, including a record of
postponement decisions by the Review Board or other related
actions authorized under this subtitle, and a record of the
volume of records reviewed and postponed.
(F) Suggestions and requests to Congress for additional
legislative authority needs.
(G) An appendix containing copies of reports relating to
postponed records submitted to the Archivist under subsection
(b)(3) since the end of the period covered by the most recent
report under paragraph (1).
(3) Termination notice.--Not later than 90 days before the
Review Board expects to complete the work of the Review Board
under this subtitle, the Review Board shall provide written
notice to Congress of the intent of the Review Board to
terminate operations at a specified date.
SEC. 1099A. DISCLOSURE OF OTHER MATERIALS AND ADDITIONAL
STUDY.
(a) Materials Under Seal of Court.--
(1) In general.--The Review Board may request the Attorney
General to petition any court of the United States or of a
foreign country to release any information relevant to the
loss, fate, or status of missing Armed Forces and civilian
personnel that is held under seal of the court.
(2) Grand jury information.--
(A) In general.--The Review Board may request the Attorney
General to petition any court of the United States to release
any information relevant to loss, fate, or status of missing
Armed Forces and civilian personnel that is held under the
injunction of secrecy of a grand jury.
(B) Treatment.--A request for disclosure of missing Armed
Forces and civilian personnel materials under this subtitle
shall be deemed to constitute a showing of particularized
need under rule 6 of the Federal Rules of Criminal Procedure.
(b) Sense of Congress.--It is the sense of Congress that--
(1) the Attorney General should assist the Review Board in
good faith to unseal any records that the Review Board
determines to be relevant and held under seal by a court or
under the injunction of secrecy of a grand jury;
(2) the Secretary of State should--
(A) contact the Governments of the Russian Federation, the
People's Republic of China, and the Democratic People's
Republic of Korea to seek the disclosure of all records in
their respective custody, possession, or control relevant to
the loss, fate, or status of missing Armed Forces and
civilian personnel; and
(B) contact any other foreign government that may hold
information relevant to the loss, fate, or status of missing
Armed Forces and civilian personnel, and seek disclosure of
such information; and
(3) all agencies should cooperate in full with the Review
Board to seek the disclosure of all information relevant to
the loss, fate, or status of missing Armed Forces and
civilian personnel consistent with the public interest.
SEC. 1099B. RULES OF CONSTRUCTION.
(a) Precedence Over Other Law.--When this subtitle requires
transmission of a record to the Archivist or public
disclosure, it shall take precedence over any other law
(except section 6103 of the Internal Revenue Code of 1986),
judicial decision construing such law, or common law doctrine
that would otherwise prohibit such transmission or
disclosure, with the exception of deeds governing access to
or transfer or release of gifts and donations of records to
the United States Government.
(b) Freedom of Information Act.--Nothing in this subtitle
shall be construed to eliminate or limit any right to file
requests with any Executive agency or seek judicial review of
the decisions under section 552 of title 5, United States
Code.
(c) Judicial Review.--Nothing in this subtitle shall be
construed to preclude judicial review under chapter 7 of
title 5, United States Code, of final actions taken or
required to be taken under this subtitle.
(d) Existing Authority.--Nothing in this subtitle revokes
or limits the existing authority of the President, any
Executive agency, the Senate, or the House of
Representatives, or any other entity of the Government to
publicly disclose records in its custody, possession, or
control.
(e) Rules of the Senate and House of Representatives.--To
the extent that any provision of this subtitle establishes a
procedure to be followed in the Senate or the House of
Representatives, such provision is adopted--
(1) as an exercise of the rulemaking power of the Senate
and House of Representatives, respectively, and is deemed to
be part of the rules of each House, respectively, but
applicable only with respect to the procedure to be followed
in that House, and it supersedes other rules only to the
extent that it is inconsistent with such rules; and
(2) with full recognition of the constitutional right of
either House to change the rules (so far as they relate to
the procedure of that House) at any time, in the same manner,
and to the same extent as in the case of any other rule of
that House.
SEC. 1099C. REQUESTS FOR EXTENSIONS.
The head of a Government office required to comply with a
deadline under this subtitle that is based off the
confirmation date of the members of the Missing Armed Forces
and Civilian Personnel Records Review Board may request an
extension from the Board for good cause. If the Board agrees
to the request, the deadline applicable to the Government
office for the purpose of such requirement shall be such
later date as the Board may determine appropriate.
SEC. 1099D. TERMINATION OF EFFECT OF SUBTITLE.
(a) Provisions Pertaining to the Review Board.--The
provisions of this subtitle that pertain to the appointment
and operation of the Review Board shall cease to be effective
when the Review Board and the terms of its members have
terminated under section 1097(o).
(b) Other Provisions.--The remaining provisions of this
subtitle shall continue in effect until such time as the
Archivist certifies to the President and Congress that all
missing Armed Forces and civilian personnel records have been
made available to the public in accordance with this
subtitle.
SEC. 1099E. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are
necessary to carry out this subtitle, to remain available
until expended.
SEC. 1099F. SEVERABILITY.
If any provision of this subtitle, or the application
thereof to any person or circumstance, is held invalid, the
remainder of this subtitle and the application of that
provision to other persons not similarly situated or to other
circumstances shall not be affected by the invalidation.
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