[Congressional Record Volume 172, Number 106 (Wednesday, June 24, 2026)]
[Senate]
[Pages S3233-S3238]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 6026. Mr. CRAPO (for himself and Mrs. Shaheen) submitted an
amendment intended to be proposed by him to the bill S. 4784, to
authorize appropriations for fiscal year 2027 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. 1096. SHORT TITLE.
This subtitle may be cited as the ``Bring Our Heroes Home
Act''.
SEC. 1097. DEFINITIONS.
In this subtitle:
(1) Archivist.--The term ``Archivist'' means the Archivist
of the United States.
(2) Collection.--The term ``Collection'' means the Missing
Armed Forces and Civilian Personnel Records Collection
established under section 1098(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 director.--The term ``Executive Director''
means the Executive Director of the Review Board.
(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.--The term
``missing Armed Forces and civilian personnel''--
(A) means 1 or more missing persons; and
(B) 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 1099B.
SEC. 1098. MISSING ARMED FORCES AND CIVILIAN PERSONNEL
RECORDS COLLECTION AT THE NATIONAL ARCHIVES.
(a) Establishment of Collection.--Not later than 90 days
after a quorum of the Missing Armed Forces and Civilian
Personnel Records Review Board has been established under
section 1099B, 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, including applicable information
privacy safeguards.
(b) Regulations.--Not later than 90 days after the date of
the swearing in of the Review Board members, the Review Board
shall promulgate rules to establish guidelines and processes
for the disclosure of records contained in the Collection,
including applicable information privacy safeguards.
(c) Oversight.--
(1) Senate.--The Committee on Homeland Security and
Governmental Affairs of the Senate shall have continuing
jurisdiction, including legislative oversight jurisdiction,
in the Senate with respect to the Collection.
(2) House of representatives.--The Committee on Oversight
and Government Reform of the House of Representatives shall
have continuing jurisdiction, including legislative oversight
jurisdiction, in the House of Representatives with respect to
the Collection.
SEC. 1099. 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 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.--
(A) In general.--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) Rulemaking.--The Archivist shall promulgate regulations
to define the term ``substantially redacted record'' for
purposes of subparagraph (A).
(b) Review.--
(1) In general.--Except as provided under paragraph (5),
not later than 270 days after a quorum of the Review Board
has been established under section 1099B, each Government
office shall, in accordance with the criteria and acceptable
formats established by the Archivist--
[[Page S3234]]
(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 270 days
after a quorum of the Review Board has been established under
section 1099B, 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 (50 U.S.C. 3161 note; relating to classified
national security information), 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 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 the Defense POW/MIA
Accounting Agency 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 270 days after a quorum of the Review
Board has been established under section 1099B, 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, except for
records described in subsection (a)(5); and
(2) not later than 1 year after a quorum of the Review
Board has been established under section 1099B, 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
1099B(p); and
(ii) at the direction of the Archivist; and
(B) consistent with the recommendations of the Review Board
under section 1099D(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
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 1099A.
(D) Disclosure absent certification by president.--Not
later than 10 years after the date on which a quorum of the
Review Board has been established under section 1099B, 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 the date on which a quorum of the
Review Board has been established under section 1099B; 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 on which a quorum of the Review Board has been
established under section 1099B; 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 the date on which a quorum of the
Review Board has been established under section 1099B.
(e) Records Management.--In carrying out this section, the
Archivist shall comply with any applicable statutory or
regulatory requirement related to records management.
SEC. 1099A. 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--
(A) it pertains to--
(i) military plans, weapons systems, or operations;
(ii) foreign government information;
(iii) intelligence activities (including covert action),
intelligence sources or methods, or cryptology;
(iv) foreign relations or foreign activities of the United
States, including confidential sources;
(v) scientific, technological, or economic matters relating
to the national security;
(vi) United States Government programs for safeguarding
nuclear materials or facilities;
(vii) vulnerabilities or capabilities of systems,
installations, infrastructures, projects, plans, or
protection services relating to the national security; or
(viii) the development, production, or use of weapons of
mass destruction; and
(B) 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;
(2) if the information is protected from disclosure under
section 552(b) of title 5, United States Code (commonly known
as the ``Freedom of Information Act''); or
(3) if it reveals information described in paragraphs (1)
through (9) of section 3.3(b) of Executive Order 13526 (50
U.S.C. 3161 note; relating to classified national security
information).
(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 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
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(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, in accordance with
section 552(b)(7)(D) of title 5, United States Code.
(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, regulations, or executive
orders, including any law, regulation, or executive order
governing the disclosure of classified information.
SEC. 1099B. 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'' to ensure and facilitate the review,
transmission to the Archivist, and public disclosure of
missing Armed Forces and civilian personnel records.
(b) Membership.--
(1) Appointments.--The Review Board shall be composed of 5
members appointed by the President, subject to the advice and
consent of the Senate, of whom--
(A) 1 shall be appointed in consultation with the Archivist
of the United States and shall serve as the Chairperson of
the Review Board;
(B) 1 shall be appointed in consultation with the majority
leader of the Senate;
(C) 1 shall be appointed in consultation with the minority
leader of the Senate;
(D) 1 shall be appointed in consultation with the Speaker
of the House of Representatives; and
(E) 1 shall be appointed in consultation with the minority
leader of the House of Representatives.
(2) Qualifications.--The members of the Review Board
shall--
(A) be appointed without regard to political affiliation;
(B) be citizens of the United States of integrity and
impartiality;
(C) not be employees of an Executive agency on the date of
the appointment;
(D) have high national professional reputation in their
fields and be 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) 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) include at least 1 professional historian; and
(G) include at least 1 attorney.
(3) Consultation with the office of government ethics.--In
considering persons to be appointed to the Review Board, the
President shall consult with the Director of the Office of
Government Ethics to--
(A) determine criteria for possible conflicts of interest
of members of the Review Board, consistent with ethics laws,
statutes, and regulations for executive branch employees; and
(B) ensure that no individual selected for such position of
member of the Review Board possesses a conflict of interest
as so determined.
(4) Consultation.--Appointments to the Review Board shall
be made 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.--
(1) In general.--Each member of the Review Board shall seek
appropriate security clearances necessary to carry out the
duties of the Review Board.
(2) Review.--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 a security clearance under paragraph (1) is
expeditiously reviewed and granted or denied.
(d) Consideration by the Senate.--Nominations for
appointment under subsection (b)(1)(A) shall be referred to
the Committee on Homeland Security and Governmental Affairs
of the Senate for consideration.
(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 Needed for Quorum.--A majority of the
members of the Review Board, including the Chairperson
appointed and confirmed pursuant to subsection (b)(1)(A),
shall constitute a quorum.
(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.
(3) Notice of removal.--If a member of the Review Board is
removed from office, and that removal is by the President,
not later than 10 days after the removal, the President shall
submit to the leadership of Congress, the Committee on
Homeland Security and Governmental Affairs of the Senate and
the Committee on Oversight and Governemnt Reform of the House
of Representatives a report specifying the facts found and
the grounds for the removal.
(h) Compensation of Members.--
(1) Basic pay.--A member of the Review Board shall be
treated as an employee of the executive branch and
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.--
(1) In general.--The Review Board shall have the authority
to act in a manner prescribed under this subtitle, including
the authority to--
(A) direct Government offices to transmit to the Archivist
missing Armed Forces and civilian personnel records as
required under this subtitle;
(B) 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;
(C) obtain access to missing Armed Forces and civilian
personnel records that have been identified by a Government
office;
(D) 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 the functions and
responsibilities of the Review Board under this subtitle;
(E) hold such hearings, sit and act at such times and
places, take such testimony, receive such evidence,
administer such oaths, and subpoena documents as the Review
Board considers advisable to carry out the responsibilities
of the Review Board under this subtitle;
(F) subpoena private persons to compel the production of
documents and other records relevant to the responsibilities
of the Review Board under this subtitle;
(G) 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;
(H) receive information from the public regarding the
identification and public disclosure of missing Armed Forces
and civilian personnel records; and
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(I) 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.
(2) Enforcement of subpoenas.--Any subpoena issued under
the Review Board under this subsection may be enforced by any
appropriate Federal court acting pursuant to a lawful request
of the Review Board.
(k) Presidential Authority Over Review Board
Determination.--
(1) Public disclosure or postponement of disclosure.--After
the Review Board has made a formal determination concerning
the public disclosure or postponement of disclosure of an
missing Armed Forces and civilian personnel record or
information contained in a missing Armed Forces and civilian
personnel record, obtained or developed solely within the
executive branch, the President--
(A) shall have the sole and nondelegable authority to
require the disclosure or postponement of such record or
information under the standards set forth in sections 1099
and 1099A; and
(B) shall provide the Review Board with an unclassified
written certification specifying the President's decision
within 30 days after the Review Board's determination and
notice to the Executive agency as required under this
subtitle, stating the justification for the President's
decision, including the applicable grounds for postponement
under section 1099A.
(2) Periodic review.--Any missing Armed Forces and civilian
personnel record for which public disclosure is postponed by
the President shall be subject to the requirements of
periodic review and declassification of classified
information and public disclosure in the Collection set forth
in section 1099.
(3) Record of presidential postponement.--The Review Board
shall, upon its receipt, publish in the Federal Register a
copy of any unclassified written certification, statement, or
other materials transmitted by or on behalf of the President
with regard to postponement of the public disclosure of
missing Armed Forces and civilian personnel records under
section 1099A.
(l) 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.
(m) Oversight.--
(1) In general.--The Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on
Oversight and Government Reform of the House of
Representatives shall--
(A) have continuing legislative 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) not later than 10 days after submitting a request, be
provided 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).
(3) Security clearances.--The Chair and Ranking Members of
the Committee on Homeland Security and Governmental Affairs
of the Senate and the Committee on Oversight and Government
Reform of the House of Representatives, and designated
Committee staff, shall be granted all security clearances and
accesses held by the Review Board, including to relevant
Presidential and department or agency special access and
compartmented access programs.
(n) Support Services.--The Administrator of General
Services shall provide administrative services for the Review
Board on a reimbursable basis.
(o) Interpretive Regulations.--The Review Board may issue
interpretive regulations if the Review Board finds such
regulation to be necessary and appropriate.
(p) Termination and Winding up.--
(1) In general.--On the date that is 2 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 on which members of
the Review Board are sworn in to the Review Board.
(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. 1099C. 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--
(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) Consultation with the office of government ethics.--In
their consideration of the person to be appointed to the
position of Executive Director, the Review Board shall
consult with the Director of the Office of Government Ethics
to--
(A) determine criteria for possible conflicts of interest
of the Executive Director, consistent with ethics laws,
statutes, and regulations for executive branch employees; and
(B) ensure that no individual selected for such position of
Executive Director possesses a conflict of interest as so
determined.
(4) Security clearance.--
(A) In general.--The individual appointed as Executive
Director shall have the security clearance necessary to carry
out the duties of the position at the time of appointment.
(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.
(5) 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.
(6) 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) Treatment as employees of executive branch.--The
Executive Director and other employees of the Review Board
shall be treated as employees of the executive branch.
(3) 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.
(4) Consultation with the office of government ethics.--In
their consideration of persons to be appointed as staff of
the Review Board, the Review Board shall consult with the
Director of the Office of Government Ethics to--
(A) determine criteria for possible conflicts of interest
of staff of the Review Board, consistent with ethics laws,
statutes, and regulations for executive branch employees; and
(B) ensure that no individual selected for such position of
staff of the Review Board possesses a conflict of interest as
so determined.
(5) Security clearance.--
(A) In general.--An individual appointed as an employee of
the Review Board shall have the security clearance necessary
to carry out the duties of the position at the time of
appointment.
(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 described in subsection (b) 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 chapter 10 of title
5, United States Code.
SEC. 1099D. 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
[[Page S3237]]
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
Review Board members, begin reviewing 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
carry out the following:
(A) Provide for the disclosure of segregable parts,
substitutes, or summaries of the missing Armed Forces and
civilian personnel record.
(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, the Committee on Homeland Security and
Governmental Affairs of the Senate, and the Committee on
Oversight and Government Reform of the House of
Representatives 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, 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 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
1099A to the President, to the Committee on Homeland Security
and Governmental Affairs of the Senate, and the Committee on
Oversight and Government 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 Homeland Security and Governmental
Affairs of the Senate;
(B) the Committee on Oversight and Government Reform of the
House of Representatives;
(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) Copies and briefs.--Coincident with the reporting
requirements in paragraph (2), or more frequently as
warranted by new information, the Review Board shall provide
copies to, and fully brief, at a minimum, the President, the
Archivist, leadership of Congress, the Chair and Ranking
Members of the Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on
Oversight and Government Reform of the House of
Representatives, and the Chairs, Ranking Members, Vice
Chairs, as the case may be, of such other committees as
leadership of Congress determines appropriate on--
(A) recommendations for periodic review, downgrading, and
declassification, as well as the exact time or specified
occurrence following which specific missing Armed Forces and
civilian material may be appropriately disclosed;
(B) the rationale behind each postponement determination
and the recommended means to achieve disclosure of each
postponed item;
(C) any other findings that the Review Board chooses to
offer; and
(D) an addendum containing copies of reports of postponed
records to the Archivist required under subsection (b)(3)
made since the date of the preceding report under this
subsection.
(4) 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. 1099E. 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
[[Page S3238]]
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. 1099F. 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. 1099G. REQUESTS FOR EXTENSIONS.
(a) In General.--The head of a Government office required
to comply with a deadline under this subtitle that is based
on the date of establishment of a quorum of the members of
the Review Board under section 1099B may request an extension
from the Review Board for good cause.
(b) Extended Deadline.--If the Review 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 Review Board may determine appropriate.
SEC. 1099H. TERMINATION OF EFFECT.
(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 1099B(p).
(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. 1099I. 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. 1099J. 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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