[Congressional Record (Bound Edition), Volume 154 (2008), Part 12]
[House]
[Pages 16799-16802]
[From the U.S. Government Publishing Office, www.gpo.gov]




                REDUCING OVER-CLASSIFICATION ACT OF 2008

  Ms. HARMAN. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 4806) to require the Secretary of Homeland Security to 
develop a strategy to prevent the over-classification of homeland 
security and other information and to promote the sharing of 
unclassified homeland security and other information, and for other 
purposes, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 4806

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Reducing Over-Classification 
     Act of 2008''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) A key conclusion in the Final Report of the National 
     Commission on Terrorist Attacks Upon the United States 
     (commonly known as the ``9/11 Commission'') was the need to 
     prevent over-classification by the Federal Government.
       (2) The 9/11 Commission and others have observed that the 
     over-classification of homeland security information 
     interferes with accurate, actionable, and timely homeland 
     security information sharing, increases the cost of 
     information security, and needlessly limits public access to 
     information.
       (3) The over-classification problem, which has worsened 
     since the 9/11 attacks, causes considerable confusion about 
     what information can be shared with whom both internally at 
     the Department of Homeland Security and with its external 
     partners. This problem negatively impacts the dissemination 
     of homeland security information to the Department's State, 
     local, tribal, and territorial homeland security and law 
     enforcement partners, private sector customers, and the 
     public.
       (4) Excessive government secrecy stands in the way of a 
     safer and more secure homeland. This trend is antithetical to 
     the creation and operation of the information sharing 
     environment established under section 1016 of the 
     Intelligence Reform and Terrorism Prevention Act of 2004 (6 
     U.S.C. 485), and must be halted and reversed.
       (5) To do so, the Department should start with the 
     understanding that all departmental information that is not 
     properly classified, or marked as controlled unclassified 
     information and otherwise exempt from disclosure, should be 
     made available to members of the public pursuant to section 
     552 of title 5, United States Code (commonly referred to as 
     the ``Freedom of Information Act'').
       (6) The Department should also develop and administer 
     policies, procedures, and programs that promote compliance 
     with applicable laws, executive orders, and other authorities 
     pertaining to the proper use of classification markings and 
     the United States National Archives and Records 
     Administration policies implementing them.

     SEC. 3. OVER-CLASSIFICATION PREVENTION WITHIN THE DEPARTMENT 
                   OF HOMELAND SECURITY.

       Subtitle A of title II of the Homeland Security Act of 2002 
     (6 U.S.C. 121 et seq.) is amended by adding at the end the 
     following new section:

     ``SEC. 210F. OVER-CLASSIFICATION PREVENTION PROGRAM.

       ``(a) In General.--The Secretary shall develop and 
     administer policies, procedures, and programs within the 
     Department to prevent the over-classification of homeland 
     security information, terrorism information, weapons of mass 
     destruction information, and other information within the 
     scope of the information sharing environment established 
     under section 1016 of the Intelligence Reform and Terrorism 
     Prevention Act of 2004 (6 U.S.C. 485) that must be 
     disseminated to prevent and to collectively respond to acts 
     of terrorism. The Secretary shall coordinate with the 
     Archivist of the United States and consult with 
     representatives of State, local, tribal, and territorial 
     government and law enforcement, organizations with expertise 
     in civil rights, civil liberties, and government oversight, 
     and the private sector, as appropriate, to develop such 
     policies, procedures, and programs.
       ``(b) Requirements.--Not later than one year after the date 
     of the enactment of the Reducing Over-Classification Act of 
     2008, the Secretary, in administering the policies, 
     procedures, and programs required under subsection (a), 
     shall--
       ``(1) create, in consultation with the Archivist of the 
     United States, standard classified and unclassified formats 
     for finished intelligence products created by the Department, 
     consistent with any government-wide standards, practices or 
     procedures for similar products;
       ``(2) require that all finished intelligence products 
     created by the Department be simultaneously prepared in the 
     standard unclassified format, provided that such an 
     unclassified product would reasonably be expected to be of 
     any benefit to a State, local, tribal or territorial 
     government, law enforcement agency or other emergency 
     response provider, or the private sector, based on input 
     provided by the Interagency Threat Assessment and 
     Coordination Group Detail established under section 210D;
       ``(3) ensure that such policies, procedures, and programs 
     protect the national security as well as the information 
     privacy rights and legal rights of United States persons 
     pursuant to all applicable law and policy, including the 
     privacy guidelines for the information sharing environment 
     established pursuant to section 1016 of the Intelligence 
     Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485), 
     as appropriate;
       ``(4) establish an ongoing auditing mechanism administered 
     by the Inspector General of the Department or other 
     appropriate senior Department official that randomly selects, 
     on a periodic basis, classified information from each 
     component of the Department that generates finished 
     intelligence products to--
       ``(A) assess whether applicable classification policies, 
     procedures, rules, and regulations have been followed;
       ``(B) describe any problems with the administration of the 
     applicable classification policies, procedures, rules, and 
     regulations, including specific non-compliance issues;
       ``(C) recommend improvements in awareness and training to 
     address any problems identified in subparagraph (B); and
       ``(D) report at least annually to the Committee on Homeland 
     Security of the House of Representatives, the Committee on 
     Homeland Security and Governmental Affairs of the Senate, and 
     the public, in an appropriate format, on the findings of the 
     Inspector General's audits under this section;
       ``(5) establish a process whereby employees may challenge 
     original classification decisions made by Department 
     employees or contractors and be rewarded with specific 
     incentives for successful challenges resulting in the removal 
     of classification markings or the downgrading of them;
       ``(6) inform employees and contractors that failure to 
     comply with the policies, procedures, and programs 
     established under this section could subject them to a series 
     of penalties; and
       ``(7) institute a series of penalties for employees and 
     contractors who repeatedly fail to comply with the policies, 
     procedures, and programs established under this section after 
     having received both notice of their noncompliance and 
     appropriate training or re-training to address such 
     noncompliance.
       ``(c) Finished Intelligence Product Defined.--The term 
     `finished intelligence product' means a document in which an 
     intelligence analyst has evaluated, interpreted, integrated, 
     or placed into context raw intelligence or information.''.

     SEC. 4. ENFORCEMENT OF OVER-CLASSIFICATION PREVENTION WITHIN 
                   THE DEPARTMENT OF HOMELAND SECURITY.

       Subtitle A of title II of the Homeland Security Act of 2002 
     (6 U.S.C. 121 et seq.) is further amended by adding at the 
     end the following new section:

     ``SEC. 210G. ENFORCEMENT OF OVER-CLASSIFICATION PREVENTION 
                   PROGRAMS.

       ``(a) Personal Identifiers.--The Secretary shall--
       ``(1) assess the technologies available or in use at the 
     Department by which an electronic personal identification 
     number or other electronic identifying marker can be assigned 
     to each Department employee and contractor with original 
     classification authority in order to--
       ``(A) track which documents have been classified by a 
     particular employee or contractor;
       ``(B) determine the circumstances when such documents have 
     been shared;
       ``(C) identify and address over-classification problems, 
     including the misapplication of classification markings to 
     documents that do not merit such markings; and
       ``(D) assess the information sharing impact of any such 
     problems or misuse;
       ``(2) develop an implementation plan for a Department 
     standard for such technology with appropriate benchmarks, a 
     timetable for its completion, and cost estimate for the 
     creation and implementation of a system of electronic 
     personal identification numbers

[[Page 16800]]

     or other electronic identifying markers for all relevant 
     Department employees and contractors; and
       ``(3) upon completion of the implementation plan described 
     in paragraph (2), or not later than 180 days after the date 
     of the enactment of the Reducing Over-Classification Act of 
     2008, whichever is earlier, the Secretary shall provide a 
     copy of the plan to the Committee on Homeland Security of the 
     House of Representatives and the Committee on Homeland 
     Security and Governmental Affairs of the Senate.
       ``(b) Training.--The Secretary, in coordination with the 
     Archivist of the United States, shall--
       ``(1) require annual training for each Department employee 
     and contractor with classification authority or those 
     responsible for analysis, dissemination, preparation, 
     production, receiving, publishing, or otherwise communicating 
     written classified information, including training to--
       ``(A) educate each employee and contractor about--
       ``(i) the Department's requirement that all classified 
     finished intelligence products that they create be 
     simultaneously prepared in unclassified form in a standard 
     format prescribed by the Department, provided that the 
     unclassified product would reasonably be expected to be of 
     any benefit to a State, local, tribal, or territorial 
     government, law enforcement agency, or other emergency 
     response provider, or the private sector, based on input 
     provided by the Interagency Threat Assessment and 
     Coordination Group Detail established under section 210D;
       ``(ii) the proper use of classification markings, including 
     portion markings; and
       ``(iii) the consequences of over-classification and other 
     improper uses of classification markings, including the 
     misapplication of classification markings to documents that 
     do not merit such markings, and of failing to comply with the 
     Department's policies and procedures established under or 
     pursuant to this section, including the negative consequences 
     for the individual's personnel evaluation, homeland security, 
     information sharing, and the overall success of the 
     Department's missions;
       ``(B) serve as a prerequisite, once completed successfully, 
     as evidenced by an appropriate certificate, for--
       ``(i) obtaining classification authority; and
       ``(ii) renewing such authority annually; and
       ``(C) count as a positive factor, once completed 
     successfully, in the Department's employment, evaluation, and 
     promotion decisions; and
       ``(2) ensure that such program is conducted efficiently, in 
     conjunction with any other security, intelligence, or other 
     training programs required by the Department to reduce the 
     costs and administrative burdens associated with the 
     additional training required by this section.
       ``(c) Detailee Program.--The Secretary shall--
       ``(1) implement a Departmental detailee program to detail 
     Departmental personnel to the National Archives and Records 
     Administration for one year, for the purpose of--
       ``(A) training and educational benefit for the Department 
     personnel assigned so that they may better understand the 
     policies, procedures and laws governing original 
     classification authorities;
       ``(B) bolstering the ability of the National Archives and 
     Records Administration to conduct its oversight authorities 
     over the Department and other Departments and agencies; and
       ``(C) ensuring that the policies and procedures established 
     by the Secretary remain consistent with those established by 
     the Archivist of the United States;
       ``(2) ensure that the program established under paragraph 
     (1) includes at least one individual for each Department 
     office with delegated original classification authority; and
       ``(3) in coordination with the Archivist of the United 
     States, report to Congress not later than 90 days after the 
     conclusion of the first year of the program established under 
     paragraph (1), on--
       ``(A) the advisability of expanding the program on a 
     government-wide basis, whereby other departments and agencies 
     would send detailees to the National Archives and Records 
     Administration; and
       ``(B) the administrative and monetary costs of full 
     compliance with this section.
       ``(d) Sunset of Detailee Program.--Except as otherwise 
     provided by law, subsection (c) shall cease to have effect on 
     December 31, 2012.
       ``(e) Finished Intelligence Product Defined.--The term 
     `finished intelligence product' has the meaning given the 
     term in section 210F(c).''.

     SEC. 5. TECHNICAL AMENDMENT.

       The table of contents in section 1(b) of the Homeland 
     Security Act of 2002 (6 U.S.C. 101(b)) is amended by adding 
     after the item relating to section 210E the following new 
     items:

``Sec. 210F. Over-classification prevention program.
``Sec. 210G. Enforcement of over-classification prevention programs.''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from 
California (Ms. Harman) and the gentleman from Florida (Mr. Bilirakis) 
each will control 20 minutes.
  The Chair recognizes the gentlewoman from California.


                             General Leave

  Ms. HARMAN. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days to revise and extend their remarks and include 
extraneous material on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentlewoman from California?
  There was no objection.
  Ms. HARMAN. Mr. Speaker, I yield myself such time as I may consume, 
and I would like to include in the Record an exchange of letters 
between the distinguished chairmen of the Committees on Homeland 
Security and Oversight and Government Reform.

         House of Representatives, Committee on Oversight and 
           Government Reform,
                                    Washington, DC, July 24, 2008.
     Hon. Bennie G. Thompson,
     Chairman, Committee on Homeland Security, Ford House Office 
         Building, Washington, DC.
       Dear Chairman Thompson: I am writing about H.R. 4806, the 
     Reducing Over-Classification Act of 2008, which the Homeland 
     Security Committee ordered reported to the House on June 26, 
     2008.
       I appreciate your effort to consult with the Committee on 
     Oversight and Government Reform regarding H.R. 4806. In 
     particular, I appreciate your willingness to work with me to 
     move a governmentwide over-classification bill, H.R. 6575, to 
     the House floor so that H.R. 4806 and H.R. 6575 can be 
     considered during the same week.
       In the interest of expediting consideration of H.R. 4806 
     and in recognition of your efforts to address my concerns, 
     the Oversight Committee will not request a sequential 
     referral of this bill. I would, however, request your support 
     for the appointment of conferees from the Oversight Committee 
     should H.R. 4806 or a similar Senate bill be considered in 
     conference with the Senate.
       Notwithstanding the Oversight Committee's agreement to 
     forgo a sequential referral, I believe it is important to 
     reiterate my general concern about H.R. 4806 as it applies to 
     the Department of Homeland Security.
       H.R. 4806 creates procedures for the Department to follow 
     in order to reduce the over-classification of information. 
     Several congressional investigations and the 9/11 Commission 
     have emphasized, however, that over-classification is a 
     governmentwide problem that requires a governmentwide 
     solution. Accordingly, I favor an approach that requires all 
     agencies to follow the same classification protocols and 
     encourages the sharing of information between agencies and 
     with the public to the maximum extent possible.
       Again, thank you for your efforts to address my concerns 
     with H.R. 4806. I look forward to working with you to reduce 
     the significant problem of over-classification throughout the 
     federal government.
       This letter should not be construed as a waiver of the 
     Oversight Committee's legislative jurisdiction over subjects 
     addressed in H.R. 4806 that fall within the jurisdiction of 
     the Oversight Committee.
       Please include our exchange of letters on this matter in 
     the Homeland Security Committee Report on H.R. 4806 and in 
     the Congressional Record during consideration of this 
     legislation on the House floor.
           Sincerely,
                                                     Henry Waxman,
     Chairman.
                                  ____

         House of Representatives, Committee on Homeland Security,
                                    Washington, DC, July 24, 2008.
     Hon. Henry A. Waxman,
     Chairman, Committee on Oversight and Government Reform, House 
         of Representatives, Rayburn House Office Building, 
         Washington, DC.
       Dear Chairman Waxman: Thank you for your letter regarding 
     H.R. 4806, the ``Reducing Over-Classification Act of 2007,'' 
     introduced by Congresswoman Jane Harman on December 18, 2007.
       I appreciate your willingness to work cooperatively on this 
     legislation. I acknowledge that H.R. 4806 contains provisions 
     that fall under the jurisdictional interests of the Committee 
     on Oversight and Government Reform. I appreciate your 
     agreement to not seek a sequential referral of this 
     legislation and I acknowledge that your decision to forgo a 
     sequential referral does not waive, alter, or otherwise 
     affect the jurisdiction of the Committee on Oversight and 
     Government Reform.
       Further, I recognize that your Committee reserves the right 
     to seek appointment of conferees on the bill for the portions 
     of the bill that are within your jurisdiction, and I agree to 
     support such a request.
       I will ensure that this exchange of letters is included in 
     the Committee's report on H.R. 4806 and in the Congressional 
     Record during floor consideration of H.R. 4806. I look

[[Page 16801]]

     forward to working with you on this legislation and other 
     matters of great importance to this nation.
           Sincerely,
                                               Bennie G. Thompson,
                                                         Chairman.

  Mr. Speaker, I am pleased to manage the time for four outstanding 
bipartisan bills that are the product of work by the Homeland Security 
Committee's Intelligence Subcommittee, which I chair. I am also pleased 
to have witnessed the debate on four bills just previously which are 
the product of the Homeland Security Committee and which I believe 
merit strong support by the full House. They are excellent bills. They 
are bipartisan. The members of the committee and the staff are to be 
commended for putting forward good policy, even in these toxic times. 
The bills before us now, Mr. Speaker, tackle the challenge of 
information sharing in novel ways, and they too enjoy wide support.
  During my 8 years as a member of the House Permanent Select Committee 
on Intelligence, four years as ranking member, I became incredibly 
frustrated with the rampant over-classification and selective 
declassification of intelligence. I believe, Mr. Speaker, that my 
colleagues on both sides of the aisle in that committee felt the same 
way. This administration has elevated the practice of over-
classification and selective declassification to an art form and today 
this problem has spread throughout the government, including recently 
established Department of Homeland Security.
  Information and materials should, in my view, be classified for one 
primary reason: to protect sources and methods. It is no exaggeration 
that people die and our ability to monitor certain targets can be 
compromised if sources and methods are revealed; but, Mr. Speaker, 
classifying information for the wrong reasons, that would be to protect 
turf or to avoid embarrassment, is wrong. In fact, this practice can do 
great harm if it bars local law enforcement, America's first 
preventers, from accessing the information they need to prevent or 
disrupt a potential terrorist attack.
  Mr. Speaker, the next attack in the United States will not be stopped 
because a bureaucrat in Washington, DC found out about it in advance. 
It will be the cop on the beat who is familiar with the rhythms and 
nuances of his or her own neighborhood who will foil that attack. H.R. 
4806, the Reducing Over-Classification Act of 2008, is an attempt to 
stop turf protection and embarrassment protection as well as to 
establish a gold standard for DHS when it comes to classification 
practices.
  As I mentioned, the bill was marked up and approved on a unanimous 
basis by both our subcommittee and the full committee in June. The bill 
will require that all classified intelligence products created at DHS 
be simultaneously created in a standard unclassified format, and this 
is unprecedented, if such a product would help both police and 
sheriff's officers keep us safe. Furthermore, the bill requires portion 
marking, the identification of paragraphs in a document that are 
classified, permitting the remainder of the document to remain 
unclassified, so that information reaches the first preventers who need 
it.
  The bill will promote accountability by requiring the Secretary of 
DHS to create an auditing mechanism for the Inspector General of DHS to 
randomly sample classified intelligence products and identify problems 
that exist in those samples. Here again, this is a way to get at over-
classification.
  Finally, the legislation requires the Secretary to establish 
penalties for staff who repeatedly fail to comply with applicable 
classification policies, despite notice of their noncompliance and an 
opportunity to undergo retraining.
  Mr. Speaker, technology is another part of the solution to over-
classification, and so our legislation directs the Secretary to develop 
a plan to track electronically how and where information classified by 
DHS is disseminated so that misuse can be prevented.
  Finally, it requires an extensive annual training on the proper use 
of the classification regime. This training will serve as a 
prerequisite to obtaining classification authority and to renewing it 
each year. In other words, this means that not everyone can classify 
material. You have to be properly trained, and if you abuse your 
position, you may not get to continue to be in that role.
  These changes, in addition to helping local law enforcement push 
important information out to the public. A major key to homeland 
security is personal preparedness. The public has a right to know non-
classified information, and this bill promotes that right. It enjoys 
support by privacy and civil liberty groups. I want you to know, Mr. 
Speaker, I am working with our colleague, Mr. Waxman, to see whether I 
can help him craft legislation to apply these principles government-
wide.
  Mr. Speaker, on behalf of first preventers and first responders 
everywhere, I urge passage of this essential legislation.
  Mr. Speaker, I reserve the balance of my time.

                              {time}  1315

  Mr. BILIRAKIS. Mr. Speaker, I yield myself such time as I may 
consume.
  I rise today in support of H.R. 4806, the Reducing Over-
Classification Act sponsored by my Homeland Security colleague, 
Representative Jane Harman, the distinguished subcommittee Chair on 
Intelligence.
  H.R. 4806 requires the Secretary of Homeland Security to develop and 
administer policies, procedures, and programs to prevent the over-
classification of homeland security information. This bill requires the 
Department of Homeland Security to continue its current practice of 
producing unclassified versions of the majority of its classified 
products.
  For example, just last month when the Department produced its 
classified periodic review of border security issues facing the United 
States, it produced an unclassified version as well. The bill specified 
that law enforcement agencies, emergency first responders, and private 
sector customers should benefit from these products, thus reinforcing 
the Department's commitment to State and local entities. Hopefully, 
this will encourage the widest possible dissemination of these 
unclassified products to better inform our frontline agencies.
  Mr. Speaker, H.R. 4806 will further strengthen ongoing efforts to 
prevent the over-classification of homeland security information, and I 
look forward to its passage.
  I reserve the balance of my time
  Ms. HARMAN. Mr. Speaker, I reserve the balance of my time.
  Mr. BILIRAKIS. Mr. Speaker, I would like to reiterate that we need 
the appropriations and the authorization Homeland Security bills on the 
floor this year.
  I yield back the balance of my time.
  Ms. HARMAN. Mr. Speaker, I yield myself such time as I may consume.
  I want to thank Mr. Bilirakis for his generous comments and for his 
strong support of this legislation. I think this is landmark 
legislation. I think our committee will get enormous attention for 
finally trying to attack this insidious problem of overclassification, 
and I very much appreciate his personal support.
  I also want to tell him that I have watched him raise this issue 
about authorization and appropriation, the need for both actions, by 
this House. I agree with him. I think we need an authorization of this 
bill this year. And it is my understanding that all of the individual 
bills we are debating this afternoon will be included in that 
authorization bill. So I thank him for pointing out the need for us to 
act.
  In conclusion, Mr. Speaker, of the bills that I am managing on the 
floor this afternoon, this is the one that I feel most strongly about. 
This is the one that will make the biggest difference. If we can get 
classification right at the Department of Homeland Security, a new 
department, we can then get it right in the rest of the government.
  As I mentioned earlier, I am working with Mr. Waxman and others on 
his committee to see whether we can craft a bill that manages properly 
all the equities involved in taking this approach governmentwide, but I 
hope we can

[[Page 16802]]

work that out. I think this bill sets the right precedent. I urge its 
passage by the full House.
  I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentlewoman from California (Ms. Harman) that the House suspend the 
rules and pass the bill, H.R. 4806, as amended.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. BILIRAKIS. Mr. Speaker, I object to the vote on the ground that a 
quorum is not present and make the point of order that a quorum is not 
present.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the 
Chair's prior announcement, further proceedings on this motion will be 
postponed.
  The point of no quorum is considered withdrawn.

                          ____________________