[Senate Report 105-165]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 313

105th Congress                                                   Report
 2d Session                      SENATE                         105-165
_______________________________________________________________________


 
                 THE DISCLOSURE TO CONGRESS ACT OF 1998

                                _______
                                

               February 23, 1998.--Ordered to be printed

                                _______


 Mr. Shelby, from the Select Committee on Intelligence, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 1668]

    The Select Committee on Intelligence, having considered 
original bill (S. 1668), which directs the President to inform 
employees within the Intelligence Community that it is not 
prohibited by law, executive order, or regulation or otherwise 
contrary to public policy to disclose certain information, 
including classified information, to an appropriate committee 
of Congress, reports favorably thereon and recommends that the 
bill pass.

                          PURPOSE OF THE BILL

    The Disclosure to Congress Act (S. 1668) will ensure that 
employees within the Intelligence Community are made aware that 
they may, without prior authorization, disclose certain 
information to Congress, including classified information, that 
they reasonably believe is specific and direct evidence of: a 
violation of law, rule or regulation; a false statement to 
Congress on an issue of material fact; or gross mismanagement, 
a gross waste of funds, a flagrant abuse of authority, or a 
substantial and specific danger to public health or safety. The 
Committee is hopeful that the legislation will encourage 
employees within the Intelligence Community to bring such 
information to an appropriate committee of Congress rather than 
unlawfully disclosing such information to the media. It is 
imperative that individuals with sensitive or classified 
information about misconduct within the Executive Branch have a 
``safe harbor'' for disclosure where they know the information 
will be properly safeguarded and thoroughly investigated.

                            COMMITTEE ACTION

    On February 11, 1998, on a vote on the motion to order the 
bill reported favorably with a recommendation that the bill do 
pass, nineteen Members of the Committee voted in favor and no 
Members voted against.

                  BACKGROUND AND NEED FOR LEGISLATION

    It is not generally known that the ``Whistle Blower 
Protection Act'' does not cover employees of the agencies 
within the Intelligence Community. See 5 U.S.C. Sec. Sec. 2301 
et seq. The ``whistle blower'' statute also expressly 
proscribes the disclosure of information that is specifically 
required by Executive Order to be kept secret in the interest 
of national defense or the conduct of foreign affairs. 
Therefore, employees within the Intelligence Community are not 
protected from adverse personnel actions if they choose to 
disclose such information, irrespective of its classification, 
to Congress. In fact, an employee who discloses classified 
information to Congress without prior approval is specifically 
subject to sanctions which may include reprimand, termination 
of security clearance, suspension without pay, or removal. See 
Exec. Order No. 12,958, 60 Fed. Reg. 19825 (1995). Some types 
of unauthorized disclosures are also subject to criminal 
sanctions. See 18 U.S.C. Sec. Sec. 641, 793, 794, 798, 952 
(1996); 50 U.S.C. Sec. 783(b) (1996).
    In accordance with Executive Order No. 12,958, classified 
information must remain under the control of the originating 
agency and it may not be disseminated without proper 
authorization. Consequently, an Executive Branch employee may 
not disclose classified information to Congress without prior 
approval. In fact, employees are advised that the agency will 
provide ``access as is necessary for Congress to perform its 
legislative functions * * *.'' Information Security Oversight 
Office, General Services Administration, Classified Information 
Nondisclosure Agreement (SF-312) Briefing Booklet, at 66. In 
other words, the executive agency will decide what Members of 
Congress may ``need to know'' to perform their constitutional 
oversight functions. The President, in effect, asserts that he 
has exclusive or plenary authority to oversee the regulation of 
national security information.
    In response to the Administration's position, the Select 
Committee on Intelligence of the United States Senate reported 
the Intelligence Authorization Act for Fiscal Year 1998 which 
included a provision that specifically addressed this issue. 
See S. 858, 105th Cong., 1st Sess. Sec. 306 (1997). The Senate 
passed the bill by a vote of ninety-eight to one. Shortly after 
the Senate vote, the Administration issued a Statement of 
Administration Policy stating that section 306 was 
unconstitutional and that if it remained in the bill, in its 
present form, senior advisers would recommend that the 
President veto the bill.
    Section 306 directed the President to inform all Executive 
Branch employees that disclosing classified information to an 
appropriate oversight committee or to their Congressional 
representative is not prohibited by any law, executive order, 
or regulation or otherwise contrary to public policy if the 
employee reasonably believes that the classified information 
evidences a violation of any law, rule, or regulation; a false 
statement to Congress on an issue of materialfact; or gross 
mismanagement, a gross waste of funds, an abuse of authority, or a 
substantial and specific danger to public health or safety. This 
provision was intended to ensure that Congress received information 
necessary to fulfill its constitutional oversight responsibilities. It 
was also intended to protect employees from adverse actions based on 
what was heretofore considered an unauthorized disclosure to Congress.
    The Committee intended disclosure to an appropriate 
oversight committee to mean disclosure to cleared staff or a 
member of the committee with jurisdiction over the agency 
involved in the wrongdoing. Members or committee staff who 
receive such information from an employee were to be presumed 
to have received it in their capacity as members or staff of 
the appropriate oversight committee. The Committee believed 
that this presumption was necessary because Members and staff 
are responsible for ensuring that the information is protected 
in accordance with committee rules and that it is brought to 
the attention of the leadership of the committee. The 
President, by informing Executive Branch employees as directed 
in section 306, would have authorized disclosure to the 
appropriate oversight committee or member thereby recognizing 
that these committees and members have a ``need to know'' the 
information as required by current Executive Branch 
restrictions on disclosure of classified information.
    In conference, members of the House Permanent Select 
Committee on Intelligence (HPSCI) and the Senate Select 
Committee on Intelligence (SSCI) did not agree to include 
section 306 as passed by the Senate. The Senate offered to 
amend section 306, thereby significantly narrowing the scope of 
the provision to cover only employees of agencies within the 
Intelligence Community (the Senate passed version covered all 
executive employees). The Senate amendment further narrowed the 
provision by allowing disclosure only to committees with 
primary jurisdiction over the agency involved (the original 
language also allowed disclosure to a Member of Congress who 
represented the employee).
    The Chairman and Ranking Member of the House Permanent 
Select Committee on Intelligence expressed concern over the 
significant constitutional implications of such language. They 
were also mindful of the Administration's veto threat as 
expressed in the Statement of Administration Policy. The 
Chairman and Vice Chairman of the Senate Select Committee on 
Intelligence, in deference to their House colleague's concerns, 
agreed to amend the provision to express a sense of the 
Congress that Members of Congress have equal standing with 
officials of the Executive Branch to receive classified 
information so that Congress may carry out is oversight 
responsibilities.
    The managers decision not to include section 306 of the 
Senate bill in the conference report, however, was not intended 
by either body to be interpreted as agreement with the 
Administration's position on whether it is constitutional for 
Congress to legislate on this subject matter. The managers 
actions were also not to be interpreted as expressing agreement 
with the opinion of the Justice Department's Office of Legal 
Counsel, which explicitly stated that only the President may 
determine when Executive Branch employees may disclose 
classified information to Members of Congress. The managers 
asserted in their Conference Report that members 
ofcongressional committees have a need to know information, classified 
or otherwise, that directly relates to their responsibility to conduct 
vigorous and thorough oversight of the activities of the executive 
departments and agencies within their committees' jurisdiction. 
Therefore, the President may not assert an unimpeded authority to 
determine otherwise.
    While the managers recognized the Chief Executive's derived 
constitutional authority to protect sensitive national security 
information, they did not agree with the Administration that 
the authority is exclusive. Members of both committees also 
agreed that whatever the scope of the President's authority, it 
may not be asserted against Congress to withhold evidence of 
misconduct or wrongdoing and thereby impede Congress in 
exercising its constitutional legislative and oversight 
authority. Therefore, the managers committed to hold hearings 
on this issue and develop appropriate legislative solutions in 
the second session of the 105th Congress.
    The Senate Select Committee held public hearings on 4 & 11 
February 1998 to examine the constitutional implications of 
legislation such as section 306. The Committee heard from 
constitutional scholars and legal experts on both sides of the 
issue. Mr. Randolph D. Moss, Deputy Assistant Attorney General 
from the Department of Justice Office of Legal Counsel 
testified in support of the Administration's position that 
section 306 and any similar language represents an 
unconstitutional infringement on the President's authority as 
Commander in Chief and Chief Executive. Mr. Moss asserted the 
following:
          (A) The President as Commander in Chief, Chief 
        Executive, and sole organ of the Nation in its external 
        relations has ultimate and unimpeded authority over the 
        collection, retention, and dissemination of 
        intelligence and other national security information.
          (B) Any congressional enactment that may be 
        interpreted to divest the President of his ultimate 
        control over national security information is an 
        unconstitutional usurpation of the exclusive authority 
        of the Executive.
          (C) The Senate's language vests lower-ranking 
        personnel in the Executive Branch with a ``right'' to 
        furnish such information to a Member of Congress 
        without prior official authorization from the President 
        or his delagee. Therefore, section 306 and any similar 
        provision is unconstitutional.
    The Committee also heard Professor Peter Raven-Hansen, Glen 
Earl Weston Research Professor of Law from the George 
Washington University Law School and Dr. Louis Fisher, Senior 
Specialist (Separation of Powers) from the Congressional 
Research Service testify that the President's authority in this 
area is not exclusive. Hence, these experts believed that 
Congress already has authority to regulate the collection, 
retention, and dissemination of national security information. 
Professor Raven-Hansen and Dr. Fisher asserted the following:
          (A) A claim of exclusive authority must be 
        substantiated by an explicit textual grant of such 
        authority by the Constitution.
          (B) There is no express constitutional language 
        regarding the regulation of national security 
        information as it pertains to the President.
          (C) The President's authority to regulate national 
        security information is an implied authority flowing 
        from his responsibilities as Commander in Chief and 
        Chief Executive.
          (D) As the regulation of national security 
        information is implicit in the command authority of the 
        President, it is equally implicit in the broad array of 
        national security and foreign affairs authorities 
        vested in the Congress by the Constitution. In fact, 
        Congress has legislated extensively over a long period 
        of time to require the President to provide information 
        to Congress.
          (E) Congress may legislate in this area because the 
        Executive and Legislative Branches share constitutional 
        authority to regulate national security information.
          (F) The Supreme Court has never decided a case that 
        specifically addressed this issue.
          (G) The provision is constitutional because it does 
        not prevent the President from accomplishing his 
        constitutionally assigned functions and any intrusion 
        upon his authority is justified by an overriding need 
        to promote objectives within the constitutional 
        authority of Congress.
    The Committee found the latter argument to be persuasive 
and determined that the Administration's intransigence on this 
issue compelled the Committee to act.
    Following the public hearing on February 11th, the 
Committee met to markup a modified version of section 306. One 
amendment was offered by a member of the Committee and was 
adopted unanimously. The bill as amended is explained in the 
following section.

                          SECTION EXPLANATION

    The bill has one section divided into subsections (a) 
through (d). Subsection (a)(1) directs the President to take 
appropriate actions to inform the employees of agencies covered 
in subsection (d) and employees of contractors of such agencies 
that the disclosure of information described in paragraph (2) 
to individuals referred to in paragraph (3) is not prohibited 
by law, executive order, or regulation or otherwise contrary to 
public policy. In other words, thePresident is directed to 
inform ``covered employees'' that it will not be considered an 
``unauthorized disclosure'' if they provide certain information to 
Congress, if that information is provided to the appropriate member and 
the information falls within the specified categories.
    Subsection (a)(1) does not, however, define the means by 
which the President must implement this direction. The 
Committee refrained from expressly stating the types of actions 
that the President should take as we have in previous measures. 
See, e.g., Counterintelligence and Security Enhancements Act of 
1994, Pub. L. No. 103-359, Title VIII, Sec. 802(a), 108 Stat. 
3435 (1994). The Committee has intentionally allowed the 
President a great deal of latitude to implement this 
legislation. The Committee does not, however, intend this 
permissive approach to be interpreted as license to frustrate 
its purpose by promulgating procedures that would in any way 
impede an employee's ability or desire to bring this type of 
information to Congress. Any procedures should be clearly 
stated to eliminate any uncertainty for employees who wish to 
disclose such information.
    Paragraph (1)(B) further directs the President to inform 
such employees that the individuals referred to in paragraph 
(3) have a need to know and are authorized to receive such 
information. This language is consistent with the argument 
propounded by the Administration in a brief that it filed in 
the Supreme Court in 1989. See Brief for Appellees, American 
Foreign Service Association v. Garfinkel, 488 U.S. 923 (1988) 
(No. 87-2127). In the Garfinkel brief the Department of Justice 
stated that ``the President has uniformly limited access to 
classified information to persons who have a need to know the 
particular information, such as a congressional committee 
having specific jurisdiction over the subject matter.'' Id at 
16 (emphasis added).
    Paragraph (1)(C) is intended to ensure that members receive 
information only in their capacity as a member of the committee 
concerned. The Committee is adamant that any information 
received by a member of one of the appropriate committees be 
protected in accordance with that committee's rules for 
safeguarding classified material and be reported to the 
committee's leadership. Accordingly, a member is not free to 
accept covered information as a member of a committee 
unrestrained by such rules or to withhold knowledge of the 
information from the committee's leadership. The various 
national security committees enjoy a long history of trust with 
the Executive Branch and that record will be continued.
    Paragraph (2) defines the type of information that an 
employee may bring to Congress. It is intended to cover all 
information in the covered categories, including classified 
information. Paragraphs (2)(A) and (C) are taken nearly 
verbatim from the text of the ``Whistle Blower Protection Act'' 
and are intended to have the same meaning. See 5 U.S.C. 
Sec. 2302(b)(8)(A)(i)-(ii) (1994 & Supp. II 1996). The 
Committee did slightly narrow the language, however, to cover 
only flagrant abuses of authority. The Committee intended to 
address only those abuses that are so objectionable as to 
warrant the attention of Congress.
    Paragraph (2)(B) is not found in the ``whistle blower'' 
statute and was added to ensure that information pertaining to 
a false statement to Congress is brought to our attention. In 
the interestof legislative efficiency, however, the Committee 
is most concerned with those false statements that pertain to an issue 
of material fact. The material facts of an issue are those facts that a 
reasonable person would consider important in reviewing that particular 
issue. Congress depends on the accuracy of the information provided to 
it and when our oversight is based on false information, we must be 
made aware of it even if the President would prefer to withhold it.
    Paragraph (3) refers to the individuals to whom information 
described in paragraph (2) may be disclosed. Although the 
Senate Select Committee on Intelligence is composed, inter 
alia, of members from the Committees on Appropriations, Armed 
Services, and the Judiciary, we recognize that those committees 
share jurisdiction with this Committee and each has as its 
primary responsibility the oversight of some of the 
departments, agencies or elements of the Federal Government to 
which such information relates. As noted earlier, the 
individuals to whom information may be disclosed was narrowed 
significantly from section 306 to further ensure the protection 
of the information.
    Paragraph (4) recognizes the inviolability of the rule of 
secrecy in grand jury proceedings. The Committee does not 
intend this legislation to circumvent the obligation of secrecy 
imposed by Rule 6(e) of the Federal Rules of Criminal Procedure 
and therefore paragraph (1)(A) does not apply to such 
information. The Committee does not believe, however, that 
disclosures to Congress fall under the rubric of other statutes 
that prohibit the disclosure of certain information. The 
Congress is an entity of the federal government and is capable 
of protecting such information in the same manner as an 
executive agency or department. Accordingly, the Committee does 
not view a disclosure to Congress as a disclosure outside of 
the government.
    Subsection (b) directs the President to submit a report to 
Congress on the actions taken under subsection (a). The 
Committee expects to see a report that describes any procedures 
established or guidance given to the various agencies, 
departments, or elements. If the President gives wide 
discretion to agency heads, the Committee would also like the 
report to address how each agency or department has implemented 
this legislation.
    Subsection (c) is intended to protect the integrity of 
other reporting requirements enacted into relevant law.
    Subsection (d) defines the covered agencies. These are the 
agencies specifically exempted from the ``whistle blower'' 
statute. See 5 U.S.C. Sec. 2302(a)(2)(C)(ii) (1994 & Supp. II 
1996).

                           ESTIMATE OF COSTS

    In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate, the Committee attempted to 
estimate the costs which would be incurred in carrying out the 
provisions of this bill in fiscal year 1998 and in each of the 
five years thereafter. The Committee determined that it would 
be impracticable to estimate the exact costs because the method 
by which the President will implement this bill is unknown. 
While some of the provisions of the bill may increase the 
administrative costs associated with promulgating guidance for 
its implementation, the Committee believes that whatever course 
the President chooses these costs will be minimal and can be 
absorbed within existing levels of appropriations.

                    EVALUATION OF REGULATORY IMPACT

    In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee finds no 
substantial regulatory impact will be incurred by implementing 
the provisions of this legislation.