September 25, 1975
Page 30292
By Mr. MUSKIE (for himself and Mr. JAVITS) :
S. 2420. A bill to provide for the establishment of a new office in the Executive Office of the President and of a joint committee in the Congress in order to supervise policies and procedures with respect to the development and review of national defense and foreign policies of the United States and the protection and disclosure of information relating to such policies, and for other purposes. Referred to the Committee on Government Operations.
GOVERNMENT SECRECY CONTROL ACT OF 1970
Mr. MUSKIE. Mr. President, the practice of government secrecy gives a higher priority to confidentiality than to candor. It encourages deception instead of disclosure. And it feeds the suspicion of many Americans that their Government will not tell them the truth.
Yet, we all realize that a degree of secrecy is essential to protect our defense and to promote the success of our foreign policies in a world where nations hostile to our interests hold both the power and the intent to undermine our cause and that of freedom.
In our democracy there is an inherent conflict between the need for secrecy and the need for a fully informed public. The only answer to that conflict is to find the balance between a society that is open and one that is dangerously exposed.
Certain institutions of our Government have by tradition and neglect been permitted to operate without public or congressional scrutiny. The inevitable result of such isolation in a society which encourages a free and aggressive press is the rush to make public long-hidden transgressions by Government agencies and officials.
This process of public cleansing is important to the restoration of order and proper control to various parts of the Government, but it necessarily results in a temporary loss of effectiveness.
It is better to assure that the operation of Government is continuously subject to proper oversight by the people and their representatives so that openness is ongoing and not merely cyclical.
What has been ongoing, however, is the dispute between the Congress and the President over material which has been stamped secret by the executive branch.
Mr. President, the legislation I intro duce today with the cosponsorship of the distinguished senior Senator from New York (Mr. JAVITS), the Government Secrecy Control Act, is an effort to restore the balance between secrecy and accountability by restoring the balance between the powers of the executive and legislative branches over national security policy and the information essential to its determination.
Hearings on similar legislation which we introduced in the 93d Congress were held in May and June of last year. Since that time, the importance of such a measure to resolve the conflict has become ever more apparent.
I view this bill as part of the broad historical effort raised to the forefront by the last two Congresses to redress the constitutional balance between the branches. It is a companion measure to the war powers legislation enacted over the President's veto and to the executive privilege and impoundment bills the Senate passed in the last Congress.
I also view it as complementing the intent of the Budget Reform Act as another means to strengthen the Congress by organizing to inform itself and act effectively on vital issues.
The legislation I introduce today approaches the problems of secrecy from the perspective of sharing a constitutional power — the power to withhold or disclose sensitive information.
By default and inaction, responsive to the perceived leading role of the President in dealing with cold war tensions, the Congress has permitted that power over information to lodge exclusively in the Executive. The result of our one-way grant of discretion over secrecy policy has, inevitably, been abuses of power, a system of information classification which serves neither the interests of intelligent policy making nor the requirements of an informed citizenry.
Classification stamps on documents no longer serve to protect information from disclosure. On the contrary, a "secret" marking on an official document often makes officials and journalists suspect that the contents are being hidden from the public more to conceal mistaken or questionable actions, than to promote national security.
The administration recognized the widespread disdain for the classification system in 1972 and issued Executive Order 11652 to reform the system. On the whole, the intent of the reforms is good. But their implementation has been haphazard at best.
The government-wide machinery established to police the reforms, the Interagency Classification Review Committee, has not proved as effective as it should. One reason for its inadequacy is simple; it has no bureaucratic power. The full committee meets once a month in the White House, but its real work is carried out from an office in the Archives, where the size of the staff is limited.
If we understand that decisions on requiring or dropping secrecy are essentially matters of individual judgment where precise standards cannot be automatically applied to every case, then we realize that the surest way to regulate the thousands of officials who must make such judgments daily is to subject their decisions to continuous, impartial review. The review procedures in Executive Order 11652 are a step in the right direction, but the step is incomplete. All of the review is carried out inside the executive branch, and most of it is carried out at the lower policymaking levels of the very agencies where the volume of classified information — and of information improperly classified — is greatest.
The Government Secrecy Control Act would strengthen that review process within the executive branch. But, more importantly, it would expand the review power to Congress. By sharing the discretion to impose and maintain secrecy, the legislation would assure that the difficult, delicate, individual judgments about secrecy are checked and rechecked. Only through such thorough review can we establish that elusive, essential balance between secrecy and openness.
The review would begin in the executive branch, where a new office — with the power and staff which the Interagency Committee now lacks — would be established in the White House for the registrar of National Defense and Foreign Policy Information. The registrar would be a Presidential appointee, confirmed by the Senate, with power to oversee and regulate secrecy practices throughout the Federal Government.
He would also have the key function of compiling a monthly index, a register of classified information from every agency. It would be his responsibility to check the entries on that register to see that they actually describe the records being kept secret and their origin and location, and to see that the duration of secrecy imposed on them meets the policy standard of the act.
The bill, additionally, will link the Freedom of Information Act and its intent of broadening public access to official information directly to the reformed classification system. No information relating to national defense or foreign policy could be withheld from the public under the first exemption from disclosure in the Freedom of Information Act, unless the documents or records containing that information had been indexed on the register.
In compiling a government-wide central index, the registrar will act as the first line of defense against classification abuses. Able to know what is being kept secret, his office will also be able to correct improper agency secrecy practices. Without such knowledge, no one can hope to bring the classification system under control. With an effective index in operation, officials will be able to inspect the system, trace its flaws, and make it stronger.
The register compiled in the White House will also be transmitted every month to the new Joint Committee on Government Secrecy, in effect, the second line of defense against unjustified secrecy. The first of the committee's specific tasks will be to review the monthly register as a way of reviewing the performance of the registrar and of the agencies under his supervision.
The committee will have explicit authority to obtain documents or records listed on the register and, if it finds them improperly classified, to direct that they be disclosed or that the date of their declassification be changed. If this legislation would make the registrar a "secrecy czar," it would also make the joint committee a powerful watchdog over his office and authority.
The committee will be authorized to take "necessary or appropriate" action to enforce compliance with its subpoenas or directives on a recalcitrant agency. Specifically, the committee will have the power to go to the U.S. district court to seek judicial enforcement of its will.
The committee's second specific task would be that of developing procedures for congressional handling of secret information. Few of our committees now have precise rules for handling classified records, and none have had their own standards for security clearance of congressional employees. As a result Members of Congress and their staffs are really at the mercy of executive decisions as to who may see or discuss what information. The joint committee would be able to establish the basic ground rules for the entire Congress in this respect and, in consultation with the registrar, would act as arbiter between Members or committees of Congress seeking access to classified information and agencies seeking to withhold it or to dictate the terms of its disclosure.
More broadly, the joint committee would have the role of overall congressional monitor of national security policy. With the information available from the index, the committee will be in a position to steer other committees, Foreign Relations and Armed Services most obviously, into areas of inquiry and oversight they might otherwise miss. But the joint committee's own oversight should extend to assisting the coordination of policy by often competitive executive departments and to assuring a channel of full communication and current consultation between those departments and the Congress.
Finally, the legislation sets a standard for secrecy embodying both the positive finding that information is permitted to be kept secret only when its disclosure "would harm the national defense or foreign policy" and the negative rule that information shall not be concealed to hide "incompetence, inefficiency, wrongdoing, or administrative error" or simply to avoid embarrassing officials or agencies. That standard is not precise and automatic. I believe, as I said earlier, that no one standard can be.
But, by design, the standard differs from existing practice in the executive branch by requiring classifiers to make a determination that disclosure would harm national defense or foreign policy, not the broader, more inclusive, and less precise concept of "national security." The proposed narrowing of the standard reflects my concern that too loose a terminology in the past has permitted many of the abuses of classification authority. The tighter language should serve both to protect secrets which are vital and to encourage the flow of information which must be shared among our policymakers and with the public.
One of the most serious concerns with excessive secrecy is the role it plays in bureaucratic gamesmanship, enabling one official to keep his proposals and actions hidden from others who share his concerns, but not necessarily his views. It is essential that policy be made after the most exhaustive examination of alternatives and the fullest debate. When secrecy is used to shortcircuit dissent, when policy is shaped by only a select few, it becomes doubly difficult to conduct policy or insure support for it even within the Government.
Mr. President, Lord Acton is famous for his aphorism on the corrupting effect of absolute power. He also said, in the same vein:
Everything secret degenerates, even the administration of justice; nothing is safe that does not show it can bear discussion and publicity.
It is the purpose of the Government Secrecy Control Act to share what has been absolute power over secret information and to insure, through that constitutional division of power and responsibility, that we halt the degeneration of public trust that stems from excessive secrecy.
The balance between openness and overexposure in a free society in an unfree world is, I acknowledge, extremely difficult to find and perhaps even harder to maintain under the pressure of events.
But it was the proud boast of Pericles, in his funeral oration for the men of Athens who died in the first year of the Peloponnesian War, that—
We Athenians are able to judge ... all events ... and instead of looking on discussion as a stumbling block in the way of action, we think it an indispensable preliminary to any wise action at all.
Our heritage of free speech is in the Athenian tradition. Like Pericles, we cherish the faith that men can govern themselves, that they can choose between right and wrong policies, that they can bargain openly in the marketplace of ideas and can strike the proper balance between private interest and the public good.
Secrecy upsets that balance. It corrupts the commerce of ideas. It blurs the distinction between right and wrong, and it erodes the foundation of self-government.
It is my hope that with this legislation we can begin to regain control over secrecy in Government, that we can further redress the balance of power between the branches of Government and between the Government and the governed.
Mr. President, I ask unanimous consent that the text of the bill be printed in the RECORD.
There being no objection, the bill was ordered to be printed in the RECORD, as follows:
S. 2420
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SHORT TITLE
SECTION 1. That this Act may be cited as the "Government Secrecy Control Act of 1975."
STATEMENT OF FINDINGS AND PURPOSE
SEC. 2. Congress finds and declares that—
(1) the development and review of the national defense and foreign policies of the United States are constitutional responsibilities which are shared by the legislative and executive branches of the Federal Government;
(2) the proper execution of the shared constitutional responsibility requires that maximum access to information relating to national defense and foreign policies must be afforded to the Congress;
(3) there is a need for the maintenance of procedures under which certain information relating to the national defense and foreign policies of the United States be kept secret; and
(4) the excessive or unnecessary imposition of secrecy limits access to such information and thereby prevents Congress from carrying out its constitutional responsibility in the development and review of such policies, hinders the proper development and execution of such policies within the executive branch, and impedes public understanding of such policies and their implementation.
(b) It is the purpose of this Act to establish in the Congress and in the executive branch a system to assure that national defense and foreign policy information is made available as necessary for the fulfillment of the Congress constitutional responsibilities, to assure that procedures are established and maintained to protect information which in fact requires secrecy, and to promote the maintenance of an informed public.
STATEMENT OF POLICY
SEC. 3. It is the policy of the United States Government to permit information relating to the national defense or foreign policy of the United States to be kept secret only when the disclosure of such information would harm the national defense or foreign policy or when such information has been provided to the Government of the United States by a foreign government or international organization pursuant to an agreement which conforms to the policy of this section and which precludes the release of such information without the consent of that foreign government or international organization. It is also the policy of the United States Government not to permit information to be kept secret in order to impede access by Congress to such information or to conceal incompetence, inefficiency, wrongdoing, or administrative error, to avoid embarrassment to any officer or agency, or to restrain competition or independent initiative.
JOINT COMMITTEE ON GOVERNMENT SECRECY
SEC. 4. (a) (1) There is hereby established a Joint Committee on Government Secrecy (hereinafter referred to as the "Joint Committee") which shall be composed of the Speaker of the House of Representatives, the majority and minority leaders of the Senate and the House of Representatives, four other Members of the Senate appointed by the President of the Senate, and four other Members of the House of Representatives appointed by the Speaker of the House of Representatives.
(2) A vacancy in the Joint Committee shall not affect the power of the remaining members to execute the functions of the Joint Committee, and shall be filled in the same manner as the original selection. The chairman of the Joint Committee shall be selected by the members of the Joint Committee.
(3) The Joint Committee and any subcommittee thereof, is authorized, in its discretion (A) to make expenditures from the contingent fund of the Senate, (B) to employ personnel, (C) to hold hearings, (D) to sit and act at any time or place during the sessions, recesses, and adjourned periods of the Congress, (E) to require, by subpoena or otherwise, the attendance of witnesses and the production of correspondence, books, papers, and documents, (F) to take depositions and other testimony, (G) to procure the temporary services (not to exceed one year) of experts, or consultants or organizations thereof by contract at rates of pay not in excess of the per diem equivalent of the highest rate of basic pay paid under the General Schedule of section 5382 of title 5, United States Code, including payment of such rates for necessary travel time, and (H) with the prior consent of the Government department or agency concerned, to use on a reimbursable basis the services of personnel of any such department or agency.
(4) Subpoenas may be issued by the Joint Committee or by a subcommittee thereof, over the signature of the chairman of the Joint Committee or subcommittee or any member designated by either of them, and may be served by any member designated by any such chairman or member. Any such chairman or member may administer oaths to witnesses.
(5) Service of a Senator as a member or as chairman of the Joint Committee shall not be taken into account for the purpose of paragraph 6 of rule XXV of the Standing Rules of the Senate.
(6) The expenses of the Joint Committee shall be paid from the contingent fund of the Senate on vouchers approved by the chairman of the Joint Committee.
(b) (1) It shall be the principal duty of the Joint Committee to review the practices of Government departments and agencies originating or having custody of information designated to be kept secret pursuant to the policy of this Act and, upon determination that such practices fail to conform to that policy, to direct their revision. In carrying out this duty, the Joint Committee shall receive and review the Register of National Defense and Foreign Policy Information when transmitted under section 6(d), receive reports from the Registrar of National Defense and Foreign Policy Information, and receive notifications from the Registrar under section 6(c) (2) and (3) and section 7(b). In conducting such review, the Joint Committee may direct any agency originating or having custody of a document or other matter with respect to which an entry on the Register is made, to furnish that document or other matter to the Joint Committee for inspection to determine the propriety of the extent of protection accorded the document or other matter.
(2) Having conducted such inspection and reached such a determination, the Joint Committee shall, when appropriate, direct the public disclosure, in whole or in part, of such document or other matter or direct that the date entered on the Register in accordance with section 6(c) (1) (F) be changed.
(3) Upon consideration of reports from the Registrar and notifications from the Registrar in accordance with sections 6(c) (2) or (3) and section 7(b), the Joint Committee may direct the Registrar to modify authorizations given for aggregate entries on the Register or for substituting codes for names of officials originating documents or other matters and may direct the Registrar to remove from the Register any entry or portion of any entry made for documents or other matters originated 10 years or more prior to the effective date of this Act.
(4) (A) Directives, including subpoenas, issued by the Joint Committee under paragraphs (2) and (3) shall issue upon a two-thirds vote of the members of the Joint Committee. In the case of any failure of the Registrar or any agency to respond within 15 days to directives or subpoenas issued under paragraphs (1), (2), or (3), the Joint Committee shall take such other action as may be necessary or appropriate, including bringing an action to enforce its directive or subpoena.
(B) The United States District Court for the District of Columbia shall have original jurisdiction of actions brought pursuant to this paragraph without regard to the sum or value of the matter in controversy. The court shall have power to issue a mandatory injunction or other order as may be appropriate, and to make and enter a decree enforcing, modifying and enforcing as so modified, or setting aside in whole or in part the subpoena or directive issued pursuant to this clause. The Joint Committee, in bringing or prosecuting an action pursuant to this paragraph, may be represented by such attorneys as it may designate. Appeal of the judgment and orders of the court in such actions shall be had in the same manner as actions brought against the United States under section 1346 of title 28, United States Code. The courts shall give precedence over all other civil actions to actions brought under this paragraph.
(c) It shall also be the responsibility of the Joint Committee to—
(1) recommend to Members and to other committees of Congress procedures for protecting or disclosing documents or other matters held by Members or committees and designated secret by authorized officials of the executive branch pursuant to the policy of this Act;
(2) recommend action by other committees or officers of Congress to be taken on requests for public disclosure of or access to documents or other matters originated by them or under their control and designated secret by them or other agencies of Congress; and
(3) recommend to Members and to other committees of Congress procedures for granting or denying employees of Congress access to documents or other matters designated secret pursuant to the policy of this Act and for disciplining any such employees for breaching such procedures.
(d) It shall also be a function of the Joint Committee to—
(1) make available to Members and other committees of Congress and to the public such portions of the contents of the Register and such reports from the Registrar as the Joint Committee decides independently or upon request are necessary to the activity of Members or committees of Congress or appropriate to the maintenance of an informed public; and
(2) recommend to the Congress such legislation relating to the protection or disclosure of information dealing with the national defense or foreign policy as may be necessary or appropriate; and
(3) file reports at least annually, and at such other times as may be appropriate, with the Senate and the House of Representatives, containing its findings and recommendations with respect to the matters under its jurisdiction.
REGISTRAR OF NATIONAL DEFENSE AND FOREIGN POLICY INFORMATION
SEC. 5. (a) There is hereby established in the Executive Office of the President an Office of National Defense and Foreign Policy Information (hereinafter referred to as the "Office"). The Office shall be headed by a Registrar of National Defense and Foreign Policy Information (hereinafter referred to as the "Registrar") who shall be appointed by the President, by and with the advice and consent of the Senate.
(b) It shall be the function of the Registrar—
(1) to compile and transmit to the Joint Committee on Government Secrecy a Register of National Defense and Foreign Policy Information in accordance with the provisions of section 6;
(2) to review entries on the Register to determine whether they comply with the policy stated in section 3, and with the provisions of section 6 of this Act, and to adjust those entries which are not in compliance with that policy or section or with the standards established by statute or Executive order consistent with the policy of this Act for the imposition and duration of secrecy on information relating to the national defense and foreign policy of the United States;
(3) to recommend to the President, after reviewing existing orders and regulations and their administration, procedures authorizing Federal departments and agencies and the officials thereof to designate information relating to the national defense and foreign policy to be kept secret and to withdraw such designations and providing for the monthly submission by such departments, agencies, and officials of entries for the Register;
(4) to report not later than March 31 of each year, to the President and the Congress, on the administration of such regulations and orders within the executive branch, including (A) the numbers and titles of officials within Federal departments and agencies authorized to designate information relating to the national defense and foreign policy to be kept secret and to withdraw such designations, (B) the numbers of documents or other matters designated to be kept secret and withdrawn from secrecy during the preceding twelve months in each Federal department and agency, (C) the number of such documents or other matters designated in each Federal department and agency during that twelve months to be kept secret for a period in excess of three years from the date of origination of the document or other matter, and (D) the number and result of investigations in the preceding twelve months in each Federal department and agency into breaches of such regulations and orders;
(5) to review with the appropriate officials of any Federal department or agency any proposed final administrative action which would deny access by any person to information requested to be made available to that person under section 552 of title 5, United States Code, on the grounds that such information is exempted from disclosure to the public under the terms of subsection (b) (1) of that section and to approve or disapprove such action; and
(6) to review and promulgate regulations to standardize such other practices within the executive branch relating to secrecy of information, including security clearance procedures, routing designations for information, and security measures for automatic data processing systems of secret information, as the Registrar deems necessary and appropriate to the fulfillment of the purposes of this Act.
(c) The Registrar is authorized (1) to appoint such officers and employees as may be necessary to carry out his functions; (2) to employ experts and consultants in accordance with section 3109 of title 5, United States Code, at rates not in excess of the maximum daily rate prescribed for GS18 under section 5332 of such title for each day they are so employed (including travel time) and pay such persons travel expenses and per diem in lieu of subsistence at rates authorized by section 5703 of such title for persons in Government service employed intermittently; and (3) to the fullest extent possible, to utilize the services, facilities, and information, including statistical information, of other Federal agencies in carrying out his functions.
(d) The Interagency Classification Review Committee established by Executive Order 11652, March 8, 1972, is hereby abolished, and the personnel, assets, liabilities, property and records thereof are hereby transferred to the Registrar.
(e) Section 5313 of title 5, United States Code, is amended by adding at the end thereof the following new paragraph:
"(22) Registrar, National Defense and Foreign Policy Information.".
MAINTENANCE OF THE REGISTER OF NATIONAL DEFENSE AND FOREIGN POLICY INFORMATION
SEC. 6. (a) Any document or other matter which is originated after the effective date of this Act may not be kept secret pursuant to the policy of this Act or withheld from the public in accordance with section 552(b) (1) of title 5, United States Code, unless an entry in the Register of National Defense and Foreign Policy Information meeting the requirements of this section is made with respect to such document or other matter.
(b) In carrying out his functions under section 5(b) the Registrar shall follow the procedures established in this section. Any document or other matter in the custody of the United States Government which is designated to be kept secret pursuant to the policy of this Act shall be entered on the Register in accordance with subsection (c) within twenty days after the date on which the document or other matter was originated, except that, in the case of any document or other matter which is originated outside the United States (other than a document orother matter originated by a foreign government), such entry shall be made within twenty days after the date on which that document or other matter was received by an agency in the United States.
(c) (1) Except as provided in paragraphs (2), (3), and (4), each entry required to be made in the Register shall contain the following information:
(A) a concise and complete description of the subject matter, including the title if any, of the document or other matter;
(B) the name of the agency which originated the document or other matter;
(C) the name and title of the official who designated the document or other matter to be kept secret;
(D) the name of each agency to which such document or other matter was disseminated;
(E) the date on which the document or other matter was originated and the date on which it was designated to be kept secret; and
(F) the date on which such designation of the document or other matter can be withdrawn pursuant to the policy of this Act. Each entry shall be indexed alphabetically by the title or subject matter of the document or other matter, and alphabetically by the name of the agency which originated the document or other matter.
(2) At the discretion of the Registrar and upon timely explanatory notification by the Registrar to the Joint Committee, agencies are authorized to make aggregate entries on the Register with respect to categories of documents or other matters which are too voluminous in quantity or too similar in content to require separate indexing.
(3) At the discretion of the Registrar and upon explanatory notification to the Joint Committee, agencies are authorized to substitute for the name and title of the official required by paragraph (1) (C) of this subsection a code and title identifying such official whose activity in gathering, transmitting, or analyzing secret information requires anonymity in the interest of his personal safety.
(4) No document or other matter destined for disposal within sixty days of its origination, such as a working paper or draft report, is required to be entered on the Register.
(d) A Duplicate Register, covering all documents or other matters determined to require protection shall be transmitted to the Joint Committee not later than the fifth day of the month following the month in which such determinations were made.
TRANSITIONAL PROVISIONS
SEC. 7. (a) Upon the expiration of four years following the effective date of this Act, no document or other matter which was originated less than ten years prior to such date may be withheld from the public pursuant to the policy of this Act or to section 552(b) (1) of title 5, United States Code, unless an entry meeting the requirements of section 6(c) has been made with respect to such document or other matter.
(b) After the effective date of this Act, no document or other matter which was originated ten years or more prior to such date may be withheld from the public pursuant to the policy of this Act or to section 552 (b) (1) of title 5, United States Code, unless the Registrar makes an entry meeting the requirements of section 6(c) with respect to such document or other matter and immediately notifies the Joint Committee of such entry.
AUTHORIZATION
SEC. 8. There are authorized to be appropriated such sums as may be necessary to carry out the provisions of this Act.
EFFECTIVE DATE
SEC. 9. This Act shall take effect one hundred and eighty days after the date of its enactment.