Public Interest Declassification Board (PIDB)

Statement of Harold Reylea, Congressional Research Service (ret.) before the Public Interest Declassification Board

July 22, 2010

Mr. Chairman and members of the Public Interest Declassification Board, thank you for your invitation to participate in this proceeding concerning the Board’s 2007 recommendation for declassification reviews of certain congressional records. Prior to my retirement from federal service last year, I was a long-time senior staff member of the Congressional Research Service (CRS) at the Library of Congress. Among my research responsibilities with CRS were various aspects of government information policy and practice, including the management of security classified information. During my CRS tenure, I had a security clearance at the “Secret” level. My exposure to classified information was largely through committee support work and occurred in committee offices. I was never authorized to classify or declassify information.

My statement reviews the circumstances and conditions regarding the receipt of classified information by congressional committees (and subcommittees), and offers some thoughts relative to realizing the Board’s recommendation that, “Formal procedures should be established for the declassification review of classified committee reports and hearing transcripts created by committees within their respective bodies.” In making this recommendation, the Board further proposed that, “These procedures should require the chief clerks of the affected committees to transfer to NARA [National Archives and Records Administration] copies of the classified reports and hearing transcripts created by the committee as they become 25 years old. NARA, in turn, would ensure that declassification reviews were conducted by the affected agencies.”1 The views I offer today are my own and are not attributable to any other source.

Introduction

Since 1940, security classification policy and procedures have been prescribed by an executive order of the President and related executive branch regulations. From time to time, Congress has recognized the existence and status of classified information in statutory law. The Freedom of Information Act, for example, provides an exemption from that statute’s rule of disclosure for agency records that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such an Executive order.” Provisions of the criminal code, of course, reinforce security classification arrangements with punishments for the unauthorized disclosure of classified information.

Congress does not classify information, although Section 206 of the Atomic Energy Act of 1954 did authorize the now defunct Joint Committee on Atomic Energy to “classify information originating within the committee in accordance with standards used generally by the executive branch for classifying Restricted Data or defense information.”2 The House of Representatives and the Senate, however, do have rules and practices which may be applied to prevent the unauthorized disclosure of security classified information. Indeed, some committees have specific rules regarding the receipt and handling of classified information. Committee staff having access to such information must have appropriate security clearances and, in some cases, may be required to execute a nondisclosure agreement.

The usual way in which congressional committees receive classified information is in executive, or as if they were in executive, or closed session. As a consequence, the information is in a protected status pursuant to the privileges and prerogatives of the House or Senate. To remove information from this protected status requires a positive vote of the committee receiving it. The information must then be declassified by the classifying agency or entity of the executive branch in order that it may be publicly disclosed. To do otherwise could, at a minimum, result in executive branch refusal to provide further to the committee any other classified information or, at a maximum, possible criminal prosecution, depending upon the motive for the unauthorized disclosure of the information in question. While congressional rules exist prescribing procedures for the House and Senate select committees on intelligence to disclose, on their own volition, classified information, the exercise of this authority is legally untested.3

Publishing Historical Congressional Records

The Legislative Reorganization Act of 1946 largely established the congressional committee structure as it currently exists. Since that time, a few House and Senate committees have been consolidated within each house, and a few new committees - most notably, the intelligence panels - have been created. Moreover, since that landmark legislation was enacted, congressional committees have been attentive to creating historical records - hearings, reports, floor debate, and other documentation - regarding serious legislative and investigative endeavors, and making such materials publicly available through publication by the Government Printing Office (GPO).

When, in some instances, information regarding such endeavors was, after the fact, left in a privileged status, congressional committees saw fit to later return to it and provide for its publication in its original documentary form. Both the House Committee on Foreign Affairs and the Senate Committee on Foreign Relations, for example, have published some of their executive session hearings on Cold War era matters in separate, designated historical series. The Senate panel recently released volume 20 in its collection.4 By contrast, when an executive session transcript of testimony by intelligence officials in 1947 on legislation resulting in the National Security Act was discovered in the early 1980s, an effort was made by congressional leaders to have it published. This occurred in 1982. It was an isolated volume with an explanatory forward regarding its background and the circumstances of its publication.5 It appears that this decade was about the last time that congressional committees published such historical records, although transcripts of the 1953-1954 executive sessions of the Senate Permanent Subcommittee on Investigations, chaired by Senator Joseph R. McCarthy, were published, with the assistance of the Senate Historical Office, in five volumes, with an index, in January 2003.

Concerning the Board’s recommendation for declassification reviews of certain congressional records, some practical considerations arise. Perhaps first among these is the universe of records involved. Information has traditionally been classified for reasons of national security. The concept of “national security” has always been a bit vague, if not nebulous, but arguably expansive since 1947 when a statute was enacted in its name. At a minimum, sensitive information pertaining to national defense, foreign policy, intelligence, and atomic energy has long been classified. More recently, other kinds of sensitive information — concerning, for example, financial conditions, law enforcement, and homeland security — have seemingly become subject to such protection. Moreover, there are varieties of sensitive, but unclassified (SBU) information which may be relevant, such as so-called Sensitive Security Information (SSI) pertaining to aspects of transportation security. In brief, the universe of records involved might well be those of a considerable number of congressional committees.

Second is the matter of significance. Because classified information has been entered into a congressional record does not necessarily mean that it merits (in terms of resource allocation and public benefit) a declassification review. Declassification in this context should be regarded in a larger prospect: will a historically valuable contribution result? This is a question for authoritative congressional actors to determine, which raises a third consideration.

Declassification reviews of congressional records would appear to occur in the larger context of making those records available for public examination. There are a variety of ways to realize such public examination. The crucial consideration raised at this juncture is that the decision for public examination involves the privileges and prerogatives of the House and the Senate. Consequently, implementation of the Board’s recommendation must be seen in this context and, to be successful, must have the full support of congressional leaders. Moreover, it will require resources, including not only funding, but also staff time and the attention of congressional principals.

Implementation Options

In making its recommendation for declassification reviews of congressional records, the Board also proposed that a new National Declassification Center at NARA should have responsibility for such reviews. The Center, which had also been recommended in the Board’s 2007 report, was established by E.O. 13526 of January 5, 2010, and, shortly thereafter, began operations.6 For the future, the House and the Senate might establish policies whereby, declassification reviews of records containing security classified information would be conducted with a view to the subsequent publication of those records. The Center might also be utilized to conduct declassification reviews of existing congressional records containing classified information.

In either case, the Center might be assisted by historians and declassification personnel at relevant departments and agencies, such as the Departments of Defense, Energy, and State, and the Central Intelligence Agency. Alternatively, a special review panel might be created for some situations, as was done in the case of the President John F. Kennedy Assassination Records Collection.7

In the aftermath of any such declassification of information in congressional records, the decision to publish those records would rest with the House and the Senate. Established formats exist for the production of committee hearing transcripts and reports, the latter being accounted for in a sequentially number series in each chamber. Compilations of declassified materials might be produced as House or Senate documents, which are also accounted for in sequentially numbered series, or as so-called committee prints or joint committee prints. The Superintendent of Documents at the Government Printing Office has discretionary authority to make such congressional literature available to federal depository libraries and/or for public sale. Electronic files of these materials might be posted on committee websites for public examination and downloading through the Internet.

In conclusion, the following basic strategy might be pursued. With the support of congressional leaders for the Board’s recommendation, legislation might be developed and enacted to statutorily establish the National Declassification Center and vest it with the responsibility for conducting, upon congressional request, declassification reviews of classified information contained in unpublished congressional records. Appropriate rules of the House and the Senate might thereafter be amended to facilitate congressional committee use of this declassification assistance by the Center and, upon congressional decision, subsequent publication or public disclosure of congressional documents containing information which had been so declassified.

Once again, I thank the Board for the invitation to participate today in these proceedings, and I look forward to responding to your questions.

Notes

1. U.S. Public Interest Declassification Board, Improving Declassification: A Report to the President from the Public Interest Declassification Board (Washington, DC: Dec. 2007), p. 35.

2. Last codified at 42 U.S.C. 2256 (1956).

3. Regarding the House Permanent Select Committee on Intelligence, see House Rule X,

Sec. 11(g), and for the Senate Select Committee on Intelligence, see S. Res. 400, 94 Cong., Sec.8.

4. Elisabeth Bumiller, “Senate Records Show Doubts on ‘64 Vietnam War Crisis,” New York Times, July 15, 2010, p. A6.

5. U.S. Congress, House Committee on Expenditures in the Executive Departments, National Security Act of 1947, hearing, 80 Cong., 1 sess., June 27, 1947 (Washington, DC: GPO, 1982), printed for the use of the Committee on Government Operations and the Permanent Select Committee on Intelligence.

6. Federal Register, vol. 75, Jan. 5, 2010, p. 719.

7. 106 Stat. 3443, as amended; 44 U.S.C. 2107 note; U.S. Assassination Records Review Board, Final Report of the Assassination Records Review Board (Washington, DC: Sept. 1998).

Biographical Profile

Dr. Harold C. Relyea, for over three and a half decades, was a Specialist in American National Government with the Congressional Research Service (CRS) of the Library of Congress. A member of the CRS staff since 1971, he held both managerial and research positions during his career. His principal areas of research responsibility included the presidential office and powers, executive branch organization and management, executive-congressional relations, congressional oversight, and various aspects of government information policy and practice. In addition to his CRS duties, Dr. Relyea has authored numerous articles for scholarly and professional publications in the United States and abroad. Currently in private policy analysis practice, he is preparing a book on national emergency powers. His recently published titles include Silencing Science: National Security Controls and Scientific Communication (1994), Federal Information Policies in the 1990s (1996), The Executive Office of the President (1997), United States Government Information: Policies and Sources (2002), and Comparative Perspectives on E-government (2006). He serves on the editorial board of Government Information Quarterly and has held similar positions with several other journals in the past. An undergraduate of Drew University, he received his doctoral degree in government from The American University. His biography appears in Who’s Who in America and Who’s Who in the World. Contact: relyea_harold@yahoo.com.

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