Interagency Working Group (IWG)

Intelligence Authorization Act, 2001

[Page: S11649] ---

Mr. GRASSLEY. Mr. President, I ask unanimous consent that the Senate now proceed to the consideration of H.R. 5630, which is at the desk.

The PRESIDING OFFICER. The clerk will report the bill by title.

The legislative clerk read as follows:

A bill (H.R. 5630) to authorize appropriations for fiscal year 2001 for intelligence and intelligence-related activities of the United States Government, the Community Management Account, and the Central Intelligence Agency Retirement and Disability System, and for other purposes.

There being no objection, the Senate proceeded to consider the bill.


Mr. GRASSLEY. Mr. President, I understand that Senator ALLARD has an amendment at the desk, and I ask for its immediate consideration.

The PRESIDING OFFICER. The clerk will report.

The legislative clerk read as follows:

The Senator from Iowa [Mr. GRASSLEY], for Mr. ALLARD, proposes an amendment numbered 4360.

The amendment is as follows:

(Purpose: To strike section 501, relating to contracting authority for the National Reconnaissance Office)

On page 48, strike lines 4 through 16.

On page 48, line 17, strike "502." and insert "501.".

On page 49, line 7, strike "503." and insert "502.".

Mr. GRASSLEY. Mr. President, I ask unanimous consent that the amendment be agreed to.

The PRESIDING OFFICER. Without objection, it is so ordered.

The amendment (No. 4360) was agreed to.

Mr. SHELBY. Mr. President, I am disappointed, but perhaps not surprised, to be back on the floor with the Intelligence Authorization Act for Fiscal Year 2001.

After 8 years of subordinating national security to political concerns, the Clinton-Gore administration now exits on a similar note. Three days before the election, in the face of hysterical, largely inaccurate, but extremely well-timed media lobbying blitz, the President overruled his national security experts and vetoed this bill over a provision designed to reduce damaging leaks of classified national security information.

Ironically, the White House--with the full knowledge of Chief of Staff John Podesta--had previously signed off on section 304 of the Intelligence bill, the anti "leaks" provision that prompted the veto. Section 304, which has been public since May and which represents the product of extensive consultations with the Justice Department and the Senate Judiciary Committee, would have filled gaps in existing law by giving the Justice Department new authority to prosecute all unauthorized disclosures of classified information.

Section 304 and the rest of the intelligence authorization bill were unanimously approved by the Intelligence Committee on April 27, and adopted by the full Senate without dissent on October 2. The President's Executive Office submitted to the Congress a "Statement of Administration Policy" in support of the leaks provision. The conference report was adopted by the Senate on October 12.

Let me take a minute to explain why the committee decided, after extensive consultations with the Justice Department, to adopt this provision.

While current law bars unauthorized disclosure of certain categories of information, for example, cryptographic or national defense information, many other sensitive intelligence and diplomatic secrets are not protected. And the U.S. Government, in the words of Director of Central Intelligence George Tenet, "leaks like a sieve.Z"

While leakers seldom if ever face consequences for leaks, our intelligence professionals do. These range from the very real risks to the lives and freedom of U.S. intelligence officers and their sources, to the compromise of sensitive and sometimes irreplaceable intelligence collection methods. Human or technical, these sources won't be there to warn of the next terrorist attack, crisis, or war.

If someone who is providing us intelligence on terrorist plans or foreign missile programs asks, "If I give you this information, can you protect it," the honest answer is often "no." So they may rethink, reduce, or even end their cooperation. Leaks also alienate friendly intelligence services and make them think twice before sharing sensitive information, as the National Commission on Terrorism recently concluded.

Some of section 304's opponents downplay the seriousness of leaks compared to traditional espionage. Yet leaks can be even more damaging. Where a spy generally serves one customer, media leaks are available to anyone with 25 cents to buy the Washington Post, or access to an Internet connection.

As important as what this legislation does is what it doesn't do. Media organizations and others have conjured up a parade of dire consequences that would ensue if section 304 had become law. Yet this carefully drafted provision would not have silenced whistle blowers, who would continue to enjoy current statutory protections, including those governing the disclosure of classified information to appropriate congressional oversight committees. Having led the move to enact whistleblower protection for intelligence community employees, I am extremely sensitive to this concern.

It would not have criminalized mistakes: the provision would have applied only in cases where unauthorized disclosures are made both willfully and knowingly. That means that the person both intends and understands the nature of the act. Mistakes could not be prosecuted since they are, by definition, neither willful nor knowing.

It would not have eroded first amendment rights. In particular, section 304 is not an Official Secrets Act, as some critics have alleged. Britain's Official Secrets Act authorizes the prosecution of journalists who publish classified information. Section 304, on the other hand, criminalizes the actions of persons who are charged with protecting classified information, not those who receive or publish it. Even under existing statutes, the Department of Justice rarely seeks to interview or subpoena journalists when investigating leaks. In fact, there has never been a prosecution of a journalist under existing espionage or unauthorized disclosure statutes, despite the fact that some of these current laws criminalize the actions of those who receive classified information without proper authorization.

[Page: S11650]

Critics also cite--correctly--the Government's tendency to overclassify information, especially embarrassing information, the disclosure of which would not damage national security, the standard for classification. But these practices are already prohibited under the current Executive order on classification, E.O. 12958, which not only provides a procedure for government employees to challenge a classification determination they believe to be improper, but encourages them to do so.

The real issue is: who decides what should be classified? With commendable honesty, critic Steven Aftergood of the Federation of American Scientists went beyond ritual denunciation to spell out his real concern: Section 304, as he told the Washington Post, "turns over to the executive branch the right to determine what will be protected."

In fact, designated officials within the executive branch have always exercised that authority. What Mr. Aftergood and the media want is to arrogate that authority to themselves and their sources. While designated classification officials may err, they--not disgruntled mid-level employees--are the ones charged under our laws and procedures with balancing the protection of our nation's secrets with the need for government openness.

Mr. President, I am disappointed that President Clinton chose to veto the Intelligence Authorization Act over this provision, and I am especially disappointed at the manner in which this occurred.

I believe, however, that it is in our national interest that the Intelligence Authorization Act for Fiscal Year 2001 be enacted into law. Therefore, the bill before the Senate is identical to the conference report vetoed by the President, but for the "leaks" provision.

Mrs. FEINSTEIN. Mr. President, last month the Senate and House approved the conference report to the fiscal year 2001 intelligence authorization bill. Title VIII of the conference report is based on legislation I introduced along with Senators WELLSTONE, GRAMS, BOXER, LEVIN, and HATCH that would create an interagency process to declassify records on activities of the Japanese Imperial Government. Specifically, title VIII is based on the Nazi War Crimes Disclosure Act, a law written by my friend and colleague from Ohio, Senator DEWINE, and our House colleague from new York, Representative CAROLYN MALONEY. This law requires the federal government to search through its records and disclose any classified materials it has on Nazi war crimes, the Nazi Holocaust and the looting of assets and property by the Nazis. Leading what has become the largest declassification of U.S. government records in American history is the Nazi War Criminal Records Interagency Working Group, or IWG, which consists of representatives of key government departments and agencies and three public members appointed by the President. The work done by the IWG and a team of historians and experts at the National Archives has been nothing less than extraordinary. However, the law only gives the IWG just until the end of next year to complete this enormous task. After discussing this with the Senator from Ohio, we agreed that the best course of action was to extend the authorization of the existing IWG until the end of 2003, and give it additional authority to oversee the declassification of Japanese Imperial Government records. In that way, the IWG will be able to undertake an effort to search through U.S. Government records and disclose any classified materials it has on the Japanese Imperial Government similar to the declassification effort underway on Nazi war crimes. In addition, we also thought it was important to ensure that the IWG had a funding authorization to carry out its activities, including the preservation of records that are being declassified. I see the Senator from Ohio on the floor, and I ask if he has anything he wishes to add at this point.

Mr. DeWINE. I thank the Senator from California for her comments. She is correct. The Nazi War Criminal Records IWG has done an outstanding job. It only made sense, given the work the IWG already has done, to explicitly expand its current requirements to cover activities of the Japanese Imperial Government. Mr. President, I see the distinguished chairman of the Senate Select Committee on Intelligence on the floor, and would like to ask the chairman if the provisions of title VIII apply only to the work done by the IWG with respect to the declassification of records exclusively relating to the Japanese Imperial Government?

Mr. SHELBY. The Senator from Ohio is correct. The House and Senate intelligence committees agreed to combine the working groups for both the Nazi and Japanese Imperial Government declassifications in order to obtain economies of scale from both a substantive and financial perspective. However, the requirements set forth in the Japanese Imperial Government Disclosure Act in no way impact on the requirements set forth in the Nazi War Crimes Disclosure Act.

Mr. DeWINE. It is my assessment that title VIII does not change any of the provisions in the Nazi War Crimes Disclosure Act that govern the declassification of records required under that Act, most notably but not limited to Nazi war crimes committed in the European theater of war, including Northern Africa. Therefore, title VIII refers only to activities exclusively of the Japanese Imperial Government and does not attempt to change any procedures relating to the declassification of all records under section 3(a)(1) and (2) of the Nazi War Crimes Disclosure Act.

Mr. SHELBY. I agree with the Senator from Ohio.

Mr. DeWINE. I thank the chairman for this clarification. I understand the Senator from California also would like to clarify several points in title VIII, so I yield to her.

Mrs. FEINSTEIN. I thank the Senator from Ohio and also thank the chairman for taking the time to clarify title VIII. Specifically, would the chairman agree that the records covered in this title are U.S. Government records?

Mr. SHELBY. Yes. Title VIII covers any still-classified U.S. Government records that are related to crimes committee by the Japanese Imperial Government during World War II.

Mrs. FEINSTEIN. As I understand it, the Nazi War Crimes Disclosure Act effectively creates a process of review of records, and then a process to determine which of these records are to be declassified under the criteria provided in the act. The act contains exceptions that could be cited to justify a decision not to declassify. However, these exceptions apply only to decisions relating to declassification, and are not to be used as a reason to not review records for relevancy. As the author of the Nazi War Crimes Disclosure Act, would the Senator of Ohio agree with my interpretation?

Mr. DeWINE. The Senator from California is correct.

Mrs. FEINSTEIN. With that said, some people have raised concerns that the removal of the National Security Act of 1947 exemption in title VIII, which was included in the original legislation, could impede the ability of the IWG in its declassification efforts. It is my understanding, however, that the intent of title VIII, like the Nazi War Crimes Disclosure Act, requires all U.S. Government classified records be reviewed for relevancy, including intelligence records. Is that also the understanding of the chairman of the Select Committee on Intelligence?

Mr. SHELBY. Under title VIII, all still-classified records likely to contain such information should be surveyed to determine if they contain relevant information. If records are found to contain information related to actions by the Japanese Imperial Government during the Second World War, those records would be reviewed for declassification by the IWG under the criteria provided in the title. However, in the interests of safeguarding legitimate national security interests, the Director of Central Intelligence still maintains the discretion to protect the disclosure of operational files under section 701 of the National Security Act of 1947. Given the nature and age of the files it is unlikely he will need to exercise this authority. Title VIII requires an agency head who determines that one of the exceptions for disclosure applies to notify the appropriate congressional committees of a determination that disclosure and release of records would be harmful to a specific interest. It is the intent of title VIII that the IWG will be able to undertake an effort to search through U.S. Government records and disclose classified

[Page: S11651]

materials under statutory guidelines regarding the activities of the Japanese Imperial Government during the Second World War.

Mrs. FEINSTEIN. I thank the distinguished chairman for his clarification of the language contained in the conference report.

Mr. GRASSLEY. Mr. President, I ask unanimous consent the bill be read a third time and passed, the motion to reconsider be laid upon the table, and that any statements relating to the bill be printed in the RECORD.

The PRESIDING OFFICER. Without objection, it is so ordered.

The bill (H.R. 5630), as amended, was read the third time and passed.