REPRESENTATIVE HENRY HYDE'S STATEMENT ON CHANGES IN RULE 48 (House of Representatives - November 09, 1989)

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The SPEAKER pro tempore. Under a previous order of the House, the gentleman from Illinois [Mr. Michel] is recognized for 5 minutes.

Statement of Hon. Henry J. Hyde

Mr. Chairman and distinguished members of the Committee, thank you for this opportunity to suggest some logical and useful changes in House Rule XLVIII (House Rule 48). At the outset, I believe the Committee deserves some further background to this proposed amendment in H. Res. 268 for special access by the Speaker to Intelligence Committee meetings and classified information and matters related to the amendment. As you know, House Rule 48 requires the Intelligence Committee to prescribe rules for access to its proceedings and classified information by Members of the House who are not members of that Committee. Rule 48 also requires that when the Committee does give such access to non-committee members, it must keep written records of the particular information to which the Member involved was given access. The Intelligence Committee has adopted rules governing access by non-committee members, implementing the requirement of House Rule 48. Among other provisions, the Committee rules require a roll call vote by the Committee to authorize the release of classified information to non-Committee members.

The requirements of House Rule 48 are clear, and they contain no exemption for the Speaker from the rules for access by non-members of the Intelligence Committee. There is nothing in the committee report on the resolution which created Rule 48 or the floor debate when it was adopted to give any indication that such an exemption was somehow meant to be implied. In fact, the comments by then Speaker O'Neill during the floor debate emphasized the uniform application of those rules. Moreover, Rule 48 specifically addresses the issue of leadership's access to the Committee's proceedings and classified information. The rule makes two designated leadership officials ex-officio members of the Committee. The Speaker is not one of those designated in the rule. The two are the Majority Leader and the Minority Leader. Of course, the Speaker is not one of the regular appointed members of the Committee either.

Unfortunately, it now appears that occasionally in the past classified information has been given to the various Speakers without authorization by roll call vote or records being kept identifying the information provided, as required by the House and Committee Rules. Of course, because those rules were not adhered to, few members of the Committee were aware of some of these instances, and perhaps no one knows how many times this has occurred. Certainly, until the issue of a possible violation of Rule 48 was raised regarding certain public statements by the previous Speaker, about an alleged U.S. covert action, many of us on the Committee had no inkling that any Speaker might have been given classified information without the required procedures being followed.

Now, frankly I believe we all agree that the current rules, as they apply to the Speaker's access, are something of an anomaly. It would have been more logical for Rule 48 to have made the Speaker an ex-officio member rather than the Majority Leader.

In fact, I hope this particular rules change can be made as soon as possible. Many of us who serve on the Intelligence Committee are quite uncomfortable with the present `interim' arrangement under which the Speaker has second-hand access to the Committee's procedures and classified information through a member of the Speaker's personal staff who has blanket access to all Committee proceedings and information. I am concerned that such an interim blanket access agreement is not consistent with existing rules, and therefore these rules changes should have been adopted first. This sort of arrangement is unprecedented. I have to say quite candidly that the Republican members of HPSCI were fearful that this unusual action might set a very unfortunate precedent. We worry that ultimately it will lead to requests for access by other designated staffers supporting members of top House leadership or even the leadership of committees with crossover membership on HPSCI.

Before going any further, let me add that this amendment for easing of the Speaker's access is just the fourth in a line of measures taken or proposed, since the beginning of this Congress, to modify the structure or operation of HPSCI. First, the number of regular members of HPSCI was increased by two, from 17 to 19. Republican Members acquiesced because we were given to understand that another Democratic slot was needed to meet leadership commitments for assigning Democratic Members to HPSCI. On the last increase before that one, in a desire to keep the Committee size small, Republicans declined to add a slot. This time we had to accept one more Republican slot because the ratio was getting far too lopsided. Secondly, on July 27th of this year, the House passed H. Res. 213, extending Mr. Beilenson's term as Chairman of HPSCI beyond what would have otherwise been permitted by Rule 48. I willingly supported that measure because Mr. Beilenson's service as Chairman thus far has been exceptionally responsible, fair and constructive. Thirdly, we had the Speaker's written request for access to all of HPSCI's proceedings and holdings for a member of his personal staff, a former professional staffer on the Committee. As I noted, Republican members of HPSCI had grave misgivings about approving such an unprecedented arrangement prior to amending those HPSCI rules and provisions of Rule 48 which appear clearly inconsistent with the arrangement for a unique and special designated staff position. Honestly, the Republican members and perhaps some Democratic members of HPSCI have never been able to understand why the Speaker seems to feel that he cannot rely on any Majority member of HPSCI, any member of HPSCI's core professional staff, or any combination of the two, to keep him adequately informed of matters before the Intelligence Committee in which he is interested. Instead, he seems convinced that only one particular member of his office staff can perform that function. Some HPSCI members have urged that the simplest way to keep the Speaker well informed on a routine basis is to make him an ex-officio member of HPSCI. Then he could be briefed at any time by any member of staffer of HPSCI and attend any committee proceeding. But, the Speaker indicated that he did not wish to be an ex-officio member because he is not a member of any other committee. Well, this baffled many of us. Ex-officio membership is no burden because their presence is not required for the committee to conduct its business. Under Rule 48, ex-officio members are not permitted to vote and are not counted to establish a quorum. Furthermore, the present Rule 48 makes the Republican Leader, Bob Michel, an ex-officio member of HPSCI although, like the Speaker, he does not serve on any other committee.

Recently, a new wrinkle unfolded with respect to the special access arrangement for the Speaker's designated staffer. A few days ago, the Speaker's staff designee was placed on the HPSCI staff payroll as well. It appears that after several months, concern has grown about the precedent of giving blanket access to HPSCI proceedings and information to a House employee who is not on the HPSCI staff. Interestingly, the idea of dual employment of an individual staffer on the payrolls of both the Speaker's office and HPSCI was floated several months ago and initially abandoned. Its resurrection raises other concerns related to the House Rules. Rule XI (Rule 11), Clause 6(a)(3) forbids the professional staff of committees from engaging in work other than committee business or being assigned any duties other than those pertaining to committee business. According to the Ethics Manual of the House (edition of the 100th Congress, 1st Sess.), `. . . it appears that the provision was intended to ensure that professional staff members of committees would work exclusively on committee business during their congressional work hours, as opposed to performing `other congressional office duties.' (p. 57). Thus, that rule would appear applicable to bar this type of dual employment. Perhaps that explains the peculiarly convoluted nature of the new status on HPSCI accorded the Speaker's designated staffer. He has been hired for a minimal salary by HPSCI and surprisingly denominated as a clerk. One immediately wonders whether this `title' was an attempt to evade the strictures of Rule XI (Rule 11,) which I mentioned. This is troubling because the individual, notwithstanding his title of `clerk', participates in briefings and discussions of regular committee professional staff in the same manner as those professionals. He does not appear to actually do or be assigned any clerical duties. This latest adjustment in his status therefore seems inconsistent with the spirit of Rule 11, Clause 6(a)(3). Thus, it also appears to violate the requirement of House Rule XLIII (Rule 43), the Code of Official Conduct, which obligates Members, officers and staff to adhere to the letter and spirit of the Rules of the House. However, if a way can be found to give a designated employee on the Speaker's staff blanket access to HPSCI information and meetings, consistent with House Rules, then naturally Republican Members would wish assurances that the Republican Leader would be accorded the opportunity for the same sort of staffing arrangement.

Having brought this background information to your attention, let me now turn to other reforms in Rule 48 which I propose in addition to including the same changes Mr. Beilenson recommends. As you know, I have long been concerned with the problem of `leaks' of classified information. It is a government-wide problem. This is due, in part, perhaps to the fact that too much information may be classified. That circumstance may encourage government officials and employees to be a little too casual about classified information, even in the vast majority of cases when it is quite properly classified. In any event, the ever-growing list of leaks of classified information has led me to conclude that we must begin to take steps to reduce the incidence of leaks.

I have no wish to spark an unproductive debate on which branch of our government is responsible for the most leaks, or which has the
highest percentage of leaks based on the number of its personnel with access to classified information, or which is responsible for the most serious or damaging leaks. Instead, as Members of the House, I think our first concern ought to be to take every reasonable measure to reaffirm and enhance our commitment to reducing the likelihood of leaks from congressional sources. Now, I certainly have no intention of engaging in recriminatory speculation about individual cases. However, none of us has to think very hard to recall instances of alleged leaks from congressional sources.

Of course, public commentators and foreign allies very often do not make fine distinctions regarding which House of Congress may have been the source of a leak of classified information, let alone which specific committee may have been involved. Therefore, leaks by any Member or committee may hurt the reputation of Congress as a whole in the eyes of those whose vital cooperation in promoting U.S. policy interests is contingent on their confidence in our discretion. This is especially the case when it comes to important intelligence relationships with foreign assets or allied liaison services. Those individuals may have a great deal at risk if their confidential cooperation or sensitive intelligence information they share with our government is leaked from congressional sources whose position in the legislative branch has made them privy to that knowledge.

That is why the place for the House to start publicly demonstrating to the American people a greater commitment to protecting classified information is with the Intelligence Committee, because it has sweeping access to the most sensitive kinds of classified information. The modest steps I have proposed for the next Congress of reducing the size of the Intelligence Committee and having a House security clearance system established for the members and staff of Committee, and the more immediate measure of instituting secrecy oaths for committee members and staff, will do two things. They will reduce the number of Members with ready access to sensitive intelligence information without degrading oversight capabilities. Furthermore, it will help the Committee develop a more vigilant frame of mind about constantly protecting that information.

Our intelligence officers will be able to point to these measures to help them give more persuasive assurances to an ally whom they are trying to convince to be more candid in sharing important information or to be otherwise helpful. It will also set a good example in these matters for other committees and Members, for the Senate and the Executive Branch. In addition, I believe that taking these steps will significantly encourage the Executive Branch to be more candid in sharing classified information with the Intelligence Committee. That will help to make the Committee's intelligence oversight activities more thorough and effective.

Now, let me summarize my proposed changes to Rule 48:

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1. Beginning with the new Congress, the 102nd Congress, the size of HPSCI would be reduced from the current 19 members to 13 members. Of those 13, not more than seven could be appointed from the same party. This would
return HPSCI to its original size in 1977. More importantly, by decreasing its size, it is axiomatic that we would reduce the mathematical probability of leaks, whether inadvertent or not, of the sensitive classified intelligence information which is the particular `stock in trade' of HPSCI. It is obvious that the more people who have access to any particular piece of classified information, the greater the chance that one of those individuals will suffer a monentary lapse of memory or self-discipline and leak it. Further, by waiting to implement this reduction in membership until the beginning of the new congress, it can be done painlessly without forcing any sitting member of HPSCI to leave the select committee before the expiration of the maximum term of six continuous years of membership. The required reduction of six slots, from a total of 19 now to a new total of 13, can be readily accomplished because at the end of the current congress, the terms of seven existing members expire (five Democrats and two Republicans).

Under my proposal, the reduced 13 member HPSCI membership also would be apportioned in a ratio of seven majority and six minority party Members. It has long been established that the intention of the House in creating HPSCI was that this special select committee should, as much as possible, be non-partisan. That has not always proved possible, let alone easy, on all issues and in all staffing matters. Nevertheless, it is a wise and laudable goal to seek to maximize the degree of non-partisanship in congressional oversight in the very important and highly sensitive realm of American intelligence interests and activities. A 7:6 ratio between majority and minority membership on the select committee will go a long way toward promoting a non-partisan, or at the very least bipartisan, approach to this vital area, yet it will ensure the majority leadership the one-vote margin necessary to retain ultimate control over committee activities. Our former colleague, Eddie Boland, HPSCI's first Chairman, told a number of us earlier this year that his preference when HPSCI was established was to have parity in the membership ratio. However, at the time, more senior members of the Democratic leadership disagreed. I think he was right.

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2. My proposed amendments to Rule XLVIII (Rule 48) would also establish a formal oath of secrecy to be taken by HPSCI members and committee staff. In the proposed oath, members and staff of the select committee would simply pledge not to disclose, directly, or indirectly, to any unauthorized person any classified information received in the course of their committee duties without the formal approval of the committee or of the House. A signed individual copy of the oath would be kept with the records of the House and also recorded in the Journal of the House and in the Congressional Record. This proposed oath will add greater weight and solemnity to the serious commitment of HPSCI members and staff to be vigilant in safeguarding classified information received in the course of their committee duties. Not only will taking this oath serve to underscore these profound responsibilities to protect sensitive classified intelligence information in our own minds, this commitment will be publicly acknowledged by its publication in the Congressional Record.

That will further enhance the reputation and public image of the House and serve as a clear example of high level legislative oversight commitment which will hopefully be emulated by other committees of the House and Senate.

There is also clear precedent from the earliest days of our nation for such a solemn oath of secrecy. In fact, the wording of the oath I propose is substantially the same as the oath required to be taken by members and staff of the Committee on Secret Correspondence of the Second Continental Congress. Frankly, if this oath was good enough for committee member Benjamin Franklin, I don't see why it should cause us any seriour concern.

Clause 7 of Rule XLVIII (Rule 48) would also be amended to refer specifically to violations of the oath of secrecy in the provisions of the rule regarding unauthorized disclosures by any Member, officer or employee of the House which the Committee on Standards of Official Conduct is required to investigate. HPSCI would be specifically authorized to refer cases of unauthorized disclosures and violations of the oath to the Ethics Committee. this would make clear that the existing rule does not require HPSCI to wait for the Ethics Committee to figure out for itself that a potential violation may have occurred and request specific information from HPSCI. While an investigation of such an apparent violation of the oath or unauthorized disclosure rules is pending, HPSCI could determine by majority vote to suspend the privilege of the Member who is the subject of the inquiry to have access to classified information. If it is ultimately determined that a Member has violated his oath, he would be permanently expelled from membership on HPSCI. A committee staffer found in violation would be permanently terminated from any employment with HPSCI. In either case, the House could also take any additional action it deems appropriate.

3. As I noted previously, my proposal would amend Rule 48, by adding the same language as Mr. Beilenson's resolution, to give the Speaker blanket access to the meetings and information in the possession of HPSCI. Likewise, my provision also excuses the Intelligence Committee from the requirement of Rule 48 that the Committee keep a written record of the particular information to which a non-member of the Committee was given access in cases where the non-member involved is the Speaker. Existing Rule 48 calls for uniform procedures for access to HPSCI meetings and information by other committees and non-members of HPSCI. It is couched in broad terms which make no exemptions for the Speaker's access, unlike the Majority Leader and Minority Leader who have access by virtue of the rule's provision specifically making them ex officio members of HPSCI. This is an anomaly which I think we all feel should be clearly rectified. Chairman Beilenson himself has introduced H. Res. 268 to take care of this matter, and my proposal does so as well, in the same manner as Mr. Beilenson's.

4. Lastly, my proposed changes in Rule 48 would prohibit any member or staff member of HPSCI, starting at the beginning of the next Congress (January
of 1991), from having access to classified information through his position with HPSCI unless and until that individual has been granted a security clearance by the House or a committee, other entity, or officer of the House authorized by it to grant security clearances. My proposal calls for the standards and procedures for such a new House security clearance program to be consistent with basic principles outlined for such a program in H. Res. 269, introduced recently by Mr. Solomon, Mr. Edwards of Oklahoma, and myself. In that regard, the House security clearance program would utilize standards and procedures comparable to those employed by the Executive Branch, but with the flexibility to accommodate any special considerations or circumstances of Legislative Branch operations. Under the guidelines incorporated by reference from H. Res. 269, HPSCI Members and staff would submit a personal history statement to the entity or officer of the House charged with responsibility for the security clearance program. A background or full field security investigation would be undertaken, the scope of which would generally depend on the level of clearance appropriate for access to the particular level and category classified information involved. Flexibility would be permitted to grant interim clearances, if necessary, while applications for regular clearances are pending. A House security clearance could also be granted to HPSCI Member or staff applicant who has been granted a clearance by the Executive Branch within a reasonable time before applying for a House security clearance.

Also, in keeping with the guidelines enumerated in H. Res. 269, if during a security investigation, significant information is developed that an individual, while a Member, officer or employee of the House, has made an unauthorized disclosure of classified information, that investigative information would be reported to the Committee on Standards of Official Conduct. Otherwise, the results of security investigations should be kept confidential unless the subject consents in writing to the disclosure of such information. Similarly, any decision to grant, deny, review, or withdraw a security clearance should be kept confidential except that such information could be disclosed to a committee or Executive Branch agency with a valid need to know whether the subject of the security clearance action has a clearance authorizing access to classified information to which that committee, department or agency is considering granting access. Such a decision could, of course, also be disclosed with the consent of the subject of the decision.

Lastly, the guidelines incorporated by reference from H. Res. 269 must also include appropriate procedures for the review and appeal of decisions to deny or withdraw clearances. In the case of Members, those procedures must include an opportunity for an affected Member to appeal such a decision to the House.

This security clearance requirement for HPSCI Members and staff would not take effect until the beginning of the next congress, more than a year from now. That would give the Rules Committee ample time to fully consider the details of the House security clearance program called for, to hold hearings if you think that advisable, and to prepare the necessary package of modifications to the House Rules for adoption when the new House in the 102nd Congress adopts its rules at the beginning of its first session.

The security clearance program would raise the House's consciousness of the very serious responsibilities arising from the need for access to sensitive classified information by our special intelligence oversight committee. It would be a model which should help encourage a more actively cautious mindset by all Members to guard against leaks of classified information entrusted to us. A more formal and organized system for the issuance, periodic review and renewal of security clearances will especially help those of us with the special responsibilities associated with HPSCI membership. It will encourage stronger habits of caution in what we say publicly about matters before HPSCI, providing an extra inner brake on the natural inclination to be communicative, which is inherent in the public discussion and debate of the Legislative Branch. Moreover, this limited requirement of House security clearances for HPSIC Members and staff can serve as a `pilot' program which will provide us with valuable experience to enlighten any future considerations of a security clearance program for other Members and staff who have access to classified information.

Thank you for your kind attention and interest. Now is the time for this committee to take a forward-looking position by bringing this package of modest but valuable reforms before the House.