Congressional Record: December 6, 2000 (Senate)
Page S11649-S11651



  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.

                           Amendment No. 4360

  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 
  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."
  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 
  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 
  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" 
  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 
  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 
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (H.R. 5630), as amended, was read the third time and passed.