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

          INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2001

  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
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."
  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.

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