国会记录：1997年5月7日（参议院）第S4106-S4115报表ON提出的法案和联合决议案通过莫伊尼汉先生（为自己和赫尔姆斯先生）：S. 712法案，以提供一个系统的分类信息国家安全和系统来撤销密级这些信息的利益;对政府事务委员会。1997年莫伊尼汉先生政府保密法。主席先生，我很高兴能够加入我的同事从北卡罗莱纳州参议员赫尔姆斯在介绍得克萨斯州的国会议员1997年拉里·康佰政府保密法和印第安纳州的汉密尔顿在众议院今天下午介绍伴侣的立法。我们四个人，用等八大杰出人士，在过去的2年担任该委员会关于保护和减少政府秘密一起。今天早些时候，我们四个人在上政府事务委员会主席由汤普森呼吁审查委员会的报告，3月份出台的听证会作证在一起。我们今天介绍的立法，旨在落实该委员会的核心建议之一：需要一个法规确立的原则来管理的分类和解密信息。随后的言论今早跟踪政府事务委员会之前，我的见证。我们首先定义我们的主题。 "Secrecy is a form of government regulation." It can be understood in terms of a now considerable literature concerning how organizations function. Begin with the German scholar Max Weber, writing eight decades ago in his chapter "Bureaucracy" in "Wirtschaft und Gesellschaft" (Economy and Society): Every bureaucracy seeks to increase the superiority of the professionally informed by keeping their knowledge and intentions secret. Bureaucratic administration always tends to be an administration of "secret sessions"; in so far as it can, it hides its knowledge and action from criticism. The pure interest of the bureaucracy in power, however, is efficacious far beyond those areas where purely functional interests make for secrecy. The concept of the "official secret" is the specific invention of bureaucracy, and nothing is so fanatically defended by the bureaucracy as this attitude, which cannot be substantially defended beyond these specifically qualified areas. Normal regulation concerns how citizens are to behave. As the administrative state developed in the United States, beginning with the Progressive Era at the turn of the century and expanding greatly under the New Deal, legal scholars began to ask just what these new rules were. Were they laws? If not, then what? In 1938, Roscoe Pound, chairman of the American Bar Association's Special Committee on Administrative Law and former Dean of the Harvard Law School, attacked those "who would turn the administration of justice over to administrative absolutism . . . a Marxian idea," and inveighed against those "progressives, liberals, or radicals who desire to invest the National Government with totalitarian powers in the teeth of constitutional democracy . . ." We managed to get a handle on that system, in no small measure through the efforts of Erwin Griswold, also a dean of the Harvard Law School, and others who decried the fact that administrative regulations equivalent to law had become increasingly important to everyday life and yet were not available to the public. One year after Professor Griswold published a seminal article calling for the publication of such rules and regulations, Congress enacted the Federal Register Act of 1935. Eleven years later, in 1946, working from the recommendations made in 1941 by the Attorney General's Committee on Administrative Procedure, chaired by Dean Acheson, Congress enacted the Administrative Procedure Act. Thus, today our system of public regulation is public indeed. Regulations are both widely accessible and subject to the APA's set of procedural requirements--bringing a degree of order and accountability to this regime. Secrecy, by contrast, concerns what citizens may know, but the citizen does not know what may not be known. Our Commission states: Americans are familiar with the tendency to overregulate in other areas. What is different with secrecy is that the public cannot know the extent or the content of the regulation. Thus, secrecy is the ultimate mode of regulation; the citizen does not even know that he or she is being regulated. It is a parallel regulatory regime with a far greater potential for damage if it malfunctions. Flowing from this understanding of secrecy as regulation is the recognition that, to paraphrase Justice Potter Stewart's opinion in the Pentagon Papers case, when everything is secret, nothing is secret. We state: The best way to ensure that secrecy is respected, and that the most important secrets remain secret, is for secrecy to be returned to its limited but necessary role. Secrets can be protected more effectively if secrecy is reduced overall. It is time to reexamine the foundations of that secrecy system. The Information Security Oversight Office report to Congress last week estimated the direct costs of secrecy at $5.2 billion in 1996 alone. The same Office reports that in 1995 we had 21,871 original new top secret designations and another 374,244 derivative top secret designations. Meaning that, in a single year, roughly 400,000 new secrets were created at the Top Secret level alone--the disclosure of any one of which would cause exceptionally grave damage to the national security. It is also time to examine the appropriateness of security arrangements [[Page S4111]] put in place during an earlier age, when the perceived threats were so different from those of today. In 1957, the only previous commission established by the Congress to examine the secrecy system--the Commission on Government Security--issued a report that, for any number of reasons--in particular the fact that its core recommendation that amounted to prior restraint of the press--did nothing to change the prevailing mode. Although the Commission did understand classification as a cost; its report ``stresses the dangers to national security that arise out of overclassification of information which retards scientific and technological progress, and thus tend to deprive the country of the lead time that results from the free exchange of ideas and information." When the Commission on Government Security presented its report to President Eisenhower and the Congress, we still were consumed with concerns about a Federal Government infiltrated by ideological enemies of the United States. Today, the public and its representatives have few such concerns; indeed, today it is the U.S. Government that increasingly is the object of what Edward Shils in 1956, in ``The Torment of secrecy," termed the ``phantasies of apocalyptic visionaries." We are not proposing putting an end to secrecy. It is at times terribly necessary and used for the most legitimate reasons. But secrecy need not remain the only norm: We must develop a competing culture of openness, fully consistent with our interests in protecting national security, but in which power is no longer derived primarily from one's ability to withhold information. I am struck in this regard by a most remarkable letter that I received on March 25 from George F. Kennan, professor emeritus at the Institute for Advanced Study in Princeton, NJ, in response to our Commission report. As lucid and thoughtful as ever at age 93, Professor Kennan builds a compelling case for the proposition that much of our secrecy system arose out of our efforts to penetrate the obsessively secretive Soviet Communist regime of the Stalin era. And that the system we put in place remains largely intact today, even as that adversary has disappeared. Professor Kennan writes: It is my conviction, based on some 70 years of experience, first as a government official and then in the past 45 years as an historian, that the need by our government for secret intelligence about affairs elsewhere in the world has been vastly over-rated. I would say that something upwards of 95% of what we need to know about foreign countries could be very well obtained by the careful and competent study of perfectly legitimate sources of information open and available to us in the rich library and archival holdings of this country. I ask unanimous that the full text of Professor Kennan's letter be inserted in the Record. I should note further that Professor Kennan's conclusion about the share of information available from open sources also has been reached by other notable observers of the secrecy system--the estimable George P. Shultz among them. Developing a culture of openness within the Federal Government requires that secrecy be defined in statute. A statute will not put an end to overclassification and needless classification, but it will help by ensuring that the present regulatory regime cannot simply continue to flourish without any restraint. Classification should proceed according to law; classifiers should know that they are acting lawfully and properly. We need to balance the possibility of harm to national security against the public's right to know what the Government is doing, or not doing. We should establish by statute that secrecy belongs in the realm of national security and must serve that interest alone. It should not be employed as a badge of office or a status symbol. Thus we propose this statute, the Government secrecy Act of 1997. As noted, Representatives Combest and Hamilton are cosponsoring a companion measure in the House of Representatives. This legislation-- defining the principles and standards to govern classification and declassification, and establishing within an existing agency a National Declassification Center to coordinate responsibility for declassifying historical documents--is drawn directly from the Commission's recommendation for such a statute, as set out in the summary and in chapter I of our report. I look forward to reviewing the legislation, as well as the other findings and recommendations of the Commission, with Members of this body, as well as our colleagues in the House of Representatives, executive branch officials, and interested persons outside of Government, in the weeks ahead. I send the bill to the desk and ask unanimous consent that it be printed in the Record and be referred to the appropriate committee. There being no objection, the material was ordered to be printed in the Record, as follows: S. 712 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the "Government Secrecy Act of 1997". SEC. 2. PURPOSE. It is the purpose of this Act to promote the effective protection of classified information and the disclosure of information where there is not a well-founded basis for protection or where the costs of maintaining a secret outweigh the benefits. SEC. 3. FINDINGS. The Congress makes the following findings: (1) The system for classifying and declassifying national security information has been based in regulation, not in statute, and has been governed by six successive Executive orders since 1951. (2) The Commission on Protecting and Reducing Government secrecy, established under Public Law 103-236, issued its report on March 4, 1997 (S. Doc. 105-2), in which it recommended reducing the volume of information classified and strengthening the protection of classified information. (3) The absence of a statutory framework has resulted in unstable and inconsistent classification and declassification policies, excessive costs, and inadequate implementation. (4) The implementation of Executive orders will be even more costly as more documents are prepared and used on electronic systems. (5) United States taxpayers incur substantial costs as several million documents are classified each year. According to figures submitted to the Information Security Oversight Office and the Congress, the executive branch and private industry together spent more than $5.2 billion in 1996 to protect classified information. (6) A statutory foundation for the classification and declassification of information is likely to result in a more stable and cost-effective set of policies and a more consistent application of rules and procedures. (7) Enactment of a statute would create an opportunity for greater oversight by the Congress of executive branch classification and declassification activities, without impairing the responsibility of executive branch officials for the day-to-day administration of the system. SEC. 4. CLASSIFICATION AND DECLASSIFICATION OF INFORMATION. (a) Classification For National Security Reasons.--The President may, in accordance with this Act, protect from unauthorized disclosure information in the possession and control of the executive branch when there is a demonstrable need to do so in order to protect the national security of the United States. The President shall ensure that the amount of information classified is the minimum necessary to protect the national security. (b) Procedures for Classification and Declassification.-- (1) In general.--The President shall, to the extent necessary, establish categories of information that may be classified and procedures for classifying information under subsection (a). The President shall, concurrently with the establishment of such categories and procedures, establish, and allocate resources for the implementation of, procedures for declassifying information previously classified. (2) Publication of categories and procedures.-- (A) The President shall publish notice in the Federal Register of any categories and procedures proposed to be established under paragraph (1) with respect to both the classification and declassification of information, and shall provide an opportunity for interested agencies and other interested persons to submit comments thereon. The President shall take into account such comments before establishing the categories and procedures, which shall also be published in the Federal Register. (B) The procedures set forth in subparagraph (A) shall apply to any modifications in categories or procedures established under paragraph (1). (3) Agency standards and procedures.--The head of each agency shall establish standards and procedures for classifying and declassifying information created by that agency on the basis of the categories and procedures established by the President under paragraph (1). Each agency head, in establishing and modifying standards and procedures under this paragraph, shall follow the procedures required of the President in paragraph (2) for establishing and modifying [[Page S4112]] categories and procedures under that paragraph. (c) Considerations in Determining Classification and Declassification.-- (1) In general.--In determining whether information should be classified or declassified, the agency official making the determination shall weigh the benefit from public disclosure of the information against the need for initial or continued protection of the information under the classification system. If there is significant doubt as to whether information requires such protection, it shall not be classified. (2) Written justification.-- (A) Original classification.--The agency official who makes the decision to classify information shall identify himself or herself and shall provide in writing a detailed justification for that decision. (B) Derivative classification.--In any case in which an agency official classifies a document on the basis of information previously classified that is included or referenced in the document, that agency official shall identify himself or herself in that document. (d) Standards for Declassification.-- (1) Initial classification period.--Information may not remain classified under this Act for longer than a 10-year period unless the head of the agency that created the information certifies to the President at the end of such period that the information requires continued protection, based on a current assessment of the risks of disclosing the information, carried out in accordance with subsection (c)(1). (2) Additional classification period.--Information not declassified prior to or at the end of the 10-year period referred to in paragraph (1) may not remain classified for more than a 30-year period unless the head of the agency that created the information certifies to the President at the end of such 30-year period that continued protection of the information from unauthorized disclosure is essential to the national security of the United States or that demonstrable harm to an individual will result from release of the information. (3) Declassification schedules.--All classified information shall be subject to regular review pursuant to schedules each agency head shall establish and publish in the Federal Register. Each agency shall follow the schedule established by the agency head in declassifying information created by that agency. (4) Assessment of existing classified information.--Each agency official responsible for information which, before the effective date of this Act-- (A) was determined to be kept protected from unauthorized disclosure in the interest of national security, and (B) had been kept so protected for longer than the 10-year period referred to in paragraph (1), shall, to the extent feasible, give priority to making decisions with respect to declassifying that information as soon as is practicable. (e) Reports to Congress.--Not later than December 31 of each year, the head of each agency that is responsible for the classification and declassification of information shall submit to the Congress a report that describes the application of the classification and declassification standards and procedures of that agency during the preceding fiscal year. (f) Amendment to Freedom of Information Act.--Section 552(b)(1) of title 5, United States Code, is amended to read as follows: "(1)(A) specifically authorized to be classified under the Government secrecy Act of 1997, or specifically authorized, before the effective date of that Act, under criteria established by an Executive order to be kept secret in the interest of national security (as defined by section 7(6) of the Government secrecy Act of 1997), and (B) are in fact properly classified pursuant to that Act or Executive order;". SEC. 5. NATIONAL DECLASSIFICATION CENTER. (a) Establishment.--The President shall establish, within an existing agency, a National Declassification Center, the functions of which shall be-- (1) to coordinate and oversee the declassification policies and practices of the Federal Government; and (2) to provide technical assistance to agencies in implementing such policies and practices, in accordance with this section. (b) Functions.-- (1) Declassification of information.--The Center shall, at the request of any agency and on a reimbursable basis, declassify information within the possession of that agency pursuant to the guidance of that agency on the basis of the declassification standards and procedures established by that agency under section 4, or if another agency created the information, pursuant to the guidance of that other agency on the basis of the declassification standards and procedures established by that agency under section 4. In carrying out this paragraph, the Center may use the services of officers or employees or the resources of another agency, with the consent of the head of that agency. (2) Coordination of policies.--The Center shall coordinate implementation by agencies of the declassification policies and procedures established by the President under section 4 and shall ensure that declassification of information occurs in an efficient, cost-effective, and consistent manner among all agencies that create or otherwise are in possession of classified information. (3) Disputes.--If disputes arise among agencies regarding whether information should or should not be classified, or between the Center and any agency regarding the Center's functions under this section, the heads of the agencies concerned or of the Center may refer the matter to the President for resolution of the dispute. (c) National Declassification Advisory Committee.-- (1) In general.--There is established a 12-member National Declassification Advisory Committee. 4 members of the Advisory Committee shall be appointed by the President and 2 members each shall be appointed by the majority and minority leaders of the Senate, the Speaker of the House of Representatives, and the minority leader of the House of Representatives. (2) Membership.--The members of the Advisory Committee shall be appointed from among distinguished historians, political scientists, archivists, other social scientists, and other members of the public who have a demonstrable expertise in declassification and the management of Government records. No officer or employee of the United States Government shall be appointed to the Advisory Committee. (3) Duties.--The Advisory Committee shall provide advice to the Center and make recommendations concerning declassification priorities and activities. (d) Annual Reports.--The Center shall submit to the President and the Congress, not later than December 31 of each year, a report on its activities during the preceding fiscal year, and on the implementation of agency declassification practices and its efforts to coordinate those practices. SEC. 6. INFORMATION TO THE CONGRESS. Nothing in this Act shall be construed to authorize the withholding of information from the Congress. SEC. 7. DEFINITIONS. As used in this Act-- (1) the term "Advisory Committee" means the National Declassification Advisory Committee established under section 5(c); (2) the term "agency" means any executive agency as defined in section 105 of title 5, United States Code, any military department as defined in section 102 of such title, and any other entity in the executive branch of the Government that comes into the possession of classified information; (3) the term "Center" means the National Declassification Center established under section 5(a); (4) the terms "classify", "classified", and "classification" refer to the process by which information is determined to require protection from unauthorized disclosure pursuant to this Act in order to protect the national security of the United States; (5) the terms "declassify", "declassified", and "declassification" refer to the process by which information that has been classified is determined to no longer require protection from unauthorized disclosure pursuant to this Act; and (6) the term "national security of the United States" means the national defense or foreign relations of the United States. SEC. 8. EFFECTIVE DATE. This Act shall take effect 180 days after the date of the enactment of this Act. ____ Institute for Advanced Study, School of Historical Studies, Princeton, NJ, March 25, 1997. Senator Daniel P. Moynihan, Russell Senate Office Building, Washington, DC. Dear Senator: Thank you for your note of the 7th, and for the copy of your recent talk at Georgetown, which I have read with deep appreciation. There are several points you touched on in that talk which, were we sitting at leisure around a fireside, I would like to pursue. I cannot treat them all here. But there is one matter on which you did not specifically mention but which lies close to the subject you had in mind, and on which I am moved to say a word. It is a matter on which I have long looked for, but never found, a suitable chance to comment publicly. It is my conviction, based on some 70 years of experience, first as a government official and then in the past 45 years as an historian, that the need by our government for secret intelligence about affairs elsewhere in the world has been vastly over-rated. I would say that something upwards of 95% of what we need to know about foreign countries could be very well obtained by the careful and competent study of perfectly legitimate sources of information open and available to us in the rich library an archival holdings of this country. Much of the remainder, if it could not be found here (and there is very little of it that could not) could easily be non- secretively elicited from similar sources abroad. In Russia, in Stalin's time and partly thereafter, the almost psychotic preoccupation of the Communist regime with secrecy appeared to many, not unnaturally, to place a special premium on efforts to penetrate that curtain by secretive methods of our own. This led, of course, to the creation here of a vast bureaucracy dedicated to this particular purpose; and this latter, after the fashion of all great bureaucratic structures, has endured to this day, long after most of the reasons for it have disappeared. Even in the Soviet time, much of it was superfluous. A lot of what we went to such elaborate and dangerous means to obtain secretly would have been here for the having, given the requisite quiet and scholarly analysis of what already lay before us. [[Page S4113]] The attempt to elicit information by secret means has another very serious negative effect that is seldom noted. The development of clandestine sources of information in another country involves, of course, the placing and the exploitation of secret agents on the territory of that country. This naturally incites the mounting of a substantial effort of counterintelligence on the part of the respective country's government. This, in turn, causes us to respond with an equally vigorous effort of counterintelligence in order to maintain the integrity of our espionage effort. But for a variety of reasons, this competition in counterintelligence efforts tends to grow into dimensions that wholly overshadow the original effort of positive intelligence procurement that gave rise to it in the first place. It takes on aspects which cause it to be viewed as a game, played in its own rights. Unfortunately, it is a game requiring such lurid and dramatic character that it dominates the attention both of those that practice it, and of those in the press and the media who exploit it. Such is the fascination it exerts that it tends wholly to obscure, even for the general public the original reasons for it. It would be interesting to know what proportion of the energies and expenses and bureaucratic involvement of the C.I.A. is addressed to this consuming competition, and whether one ever stacks this up against the value of its almost forgotten original purposes. Do people ever reflect, one wonders, that the best way to protect against the penetration of one's secrets by others is to have the minimum of secrets to conceal? One more point. At the bottom of the whole great effort of secret military intelligence, which has played so nefarious a part in the entire history of great-power relationships in this passing century, there has usually lain the assumption by each party that if it did not engage to the limit in that exercise the other party, working in secret, might develop a weapon so devastating that with it he could confront all others with the demand that they submit to his will "or else". But this sort of anxiety is now greatly outdated. The nuclear competition has taught us that the more terrible the weapons available, the more suicidal becomes any conceivable actual use of them. With the recognition of the implications of this simple fact would go a large part of the motivation for our frantic efforts of secret intelligence. In this respect, too, this is really a new age. It is time we recognized it and drew the inescapable conclusions. There may still be areas, very small areas really, in which there is a real need to penetrate someone else's curtain of secrecy. All right. But then please, without the erection of false pretenses and elaborate efforts to deceive--and without, to the extent possible--the attempt to maintain "spies" on the adversary's territory. We easily become ourselves, the sufferers from these methods of deception. For they inculcate in their authors, as well as their intended victims, unlimited cynicism, causing them to lose all realistic understanding of the interrelationship, in what they are doing, of ends and means. Forgive me for burdening you with this outburst. I am not unloading upon my friends, in private letters, thoughts I should probably have brought forward publicly long ago. I have to consider that this is the only way I can put some of these thoughts into words before, in the case of a person 93 years of age, it becomes too late. Warm and admiring greetings. Very sincerely, George Kennan. Mr. HELMS. I am pleased to join Senator Moynihan today in introducing a bill that would for the first time place in statute the Government system for the classification of information. To date this has been accomplished solely through Executive order. The statute is based on the recommendations contained in the report of the Commission to Protect and Reduce Government secrecy chaired by my colleague Pat Moynihan, the senior Senator from New York. The secrecy Commission achieved a unified report of recommendations--a feat that should not be underrated, especially in Washington. The Commission, by law, had the twin goals of studying how to protect important Government secrets and simultaneously reducing the amount of classified documents and materials. All Commissioners began their deliberations with the premise that Government secrecy is a form of regulation that, like all regulations, should be used sparingly, and certainly never for the goal of keeping the truth from the American people. Commissioners also began the process recognizing that over- classification can actually weaken the protections of those secrets that truly are in our national interest. All the same I am obliged to begin with a reiteration of the obvious--that the protection of true national security information remains vital to the well-being and security of the United States. The end of the cold war notwithstanding, the United States continues to face serious and long-term threats from a variety of fronts. While Communist and anti-American regimes, such as North Korea, Cuba, Iran, and Iraq, continue to wage a war of espionage against the United States, new threats have arisen as well. Most alarming, perhaps, is the growing trend of espionage conducted not by our enemies but by American allies. Such espionage is on the rise especially against U.S. economic secrets. According to a February 1996 report by GAO, classified military information and sensitive military technologies are high priority targets for the intelligence agencies of U.S. allies. At first blush, a push to reduce Government secrecy may seem at odds with these increasing threats. I am convinced it is not. The sheer volume of government secrets--and their cost to the taxpayers and U.S. business--is staggering. In 1996 the taxpayers spent more than $5.2 billion to protect classified information. We know all too well from our own experiences that when everything is secret nothing is secret. secrecy all too often then becomes a political tool used by executive branch agencies to shield information which may be politically sensitive or policies which may be unpopular with the American public. Worse yet, information may be classified to hide from public view illegal or unethical activity. On numerous occasions I, and other Members of Congress, have found the executive branch to be reluctant to share certain information, the nature of which is not truly a national secret, but which would be potentially politically embarrassing to officials in the executive branch or which would make known an illegal or indefensible policy. I have also found that one of the largest impediments to openness is the perverse incentives of the Government bureaucracy itself in favor of classification, and the lack of accountability for those who do the actual classification. I strongly endorse the Commission's recommendation of adding individual accountability to the process by requiring original and derivative classifiers to actually identify themselves and include within the documents a justification of the decision to classify. The only way to change a bureaucracy is to reverse the incentive to classify. A good example of how to change this lack of bureaucratic accountability is a provision contained in H.R. 3121--legislation which we approved in the Foreign Relations Committee last year that was signed into law. Previously, details on U.S. commercial arms sales to foreign governments were not made available to the public unless a citizen requested that the State Department make it public. The incentive therefore was to keep the information closely regulated. H.R. 3121 provides that all arm sales will be made public unless the President determines that the release of the information is contrary to U.S. national security interest. Although this may appear to be a small nuance, the bureaucratic incentive is changed enormously to favor openness. Shifting the burden in this way can introduce more openness into the system and force the bureaucracy to identify true national security threats. I am convinced, however, that the single most important recommendation of our Commission that Congress should focus on is the concept of creating a life cycle for secrets. This means that all information, classified and unclassified alike, has a life span in which decisions must be made regarding creation, management, and use. This kind of rationalization would shift the burden to favor openness and reduce some of the costs associated with declassification. I would add a note of caution to the Commission's work on declassification, however. In the course of the 2 years of its work, the Commission became very interested in the declassification of existing documents and materials. In a perfect world, if information remains relevant to true U.S. national interests it should remain classified indefinitely. Information that does not compromise U.S. interests and sources should be made public. We all realize, however, that this is a tremendously costly venture. In fact, the Commission was unable to come up with solid data on the true cost of declassification. In this era when Congress has finally begun to grasp the essential need to reduce Government spending and balance the budget, the issue of balancing costs [[Page S4114]] and benefits is an essential one. The financial costs to the American taxpayers must be balanced against the necessity of the declassification. The real lesson to take from the work of this Commission is the need to redress for the future the problems of over classification and a systematic process for declassification, so that the costs and timeliness of declassification does not pose the same economic and regulatory burdens on future generations. At the same time, it may be too costly to declassify all of the countless classified documents now in existence. With this caveat in mind, I hope the Congress will focus on bringing government-wide rationalization to the classification process. It is an area where tough congressional oversight is long overdue. ____________________