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Calendar No. 74 105th Congress Report SENATE 1st Session 105-24 _______________________________________________________________________ AUTHORIZING APPROPRIATIONS FOR FISCAL YEAR 1998 FOR THE INTELLIGENCE ACTIVITIES OF THE UNITED STATES GOVERNMENT AND THE CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM AND FOR OTHER PURPOSES(摘录classification and related issues]_______ June 9, 1997.--Ordered to be printed _______________________________________________________________________ Mr. Shelby, from the Select Committee on Intelligence, submitted the following R E P O R T [To accompany S. 858] [...] Providing intelligence to the warfighter: The Khamisiyah experience The Khamisiyah experience revealed the need for the Intelligence and Defense Communities to improve the provision, handling, and use of intelligence information during a crisis situation. The Select Committee on Intelligence has undertaken an investigation into Intelligence Community warnings to the U.S. Army about chemical warfare agents at Khamisiyah, Iraq, in 1991 and suspicions that U.S. forces conducting demolition activities to the site may have been exposed to Chemical Weapons (CW) agents. Our preliminary review indicates substantial mismanagement and lack of communication among elements of the military and the Intelligence Community regarding information and warnings provided on Iraqi CW facilities, including Khamisiyah, as well as in the use made of this information. Intelligence support associated with Operations Desert Shield and Desert Storm, particularly in the area of information distribution and analysis, was often spotty, inconsistent, and slow. In addition, there were problems with multiple databases; inconsistent foreign language place names; limited sharing of sensitive but vital information; and incomplete searches of files in preparing lists of known or suspect CW facilities in Iraq. The Committee addresses the problem of inconsistent place names in Section 308 by directing the Director of Central Intelligence to issue guidelines to ensure the use of uniform spelling of foreign names and places and the uniform use of geographic coordinates. This should alleviate the problem of locating geographic places when searching intelligence reports, products, and databases in the future. The Committee directs the Director of Central Intelligence to submit to the Senate Select Committee on Intelligence, the Senate Committee on Armed Services, and the Senate Defense Subcommittee on Appropriations, no later than March 1, 1998, a report that identifies the specific actions that have been taken or are being taken to enhance cooperation between Department of Defense and the Intelligence Community by improving the provision, handling, and use of intelligence information in preparation for, during, and after battle. Such a report shall include those steps that intelligence agencies are undertaking to reconcile information in databases in order to eliminate confusion over potential targets (facilities and other sites). It shall also include a review of how intelligence components handle sensitive information and of their procedures for deciding how and what vital information to share with others. Further, the report shall contain an enumeration of those steps that intelligence agencies are undertaking to ensure that information searches are more thorough in order to provide military commanders on the ground with complete and timely information. [...] Ensuring flow of information to congress, policymakers, and the public The most effective intelligence capability in the world is worthless if the information collected is not provided to the people who need it. Consumers of intelligence include not only the warfighters and policymakers, but also the Congress and the American public. A key issue in this regard is the handling of classified information. The Committee is concerned that insufficient priority is attached to ensuring a thorough review of intelligence so that families concerned about the murder of a loved one overseas and the general public receive information the disclosure of which no longer threatens national security. There is also a risk that over-classification or undue restrictions on dissemination of intelligence information within the executive branch could prevent information from reaching the policymakers who need it to reach informed decisions. In addition, the Committee is concerned about the impact of classification on Congress' ability to learn from federal employees about wrongdoing within executive agencies and departments. The Committee is reviewing the findings and recommendations of the report by the Commission on Protecting and Reducing Government Secrecy released in March 1997. The twelve person bi-partisan Commission spent two years investigating how the U.S. Government classifies and declassifies national security information, grants security clearances, and protects information on automated systems. The Committee will examine the feasibility of implementing the Commission's recommendations in the Intelligence Community and intends to play an important role in the Senate's consideration of legislation regarding this issue. Providing information to victims and victims' families The Committee recently heard from the families of several Marines who were murdered in a terrorist attack in Zona Rosa, El Salvador, in 1985. A common refrain in their testimony was concern about how little information they received from their government regarding the attack and its perpetrators. It was from network television, for example, that at least one family first learned of the attack. Several families learned, years later from a television broadcast, that the likely mastermind of the attack had been brought into this country through official U.S. Government (USG) channels. The Committee has pressed the executive branch to provide these families with as much information as possible, but eleven years is a long time to wait. Similar frustration was expressed when the Committee heard during the last Congress from Americans who had lost their loved ones to violence in Guatemala. Subsequently, the Administration did establish a focal point on the Guatemala issues and this proved helpful to the families trying to negotiate through the maze of bureaucracies in search of relevant information. The Committee believes it is in the national interests of the United States to provide information regarding the murder or kidnaping of U.S. persons abroad to the families of the victims. Moreover, given the difficulty inherent in identifying all relevant information that might be held by disparate elements of the government, and the likely resistance to providing information that is currently classified, the Committee believes this important responsibility must ultimately be vested in a cabinet-level official.Therefore, the Committee has adopted a provision requiring the Secretary of State to ensure that all appropriate actions are taken within the USG to identify promptly all relevant information and to make it available to families to the maximum extent possible without seriously jeopardizing sensitive intelligence sources and methods or other vital national security interests. It is the Committee's expectation that the Secretary of State will act as an advocate for the families in the inevitable interagency debates regarding how much information can be disclosed. In order to improve the process for handling classified information in such a way that declassification can be accommodated efficiently, the Committee is providing additional funds to support the CIA's Declassification Factor (CDF). The Committee directs the DCI to review the current declassification polices and programs within the Intelligence Community and recommend measures to consolidate programs, evaluate agency performance, prioritize efforts, and provide adequate personnel and financial resources. The DCI's findings and recommendations should be provided to the intelligence oversight committees no later than September 1, 1997. Standardizing information control systems and markings The Committee commends the steps the CIA has taken to improve classification management practices, including efforts to make classifiers more accountable for their actions. Another important aspect of classification policies and procedures is information control systems and markings. Efforts to ensure that intelligence is appropriately disseminated and that information vital to the Nation's security is kept secure and all other information is ultimately released to the public will be enhanced by standardizing information control systems and markings. The Controlled Access Program Oversight Committee (CAPOC), as a part of the Community Management Staff, is leading an interagency project jointly with the Security Policy Board and the Intelligence System Secretariat to standardize guidance for the principle Sensitive Compartmented Information control systems and related classification and security markings. This project should result in improved consistency of compartmentation and classification management across intelligence disciplines and make an important contribution to interoperability among automated information systems in the Intelligence Community. The Committee urges the DCI to assign resources and priority attention to completion of updated classification guides and a unified list of compatible markings. In addition, the Committee encourages the DCI to incorporate into this effort other CIA collection disciplines. The Committee commends the efforts of the CAPOC to keep the Committee informed of its activities. The DCI is directed to review the activities and recommendations of the CAPOC and notify the Congressional Intelligence Committees if legislation is necessary to further standardization and enhance oversight of these controlled access programs. Disclosures of classified information to Congress The Committee is also concerned that executive branch policies on classified information could interfere with its ability to learn of wrongdoing within the elements over which it has oversight responsibility. The Committee's concern has been heightened by its review of executive branch opinions in this area, most recently articulated in a December 5, 1996 letter from the Director of Central Intelligence informing a State Department employee who was accused of having revealed sensitive classified information to a Member of Congress of the decision to deny him access to Sensitive Compartmental Information. The letter stated that "[n]either a security clearance, nor access to SCI give an individual the right or authority to make unilateral decisions to disclose classified information to others, including to cleared Members of Congress.'' Without addressing the merits of that particular decision or attempting to resolve the factual disputes in that case, the Committee noted in a letter to the Acting DCI on January 3, 1997, that it was troubled by the reasoning underlying the decision because of its potential impact on the ability of the intelligence oversight committees to ensure they are informed of possible wrongdoing. The Committee is particularly concerned that federal employees may view the decision or other relevant statements by elements of the Executive Branch, including opinions from the Department of Justice, to mean that there are no circumstances under which they can bring information to Congress that they believe evidences wrongdoing if to do so requires disclosure to Congress of classified information. The Committee fully appreciates the need to carefully protect national security information, particularly information the disclosure of which might reveal sensitive intelligence sources or methods. Indeed, the select committees for oversight of intelligence were established in part to balance that need for protection with the equally compelling need for Congress to have access to information necessary for effective oversight. Moreover the Committee has worked closely with the Intelligence Community to establish appropriate procedures for the routine provision of intelligence information to the committees. However, it is essential that where these standard procedures fail to get the necessary information to Congress, for example, because the wrongdoing involves the very individuals who would have to authorize the disclosure or the authorization is not forthcoming, then employees must have an alternative. The Committee has included in this bill a provision designed to ensure that Congress receives information necessary to fulfill its constitutional oversight responsibilities. The bill directs the President to issue guidance for all executive branch employees making it clear that disclosures of classified information to appropriate oversight committees or the employee's own Congressional representative is not prohibited by any law, executive order, regulation, or policy if the employee reasonably believes that such information evidences a violation of any law, rule, or regulation; a false statement to Congress on an issue of material fact; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. Disclosure to an appropriate oversight committee means disclosure to cleared staff or a member of the committee with responsibility for the agency involved in the wrongdoing in their capacity as staff or committee member. Committee staff or members who receive such information from an employee are presumed to have received it in their capacity as members or staff of the appropriate oversight committee and are responsible for ensuring that the information is protected and brought to the attention of the leadership of the committee or its staff directors. Executive branch opinions note that Executive Order 12356 on classification requires that classified information be disclosed only to a person with the appropriate clearance and a "need to know.'' Members of Congress are cleared by virtue of the election to office. This provision recognizes that, at a minimum, the committee with primary oversight jurisdiction over the elements allegedly engaged in wrongdoing and the member of Congress representing the employee have a need to know the information and such disclosure is consistent with the Executive Order. Notification of Congress To conduct effective oversight the Committee must also receive notification of intelligence activities in a timely and complete fashion. Section 502 of the National Security Act of 1947 requires that the Committees be informed of all intelligence activities including any significant anticipated intelligence activity as well as any significant intelligence failure. In several cases the Committee has received notice well after the fact and follow-up requests for further information have not been responded to promptly and completely. The Committee reaffirms the requirement that notification occur in advance of the activity if it is anticipated or foreseeable. Where there is not time to provide written notice in advance, or where the event was not foreseeable, immediate verbal notice will suffice until written notice is provided; written notice should be provided within five business days. Follow-up requests from the Committee for additional information and/or supporting documentation regarding a notification must be addressed promptly and completely. [...] Section 306 directs the President to inform all executive branch employees that disclosing classified information to an appropriate oversight committee or to their Congressional representative is not prohibited by any law, executive order, regulation, or policy; provided, that the employee reasonably believes that the classified information evidences a violation of any law, rule, or regulation; a false statement to Congress on an issue of material fact; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. This provision is intended to ensure that Congress receives information necessary to fulfill its constitutional oversight responsibilities. Disclosure to an appropriate oversight committee means disclosure to cleared staff or a member of the committee with jurisdiction over the agency involved in the wrongdoing in their capacity as staff or a committee member. Members or Committee staff who receive such information from an employee are presumed to have received it in their capacity as members or staff of the appropriate oversight committee. Members and staff are responsible for ensuring that the information is protected and brought to the attention of the leadership of the committee or its staff directors. The President, by informing executive branch employees as directed in this provision, will make it clear that disclosure to the appropriate oversight committee or member is authorized, thereby recognizing that these committees and members have a "need to know'' the information as required by current executive branch restrictions on disclosure of classified information. Section 307 expresses a sense of Congress that it is in the national interest of the United States to provide information regarding the murder or kidnaping of United States persons abroad to the families of the victims. Moreover, Congress believes that the responsibility for providing such information is sufficiently important that this provision vests it in a cabinet-level official. This provision requires the Secretary of State to ensure that the United States Government takes all appropriate actions to identify promptly all relevant unclassified and classified information in the possession of the United States Government. The provision further requires the Secretary of State to ensure that all unclassified information is made available to the victims' families. With respect to classified information, this provision directs the Secretary of State to work with the Director of Central Intelligence to release all relevant information that would not jeopardize intelligence sources or methods, or vital national security interests. If the Secretary of State and the Director of Central Intelligence determine that intelligence sources or methods would not be jeopardized and no vital national security interest would be compromised by the release of classified information, this provision directs the Secretary to release that information to the appropriate recipient. The Committee realizes that there will be interagency disagreement about what should or should not be released under this provision. When such disagreements arise, the Committee expects the Secretary of State to act as an advocate for the families. Section 308 addresses the Committee's concern that intelligence reporting and analysis lacks standards for foreign names and places. Recent reporting suggests that U.S. troops may have received inadequate intelligence warnings in the Gulf War because of inconsistent references to locations in Iraq. These inconsistencies may have contributed to the possible exposure of U.S. military forces to chemical agents released during the destruction of Iraqi weapons caches. Intelligence databases maintained by various entities within the intelligence community are a critical national resource. The Intelligence Community must standardize the names and places in each database to allow for effective and consistent support for war fighters and national security policy makers. This provision calls on the DCI to conduct a survey of standards currently in place throughout the Intelligence Community and to issue guidelines for community- wide standards. The DCI is further directed to report the results of this survey, no later than 90 days after the enactment of this Act, and provide a copy of the guidelines to the Intelligence Committes no later than 180 days after the enactment of this Act. [...]