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20–922 PDF 2005

EMERGING THREATS: OVERCLASSFICATION AND

PSEUDO-CLASSIFICATION

HEARING

BEFORE THE

SUBCOMMITTEE ON NATIONAL SECURITY,

EMERGING THREATS, AND INTERNATIONAL

RELATIONS

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

MARCH 2, 2005

Serial No. 109–18

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

CHRISTOPHER SHAYS, Connecticut

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

CANDICE S. MILLER, Michigan

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

GINNY BROWN-WAITE, Florida

JON C. PORTER, Nevada

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

CHARLES W. DENT, Pennsylvania

VIRGINIA FOXX, North Carolina

——— ———

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

BRIAN HIGGINS, New York

ELEANOR HOLMES NORTON, District of

Columbia

———

BERNARD SANDERS, Vermont

(Independent)

MELISSA WOJCIAK, Staff Director

DAVID MARIN, Deputy Staff Director/Communications Director

ROB BORDEN, Parliamentarian

TERESA AUSTIN, Chief Clerk

PHIL BARNETT, Minority Chief of Staff/Chief Counsel

SUBCOMMITTEE ON NATIONAL SECURITY, EMERGING THREATS, AND INTERNATIONAL

RELATIONS

CHRISTOPHER SHAYS, Connecticut, Chairman

KENNY MARCHANT, Texas

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

JON C. PORTER, Nevada

CHARLES W. DENT, Pennsylvania

DENNIS J. KUCINICH, Ohio

TOM LANTOS, California

BERNARD SANDERS, Vermont

CAROLYN B. MALONEY, New York

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

EX OFFICIO

TOM DAVIS, Virginia HENRY A. WAXMAN, California

LAWRENCE J. HALLORAN, Staff Director and Counsel

J. VINCENT CHASE, Chief Investigator

ROBERT A. BRIGGS, Clerk

ANDREW SU, Minority Professional Staff Member

(III)

C O N T E N T S

Page

Hearing held on March 2, 2005 .............................................................................. 1

Statement of:

Ben-Veniste, Richard, Commissioner, National Commission on Terrorist

Attacks Upon the United States .................................................................. 88

Blanton, Thomas, executive director, National Security Archive, George

Washington University; Harry A. Hammitt, editor and publisher, Access Reports: Freedom of Information; Sibel Edmonds, former Contract

Linguist, Federal Bureau of Investigation .................................................. 109

Blanton, Thomas ....................................................................................... 109

Edmonds, Sibel .......................................................................................... 147

Hammitt, Harry A. .................................................................................... 128

Leonard, J. William, Director, Information Security Oversight Office, National Archives and Records Administration; Rear Admiral Christopher

A. McMahon, U.S. Maritime Service, Acting Director, Departmental

Office of Intelligence, Security and Emergency Response, Department

of Transportation; and Harold C. Relyea, Specialist in National Government, Congressional Research Service, Library of Congress .................... 44

Leonard, J. William ................................................................................... 44

McMahon, Rear Admiral Christopher A. ................................................ 53

Relyea, Harold C. ...................................................................................... 66

Letters, statements, etc., submitted for the record by:

Ben-Veniste, Richard, Commissioner, National Commission on Terrorist

Attacks Upon the United States:

Letters dated February 11 and March 1, 2005 ....................................... 107

Prepared statement of ............................................................................... 93

Blanton, Thomas, executive director, National Security Archive, George

Washington University, prepared statement of ......................................... 114

Edmonds, Sibel, former Contract Linguist, Federal Bureau of Investigation:

Letters dated June 19, 2002 and August 13, 2002 ........................................ 149

Prepared statement of ............................................................................... 186

Report dated January 2005 ...................................................................... 154

Hammitt, Harry A., editor and publisher, Access Reports: Freedom of

Information, prepared statement of ............................................................ 130

Higgins, Hon. Brian, a Representative in Congress from the State of

New York, prepared statement of ................................................................ 42

Kucinich, Hon. Dennis J., a Representative in Congress from the State

of Ohio, prepared statement of .................................................................... 9

Leonard, J. William, Director, Information Security Oversight Office, National Archives and Records Administration, prepared statement of ....... 47

Maloney, Hon. Carolyn B., a Representative in Congress from the State

of New York, prepared statement of ........................................................... 33

McMahon, Rear Admiral Christopher A., U.S. Maritime Service, Acting

Director, Departmental Office of Intelligence, Security and Emergency

Response, Department of Transportation, prepared statement of ............ 55

Relyea, Harold C., Specialist in National Government, Congressional Research Service, Library of Congress, prepared statement of ..................... 68

Shays, Hon. Christopher, a Representative in Congress from the State

of Connecticut, prepared statement of ........................................................ 3

Waxman, Hon. Henry A., a Representative in Congress from the State

of California:

Letter dated March 1, 2005 ...................................................................... 15

Prepared statement of ............................................................................... 27

(1)

EMERGING THREATS: OVERCLASSFICATION

AND PSEUDO-CLASSIFICATION

WEDNESDAY, MARCH 2, 2005

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON NATIONAL SECURITY, EMERGING

THREATS, AND INTERNATIONAL RELATIONS, COMMITTEE ON GOVERNMENT REFORM, Washington, DC.

The committee met, pursuant to notice, at 1 p.m., in room 2154,

Rayburn House Office Building, Hon. Christopher Shays (chairman

of the subcommittee) presiding.

Present: Representatives Shays, Kucinich, Maloney, Waxman,

Marchant, Turner, Dent, Van Hollen, Higgins, and Ruppersberger.

Staff present: Lawrence Halloran, staff director and counsel; J.

Vincent Chast, chief investigator; R. Nicholas Palarino, senior policy advisor; Robert Briggs, clerk; Hagar Hajjar, professional intern;

Andrew Su, minority professional staff member; and Jean Gosa,

minority assistant clerk.

Mr. SHAYS. A quorum being present, the Subcommittee on National Security, Emerging Threats, and International Relations

hearing entitled, ‘‘Emerging Threats, Overclassification and Pseudo-Classification,’’ is called to order.

The cold war cult of secrecy remains largely impervious to the

new security imperatives of the post-September 11 world. Overclassification is a direct threat to national security. Last year, more

Federal officials classified more information and declassified less

than the year before.

In our previous hearing on official secrecy policies, the Department of Defense [DOD], witness estimated that fully half of all the

data deemed ‘‘confidential, secret or top secret’’ by the Pentagon

was needlessly or improperly withheld from public view. Further

resisting the call to move from a need to know to a need to share

standard, some agencies have become proliferators of new categories of shielded data. Legally ambiguous markings, like sensitive but unclassified, sensitive homeland security information and

for official use only, create new bureaucratic barriers to information sharing. These pseudo-classifications can have persistent and

pernicious practical effects on the flow of threat information.

Today Chairman Davis, Government Management Subcommittee

Chairman Platts and I asked the Government Accountability Office

[GAO], to analyze the scope and impact of these categories on critical information sharing. The National Commission on Terrorist Attacks upon the United States, referred to as the 9/11 Commission,

concluded that ‘‘Current security requirements nurture overclassiVerDate 11-MAY-2000 08:44 Jun 07, 2005 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 D:\DOCS\20922.TXT HGOVREF1 PsN: HGOVREF1
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fication and excessive compartmentalization of information among

agencies. Each agency’s incentive structure opposes sharing with

risks, criminal, civil and internal administrative sanctions, but few

rewards for sharing information. No one has to pay the long term

cost of overclassifying information, though these costs are substantial.’’

Those costs are measured in lives as well as dollars. Somewhere

in the vast cache of data that never should have been classified,

and may never be declassified is that tiny nugget of information

that if shared, it could be used to detect and prevent the next deadly terrorist attack. Recently enacted reforms should help focus and

coordinate disparate elements of the so-called intelligence community to broaden our view of critical threat information.

The previously ignored, but still unfunded public interest declassification board has new authority to push for executive branch adherence to disclosure standards, particularly with regard to congressional committee requests. But those promising initiatives still

confront deeply entrenched habits and cultures of excessive secrecy.

The 9/11 Commission successfully worked through security barriers

to access and publish the information they needed. But as soon as

the Commission’s legal mandate expired, heavy-handed declassification practices reasserted themselves. As a result, release of

the final staff report on threats to civil aviation was delayed, and

the version finally made public contains numerous redactions, some

of which needlessly seek to shield information already released by

other agencies.

The cold war was a struggle of the industrial age. The global war

against terrorism is being waged and must be won by the new

rules of the information age. Data and knowledge are the strategic

elements of power. With such a few keystrokes, individuals and

groups can now acquire technologies and capabilities once the solve

province of Nation States. Modern adaptable networks asymmetrically attack the rigid hierarchical structures of the past.

In this environment, there is security in sharing, not hoarding

information that many more people need to know. We asked our

witnesses this afternoon in our three panels to help us assess the

impact of current access restrictions on efforts to create the trusted

networks and new information sharing pathways critical to our national security. We look forward to their testimony and thank them

for their presence.

At this time the Chair would recognize the ranking member of

the subcommittee, Mr. Kucinich.

[The prepared statement of Hon. Christopher Shays follows:]

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Mr. KUCINICH. I thank the Chair.

Good afternoon to all the witnesses and to members of the committee. Mr. Chairman, I believe in addition to the problem that

this committee brings to light about the over-use and misuse in the

classification of Federal documents, it could be said that the real

problem before us goes beyond that. It’s not the quantity of materials classified and declassified, it’s not about which words are

missing or about the implausible justifications based upon our national security. The real and growing problem we must address is

the reflexive secrecy rampant through the administration.

The American people cannot get straight answers about the situation in Iraq, about the treatment of detainees at Abu Ghraib or

at Guantanamo Bay, Cuba. The American people cannot get the intelligence budget of the United States, the American people cannot

get the truth about Social Security. The American people have a

right to know and to get the unbiased facts from their Government.

Congress also has a right to know, particularly this oversight

committee, which is charged to find waste, fraud and abuse. Yet

even before this committee we have heard a Department of Defense

official tell us that last August she believed 50 percent of all materials are mis-classified at the Pentagon. Some believe the number

is higher.

Instead of making information available or sharing information,

the current administration has reversed the trend toward openness

started under the Clinton administration. Instead of a presumption

against classifying a document in case of doubt with the use of a

lower level of classification when the appropriate level of classification was uncertain, this was used during the Clinton administration, the current administration’s policy is simple: withhold the

truth from the public through what you could call

hyperclassification.

The Bush administration has dramatically increased the volume

of Federal materials concealed from the American people. The

President’s Executive Order 13292, issued in March 2003, permitted officials to classify information when there was doubt

whether or not to do so, and allowed officials to classify information

at the more restrictive level when there was a question as to the

appropriate level. We now have new and more levels of restricted

access to information, such as the ‘‘sensitive but unclassified’’ and

‘‘critical infrastructure information’’ designations. Instead of utilizing the interagency security classification appeals panel established

by President Clinton, where historical records were declassified at

record rates and on a timely automated schedule, this administration’s Executive order has delayed and weakened the system of

automatic declassification and under-utilized the appeals panel.

Most tellingly, this administration didn’t even include funds for

the public interest declassification board in its fiscal year 2006 proposed budget. The administration’s excessive use of classification

restrictions on dissemination and release of documents delays in

declassifying materials and disrespect toward open government is

really a danger to our democracy.

It’s a common assertion by this administration that we need to

be secret to be safe. But the fact of the matter is, as has been stated by one of the witnesses we are going to hear from, we’re losing

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protection by too much secrecy. And this climate of secrecy is antithetical to a democratic society. This climate of secrecy takes us toward a type of government which is not democratic, which is profoundly undemocratic, which has that kind of a stale, garbage-like

whiff of fascism to it.

So this is a serious matter that is up for discussion today. But

we really need to go beyond it. Because while we’re sitting here discussing this matter, the administration is moving ahead with policies, without the permission of the American people, spending

money without the permission of the American people and cloaking

it in a need for secrecy. And while they’re doing it, they’re tearing

the Constitution to pieces.

[The prepared statement of Hon. Dennis J. Kucinich follows:]

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Mr. SHAYS. I thank the gentleman. I agree with many of his comments.

Mr. Marchant, our new vice chairman of the subcommittee, is

recognized, if he has an opening statement.

Mr. MARCHANT. Mr. Chairman, it’s a privilege for me to be on

this subcommittee with you and be a vice chairman. As a freshman, I’m employing the practice of listening and learning and will

have some questions later.

Mr. SHAYS. Hopefully we all will practice that. Thank you. It’s

wonderful to have you on the committee and as vice chairman.

Mr. Turner—I’m sorry, we did have a statement, so I’m sorry,

Mr. Waxman.

Mrs. Maloney, wonderful to have you on the committee and the

Chair would recognize you.

Mrs. MALONEY. I yield to Mr. Waxman.

Mr. SHAYS. Mrs. Maloney defers and yields to Mr. Waxman, the

ranking member of the full committee. I guess that was an anticipation of that, Mr. Waxman.

Mr. WAXMAN. Thank you, Mr. Chairman, for holding this hearing

and for your leadership in addressing the issue of government secrecy. Incredibly, it seems to necessary to state the obvious today:

the Government belongs to the people. The American people understand that some information must be kept secret to protect the

public safety. But when the Government systematically hides information from the public, Government stops belonging to the people.

Unfortunately, there have been times in our Nation’s history

when this fundamental principle of openness has come under attack. The Watergate era of the Nixon administration was one of

those times. We are now living through another.

Over the last 4 years, the executive branch has engaged in a systematic effort to limit the application of the laws that promote open

government and accountability. Key open government laws, such as

the Freedom of Information Act, the Presidential Records Act and

the Federal Advisory Committee Act, have been narrowed and misconstrued. At the same time, the administration has greatly expanded its authority to classify documents, to conduct secret investigations and to curtail Congress’ access to information.

Last fall, I released a report entitled Secrecy in the Bush administration. This detailed many of these threats to the principle of

open government. And Mr. Chairman, I would like to ask unanimous consent to put this report into the hearing record for today.

Mr. SHAYS. Without objection, this report will be put into the

record.

[NOTE.—The minority report entitled, ‘‘Secrecy in the Bush Administration,’’ may be found in subcommittee files.]

Mr. WAXMAN. Yesterday, I wrote a letter to Chairman Shays that

described a new threat to openness in government, the administration’s mis-use of rapidly proliferating designations, such as sensitive but classified, and for official use only, to block the release

of important information. I would also ask unanimous consent that

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this letter be made a part of today’s hearing as well, Mr. Chairman, unanimous consent to make my letter to you part of the

record.

Mr. SHAYS. Yes, thank you, your letter will be part of the record.

[The information referred to follows:]

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Mr. WAXMAN. Many of these new designations have been created

out of thin air by the administration. They do not have a basis in

Federal statute, and there are no criteria to guide their application.

It appears that virtually any Federal employee can stamp a document ‘‘sensitive but unclassified’’ and there do not appear to be uniform procedures for removing these designations. The examples we

discovered are alarming. The executive branch has been using

these novel designations to withhold information that is potentially

embarrassing, not to advance national security.

Last year I wrote a letter to Secretary Powell that revealed that

the State Department’s annual terrorism report was grossly inaccurate. This Government report claimed that terrorist attacks

reached an all-time low in 2003. In fact, exactly the opposite was

true. Significant attacks by terrorists actually reached an all-time

high.

To his credit, Secretary Powell admitted that mistakes were

made and required the issuance of a new report. Several months

later, the inspector general prepared a report that examined what

went wrong. The report was released to the public in one version.

And another version, a ‘‘sensitive but unclassified’’ version, was

sent to certain offices in Congress. My staff compared the two versions. They were identical except for one difference. The ‘‘sensitive

but unclassified’’ version reported that the CIA played a significant

role in preparing the erroneous report. This information was redacted in the public version.

I have a message for the administration. Admitting that the CIA

made a mistake is not a national security secret. Another example

involves the role that Under Secretary of State John Bolton played

in preparing an infamous fact sheet that erroneously alleged that

Iraq tried to import uranium from Niger. The State Department

wrote me in September 2003 that Mr. Bolton ‘‘did not play a role

in the creation of this document.’’ But a ‘‘sensitive but unclassified’’

chronology, which has never been released to the public, shows

that actually Mr. Bolton did direct the preparation of the fact sheet

and received multiple copies of the draft.

Apparently, sensitive but unclassified is also a code word for embarrassing to senior officials. And here’s an ironic example. The Department of Homeland Security used the sensitive but unclassified

designation to withhold the identity of the ombudsman that the

public is supposed to contact about airline security complaints. I

suggested to Chairman Shays that this subcommittee should investigate the mis-use of these designations, and I am glad to report

that he has agreed. In fact, we are signing letters today seeking information from several agencies about the way they use these new

designations. With his support, I hope we can impose some restraints on this new form of government secrecy.

There are other issues I hope we can examine today. One involves the process that was used to declassify important 9/11 Commission documents. Last month, we learned about long delays in

the declassification and release of key documents that called into

question statements made by now-Secretary of State Condoleezza

Rice and other senior administration officials. These embarrassing

documents were not released until after the Presidential elections

and 48 hours after Ms. Rice’s confirmation as Secretary of State.

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Today I hope we can learn more about the delay in the release of

these documents and whether politics played any role.

Another important topic is the case of Sibel Edmonds, who will

testify on the third panel. Ms. Edmonds joined the FBI in 2001 as

a linguist. But she was fired just a few months later for warning

her superiors about potential espionage occurring with the Bureau.

Last month, the Justice Department Inspector General released an

unclassified report that vindicated Ms. Edmonds, finding that her

core allegations were clearly corroborated. Yet the Justice Department has repeatedly sought to prevent inquiries into her case by

citing secrecy concerns. Indeed, government lawyers even argued

that her legal efforts to obtain redress should be thrown out of

court to avoid the risk of disclosing sensitive information.

Mr. Chairman, let me close by thanking you for holding this

hearing, for investigating the problematic, sensitive but unclassified designation and for including Ms. Edmonds in the hearing.

This hearing and your actions demonstrate that openness in government is not a partisan issue. The fact is, there is bipartisan concern in Congress that the pendulum is swinging too far toward secrecy. I look forward to the testimony of the witnesses today.

[The prepared statement of Hon. Henry A. Waxman follows:]

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Mr. SHAYS. I thank the gentleman for his statement and for the

work of his staff. You have done a lot of work that you have reason

to be very concerned about.

At this time the Chair would recognize Mr. Turner, the former

vice chairman of the committee, now chairman of?

Mr. TURNER. Federalism and Census. Thank you, Mr. Chairman,

and thank you for your leadership on this issue, and for your assistance in my continuing on this subcommittee. This obviously is

a very important issue. Just this week I believe we had a reminder

of the issue of classification when we were all receiving information

from our news media about the possible communication between

Osama bin Ladin and Moussaoui, and looking to possible potential

attacks on the United States. I think we all heard, as we looked

at the news, and read the news accounts, that we were informed

that the Homeland Security Department issued a classified bulletin

to officials over the weekend about the intelligence, which spokesman Brian—I’m not even going to guess at that one—described as

credible but not specific. The indulgence was obtained over the past

several weeks, officials said.

Clearly, we’ve gotten to the point where we have become desensitized to what is either classified or not. One of the dangers of

overclassification is that people no longer handle the information

sensitively. In this instance, within I believe a day or two of it

being issued, it’s national news on CNN and all of our newspapers,

which of course means that our adversaries, in addition to our

friends, are reading it.

This is an important hearing that you are holding, in that it will

assist us in identifying what really is important and needs to be

protected information and hopefully assist us in keeping it classified and confidential.

Thank you.

Mr. SHAYS. I thank the gentleman for his statement. At this

time, the Chair would recognize the gentlelady from New York

City.

Mrs. MALONEY. Clearly, for me, nothing highlights better the

overclassification of government documents than the 9/11 Commission staff report dealing with civil aviation. The release of this report was delayed for months beyond all documents of the 9/11 Commission report, and is heavily redacted. It is the only document

that the 9/11 Commission members received that had one word

covered in ink. Every other document that they received in their

investigation was not redacted, just the civil aviation one.

Not only is it ironic that the underlying 9/11 Commission report

spoke to the need to move from a need to know environment to a

need to share environment. I think it is absolutely an outrage that

large portions and parts of this report are being kept from the

American people, including the September 11 families who fought

so very, very hard to get answers on why September 11 happened,

and how we could work to prevent it in the future, another future

attack.

Although the 9/11 Commission staff completed its report on August 26, 2004, the Bush administration refused to declassify the

findings until January 28, 2005, less than 48 hours after

Condoleezza Rice was confirmed as Secretary of State. During the

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period between August 26th and January 28th, the Commission

was reportedly reviewing the Commission’s report to determine

whether it contained any information that should be classified in

the interest of national security.

Problems with this process have been raised previously by the 9/

11 Commission. On February 9th, the New York Times reported

that the monograph had been turned over to the National Archives

nearly 2 weeks before it had been heavily redacted. No notice was

provided to me or any of the 25 Members of Congress who had

written the Justice Department for its release. To say the least, the

contents of the monograph were troubling. It states that,

In the months before September 11, Federal aviation officials reviewed dozens of

intelligence reports that warned about Osama bin Ladin and Al-Qaeda, some of

which specifically discussed airline hijackings and suicide operations.

Fifty-two intelligence reports from the FAA mentioned bin Ladin or Al-Qaeda

from April to September 10, 2001. Five of the intelligence reports specifically mentioned Al-Qaeda’s training or capability to conduct hijackings. And two mentioned

suicide operations, although not connected to aviation. Despite these warnings, the

FAA, lulled into a false sense of security and intelligence that indicated a real and

growing threat leading up to 9/11, did not stimulate significant increase in security

procedures.

This is what we know from public parts of the report. That day

Chairman Shays and I called on the Justice Department to release

the full, unredacted report, just like all previous documents of the

9/11 Commission. The delayed release, the ultimate timing of the

release, the contents and the heavy redactions raise very serious

concerns to me. That is why I was so pleased to join with the full

committee ranking member, Henry Waxman, calling for hearings

on this matter. I look very much forward to hearing from 9/11

Commissioner Richard Ben-Veniste, who will be testifying on this,

along with the other witnesses.

In our letter, we raise concerns on whether the administration

mis-used the classification process to withhold, possibly for political

reasons, and it questions the veracity of statements, briefings and

testimony by then National Security Advisory Condoleezza Rice, regarding this issue. I have concerns that the administration abused

the classification process to improperly withhold the 9/11 Commission findings from Congress and the public, until after the November elections and the confirmation of Condoleezza Rice as Secretary

of State.

I really want to learn today what were the specific rationales for

each redaction in the report, and were these redactions appropriate. I have one example that is on display right now, where no

one can argue that it is not over-classification. On this board you

can clearly see the public testimony of Mike Canavan, a top FAA

official before the 9/11 Commission on May 23, 2003. On this board

is the same testimony partially redacted. The testimony that is

blacked out reads, ‘‘We are hearing this, this, and this from this

organization. It was just a gain in the chatter piece, so to speak.’’

So I truly do not understand why public testimony that is released to the public could ever end up covered by black ink and officially redacted.

With regard to our questions surrounding Secretary Rice, during

her tenure as President Bush’s national security advisor, she made

several categorical statements asserting that there were never any

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warnings that terrorists might use airplanes and suicide attacks.

One possibility is that Secretary Rice was unaware of the extensive

FAA warnings when she appeared before the press and testified before the 9/11 Commission. This would raise serious questions about

her preparation.

Another possibility is that Secretary Rice knew about the FAA

warnings but provided misleading information to the Commission.

Neither of these possibilities would reflect well on Secretary Rice.

Perhaps there are other, more innocent explanations for these

seeming inconsistencies.

I look forward to the testimony of our witnesses, and I hope to

find out how, when and why this document was classified. Finally,

I would like to thank Chairman Shays, in accommodating our request for including Sibel Edmonds as a witness. I would like to

welcome her. She will be testifying publicly for the first time ever

before Congress, despite the fact that she was wrongly fired by the

FBI 3 years ago for trying to do her patriotic duty by raising concerns with possible espionage within the FBI.

Even though the Justice Department Inspector General found

that her claims had merit, the administration to this day has not

fully investigated these serious issues, and amazingly, has still not

made Ms. Edmonds whole. I hope that this situation will change,

and I look forward to understanding how new designations that

have no basis in Federal law or statute came into existence. Secrecy in government, particularly on public policy issues, ones from

which we want to learn in order to prevent such actions in the future, are very, very serious, and I welcome the chairman and the

ranking member’s efforts. I’m glad to join them in this effort.

Thank you.

[The prepared statement of Hon. Carolyn B. Maloney follows:]

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Mr. SHAYS. Before recognizing our other three members, who will

have as much time as they would like, I do want to point out that

Admiral McMahon has somewhat of a crisis meeting at the White

House; in other words, this is not a typical meeting, you are being

asked to be there for certain events that have happened today. And

you will be leaving at 2:30. I just want the members to know that.

I’m told that we will have votes at 2, which means they’ll leave the

machine open, so he’ll probably get to leave at 2:15. So I’d just like

the Members to be aware of that, but only because that should be

information you might want to know.

Mr. Van Hollen, and then we’ll go to Mr. Higgins and then to Mr.

Ruppersberger.

Mr. VAN HOLLEN. Thank you, Mr. Chairman. I will be brief, just

two things. First, with respect to classified information and use of

classified information, abuse of classified information, there are

two separate issues, and both identified by the 9/11 Commission report. One is the overcompartmentalization of legitimately classified

information. They focus very much on the importance of sharing

across agencies, because it doesn’t do us any good in protecting our

national security if one agency is sitting on a critical piece of the

puzzle that when combined with another piece of the puzzle gives

us a fuller picture.

Then of course there is the issue that we’re looking at today,

which is the overclassification of information in general. I want to

thank the chairman for all his leadership on this issue and just

say, it always amazes me to have briefings by Secretary Rumsfeld

and others in this administration, and frankly in past administrations, in previous jobs as well, where they classified as secret or top

secret, and you get into the room and you’ve heard what just happened had been reported on CNN or Fox News or whatever it may

be, or you read it in the newspaper the next day.

It does breed a lot of cynicism about the abuse of classified information. I see it, it’s just constant. Secret information is in the

newspapers often before it’s told to Members of Congress. I hope

that we can develop a system that truly classifies the information

that is critical to protect in our national security and not classify

information that’s an important part of the public debate in an exchange of views which is also essential to protecting our national

security.

Thank you, Mr. Chairman.

Mr. SHAYS. I thank the gentleman for his statement.

Mr. Higgins, it’s wonderful to have you as part of this committee.

Mr. HIGGINS. I have no questions at this time, Mr. Chairman,

thank you.

[The prepared statement of Hon. Brian Higgins follows:]

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Mr. SHAYS. Thank you very much.

With that, I will announce our witnesses. I don’t think Mr.

Ruppersberger is here.

We have Mr. J. William Leonard, Director, Information Security

Oversight Office, National Archives and Records Administration.

We have Rear Admiral Christopher A. McMahon, Acting Director,

Departmental Office of Intelligence, Security and Emergency Response, Department of Transportation; and Mr. Harold Relyea,

Specialist in American National Government, Congressional Research Service, Library of Congress.

Gentlemen, if you will stand up, we will swear you in right away.

As you know, we swear in all our witnesses.

Raising your right hand, do you solemnly swear or affirm that

the testimony you will give before this subcommittee will be the

truth, the whole truth and nothing but the truth?

[Witnesses sworn.]

Mr. SHAYS. Note for the record our three witnesses have responded in the affirmative. I ask unanimous consent that all members of the subcommittee be permitted to place an opening statement in the record and the record will remain open for a few days

for that purpose. Without objection, so ordered.

I ask further unanimous consent that all witnesses be permitted

to include their written statements in the record. Without objection, so ordered.

I thank the cooperation of the subcommittee, and Mr. Leonard,

you have the floor.

STATEMENTS OF J. WILLIAM LEONARD, DIRECTOR, INFORMATION SECURITY OVERSIGHT OFFICE, NATIONAL ARCHIVES

AND RECORDS ADMINISTRATION; REAR ADMIRAL CHRISTOPHER A. McMAHON, U.S. MARITIME SERVICE, ACTING DIRECTOR, DEPARTMENTAL OFFICE OF INTELLIGENCE, SECURITY AND EMERGENCY RESPONSE, DEPARTMENT OF TRANSPORTATION; AND HAROLD C. RELYEA, SPECIALIST IN NATIONAL GOVERNMENT, CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF CONGRESS

STATEMENT OF J. WILLIAM LEONARD

Mr. LEONARD. Thank you, Mr. Chairman, and I appreciate your

holding this hearing today and for inviting me.

Our Nation and our Government, of course, are profoundly different in a post-September 11 world. Our citizens’ sense of vulnerability has increased, as have their expectations of their Government to keep them safe. In each situation, information is crucial.

On the one hand, Americans are concerned that information may

be exploited by our country’s adversaries to harm us. On the other

hand, impediments to information sharing among Federal agencies

and with State and local and private entities need to be continuously addressed in the interest of homeland security.

Even more so, the free flow of information is essential if citizens

are to be informed, and if they are to hold their Government accountable. In many regards, our Government is confronted with the

twin imperatives of information sharing and information protecVerDate 11-MAY-2000 08:44 Jun 07, 2005 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6633 D:\DOCS\20922.TXT HGOVREF1 PsN: HGOVREF1
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tion, two responsibilities that are contained in her intention but

are not incompatible.

I direct the Information Security Oversight Office under two Executive orders and applicable Presidential guidance, my office has

substantial responsibilities with respect to classification of information by agencies within the executive branch. It is Executive Order

12958, as amended, that sets forth the basic framework and legal

authority by which executive branch agencies classify national security information.

Pursuant to its Constitutional authority, in this order the President authorizes a limited number of officials to apply classification

to certain national security related information. This authority is

an essential and proven tool for defending our Nation. The ability

to deceive and surprise the enemy can spell the difference between

success and failure on the battlefield.

Similarly, it’s nearly impossible for intelligence services to recruit

human sources who often risk their lives aiding our country or to

obtain assistance from other countries’ intelligence services unless

such sources can be assured of complete and total confidentiality.

Likewise, certain intelligence methods can only work if the adversary is unaware of their existence.

Classification, of course, can be a double edged sword. Limitations on dissemination of information that are designed to deny information to the enemy on the battlefield can increase the risk of

a lack of awareness on the part of our own forces, contributing to

the potential for friendly fire incidents or other failures. Similarly,

imposing strict compartmentalization of information obtained from

human agents increases the risk that a Government official with

access to other information that could cast doubt on the reliability

of the agent would not know of the use of that agent’s information

elsewhere in the Government.

Simply put, secrecy comes at a price. I continuously encourage

agencies to become more successful in factoring this reality into the

overall risk equation when making classification decisions.

Classification is an important fundamental principle when it

comes to national security. But it need not and it should not be an

automatic first principle. In certain circumstances, even with respect to national security information, classification can run

counter to our national interests. The decision to classify information or not is ultimately the prerogative of the agency original classification authorities. The exercise of agency prerogative to classify

certain information has ripple effects throughout the entire executive branch. For example, it can serve as an impediment to sharing

information with another agency, with State or local officials, or

with the public, who generally need the information.

In delegating classification authority, the President has established clear parameters for its use and certain burdens that must

be satisfied, which I have detailed in my prepared written testimony. As I testified the last time I appeared before this subcommittee, it is my view that Government classifies too much information. Primarily, I believe because classifieds often becomes an

automatic decision rather than an informed, deliberate decision.

My official oversight responsibilities rest solely with classified

national security information and do not extend to the various inVerDate 11-MAY-2000 08:44 Jun 07, 2005 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6633 D:\DOCS\20922.TXT HGOVREF1 PsN: HGOVREF1
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formation access restrictions designations used by agencies to control some unclassified information. Nonetheless, as a minimum, I

believe that proven effective attributes of the classification system

can be used as benchmarks when evaluating any information protection framework. I have listed such attributes in my prepared

written testimony.

Again, I want to thank you for inviting me here today, Mr.

Chairman, and I would be happy to answer any questions that you

or other Members may have.

[The prepared statement of Mr. Leonard follows:]

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Mr. SHAYS. Thank you, Mr. Leonard. Admiral McMahon, you

need to bring that mic a little closer, sir.

STATEMENT OF REAR ADMIRAL CHRISTOPHER A. McMAHON

Admiral MCMAHON. Thank you, Mr. Chairman, for your kindness in realizing I have to be in the White House in the next hour.

Mr. Chairman and members of the subcommittee, I’m Rear Admiral Christopher McMahon, U.S. Maritime Service, U.S. Department of Transportation. By way of introduction, I have just recently returned from Baghdad, where I have been serving as the

transportation counselor and director of the Iraqi Reconstruction

Management Office of Transportation at the American Embassy. In

these positions, I have been responsible for Iraqi reconstruction in

all modes of transportation.

I currently serve in DOT’s Office of Intelligence, Security and

Emergency Response, where in this capacity, among other things,

I help advise the Secretary on the Department’s contacts with the

intelligence community, including the Department of Homeland Security and other Federal agencies involved with homeland security.

I am honored to be here to discuss with you how the Department

of Transportation is balancing the needs for secrecy necessary to

ensure homeland security with the public’s right to know its Government’s activities.

At DOT, we adhere to the requirements of the Freedom of Information Act in making determinations about what information

sought by the public may be disseminated and what may be lawfully withheld. We use FOIA not only to determine our responses

to public information requests, but also to advise our employees on

how they should treat the information they handle. In the context

of protecting information vital to homeland security, our principal

tool is the authority given to us and to DHS to designate information as security sensitive information [SSI].

At DOT, we use this designation only to refer to information that

Congress has mandated that we protect. We also have an administrative safeguarding designation for sensitive information that is

not necessarily security related that we label for official use only

[FOUO], which I will discuss later in my testimony.

When Congress created the Department of Homeland Security

under the Homeland Security Act of 2002, it not only transferred

TSA from DOT to DHS, along with it the authority to establish

SSI, but this same law gave similar authority to establish SSI

within DOT. I wish to emphasize that SSI is not a security classification; hence, individuals need not have formal national security

clearance to access SSI. What they must have is a need to know,

and they must provide assurances that they understand and will

comply with regulations related to the possession and permissible

use of SSI.

In this way, we can share with other Federal agencies, State,

local and tribal governments, industry and other persons with a

need to know vital information related to homeland security without the fear that this information may be released to unvetted requestors.

When Secretary Mineta confronted the question of how SSI authority was to be handled within DOT, Secretary Mineta took five

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very affirmative steps. First, he delegated the authority to designate information as SSI to the heads of all the operating entities

within DOT, that is the administration, as it pertained to their own

modes of transportation, but subject to the guidance and direction

of the director of intelligence, security and emergency response,

and from the Department of Transportation’s general counsel’s office, who is also the departmental officer for FOIA.

Second, the Secretary specifically directed that the Department

not use this authority to evade its responsibilities under FOIA by

stating, and I quote Secretary Mineta in part, ‘‘finding the right

balance between protecting what needs to be protected and revealing what should be revealed is important. I expect all of us to give

it the attention it deserves.’’

Third, Secretary Mineta further directed that we report to him

regularly and review any case in which his authority is used to

make a decision either to designate information as SSI or not to

do so. Fourth, he asked the DOT Inspector General to review

DOT’s implementation of its SSI authority after 1 year to ensure

that SSI designation process that we have in the Department is

being used properly and is not being used to exempt information

from public disclosure.

Finally, the Secretary directed that we coordinate with the Department of Homeland Security on how our two departments will

use our parallel SSI authorities. My staff is learning day in and

day out how truly challenging that charge from Secretary Mineta

is, and that is to find the right balance between protecting what

needs to be protected and revealing what should be revealed. However, as we use this authority to protect the American people, I

have emphasized to the heads of our operating administrations

that they keep in mind that our actions must always conform to

the law and with the Secretary’s admonition that we not use this

authority to restrict unreasonably the public’s right to know how

we are carrying out our duties.

I want to discuss for a moment, and I’ve heard it mentioned in

your statements, the designation, the administrative designation

for sensitive information that we at DOT refer to—yes, sir?

Mr. SHAYS. Admiral, if you could try to finish up in a minute,

because you will be leaving so quickly.

Admiral MCMAHON. Sure. I want to raise a final issue, and that

is the Department’s issue on the September 11 testimony. Questions have been raised as to the role, whether or not FAA used or

the Department of Transportation used its authority to classify information in the interest of national security. The answer is no, we

did not. In my testimony you will see the explanation for that.

I would also like to emphasize one last point, and that is, we

have very limited SSI in place now at DOT. There are only two

documents that are SSI that we have designated SSI, and in 2004

and 2005, there are no documents that we designated secret, which

I think is important. So our use of SSI and secret has been extremely limited in the Department of Transportation.

I will be pleased to respond to any questions that the committee

has.

[The prepared statement of Admiral McMahon follows:]

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Mr. SHAYS. Thank you. I’m going to go out of order. Mr. Relyea

has graciously agreed to let questions be asked of you, primarily,

Admiral, before you go. Candidly, since some of my Democratic colleagues have more questions to ask of you than we may have, we’re

going to start with them and keep that order, because we only have

about 25 minutes for you.

At this time the Chair would recognize Mr. Waxman.

Mr. WAXMAN. Thank you very much, Mr. Chairman, for this

courtesy, and Mr. Relyea, thank you also as well. The Admiral did

indicate he has to leave, and I wanted to be able to ask him some

questions.

I know it was short notice and you’re new on the job, so I thank

you for directly addressing the declassification of the 9/11 Commission staff report. As you know, the 9/11 Commission staff finished

the report in August. Reviewing FAA warnings to airport security

officials, the report found that ‘‘the FAA had indeed considered the

possibility that terrorists would hijack a plane and use it as a

weapon.’’ Although this report was finished in August, the administration didn’t release it until January 28, 2005. They said they

were reviewing it for security classification issues.

This became an issue for two reasons. First, the Commission report undercut previous statements by Condoleezza Rice that nobody could have predicted that terrorists would use a hijacked airplane as a missile. Second, the report was withheld until 48 hours

after she was confirmed as Secretary of State in January. This

could have been a coincidence, or it could have been a mis-use of

the classification system. We don’t know.

But I have a list of short questions, so let me get right to them.

First, you said the Justice Department asked the Transportation

Department and the FAA to review the document. Who at the Justice Department was in charge of this declassification review process?

Admiral MCMAHON. Specifically, sir, I do not know the individual

in charge. I would be happy to provide that information to you as

appropriate.

Mr. WAXMAN. Thank you very much.

Who made the final decision on what to declassify and when?

Admiral MCMAHON. Similarly, I don’t have the specific information, but we can certainly provide that for you.

Mr. WAXMAN. You said the FAA finished its review in September. Did the FAA recommend redacting any information?

Admiral MCMAHON. The FAA, under the, the FAA does not have

the authority now to do that. What the FAA did, as indicated in

my opening statement, it made some recommendations to the Department of Justice and that was it. It was actually the Department of Justice that took it from there, as I understand it.

Mr. WAXMAN. Do you know whether there were recommendations

for redactions?

Admiral MCMAHON. I am not aware of that, sir.

Mr. WAXMAN. Are there any differences in the redactions the

FAA recommended, if they did recommend some, and the final

redactions in January?

Admiral MCMAHON. I am not aware of that, sir.

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Mr. WAXMAN. The 9/11 Commission staff say they wrote this report so it could be fully declassified, like all the others, and that

the Justice Department allowed them to retain their security clearances so they could address these classification issues. Did the FAA

ever consult and negotiate with the staff of the 9/11 Commission

who wrote the report?

Admiral MCMAHON. I am not aware of that, but I will say that,

which I think is relevant, that the 9/11 Commission did note, ‘‘The

Commission found no evidence that the FAA knew or possessed intelligence indicating that bin Ladin, Al-Qaeda or Al-Qaeda affiliates or any other group were planning to hijack commercial planes

in the United States and use them as weapons.’’ That was in the

Commission report, as I understand it.

Mr. WAXMAN. Did the FAA or Justice Department ever suggest

language changes that might have avoided classification?

Admiral MCMAHON. I am aware of none.

Mr. WAXMAN. During this time, did the Transportation Department or FAA have any contact with White House officials or National Security Council officials regarding this declassification process, and if so, can you please describe these contacts?

Admiral MCMAHON. I am aware of no such contact.

Mr. WAXMAN. You said FAA recommended that Justice consult

the Department of Homeland Security. You also said that in the

summer of 2004, Justice also asked several other agencies to do

this review at the same time. Was Homeland Security left off the

original list of agencies the Justice Department originally contact?

Admiral MCMAHON. I do not have that knowledge.

Mr. WAXMAN. Do you know whether the Justice Department ever

contacted the Department of Homeland Security?

Admiral MCMAHON. No, I do not.

Mr. WAXMAN. Did the FAA have any interaction with the Department of Homeland Security?

Admiral MCMAHON. I do not believe so, sir. I’m not sure.

Mr. WAXMAN. OK. I appreciate your answers to the extent you

are able to answer these questions. If you get other information,

would you supply it to us for the record?

Admiral MCMAHON. I certainly will, sir.

Mr. WAXMAN. Thank you so much. Thank you, Mr. Chairman.

Mr. SHAYS. You have a very fine reputation, and it would be appreciated, in any of the questions that you do have knowledge of

or gain knowledge of, that you would let our subcommittee know

and we would definitely pass it on to Mr. Waxman.

Admiral MCMAHON. Yes, sir, we will certainly do that.

Mr. SHAYS. Thank you.

The Chair at this time would recognize Mr. Marchant.

Mr. MARCHANT. Admiral, how do you determine what information can be stamped SSI?

Admiral MCMAHON. There are a number of procedures and

guidelines that are spelled out, that are quite specific. In the broadest terms, as I understand it, SSI information within the Department of Transportation pertains to information that could harm the

transportation system. But it’s not necessarily a threat to national

security, per se. The next designation above that would be secret,

and that’s where it’s a national security issue.

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But more specifically, there are guidelines that we can provide

you.

Mr. MARCHANT. You mentioned just a little earlier that there

were only a couple of items now that are marked SSI or marked

secret. Are there two categories there?

Admiral MCMAHON. There are. Since we have been given the authority in May 2004, and we implemented it in January, there have

been two documents that we have designated SSI. They have gone

through our vetting process, in other words, through the mode,

through the Office of Intelligence Security and Emergency Response and through our general counsel’s office, two documents.

Mr. MARCHANT. Does the DHS have the same criteria, same procedure?

Admiral MCMAHON. As I understand it, DHS has a similar authority. How they handle it within the Department of Homeland

Security, I am not aware. Our Secretary has given us guidance on

how he wants it done and the Secretary within the Department of

Transportation.

Mr. MARCHANT. When you go up into the category of secret, are

there are lot of those documents?

Admiral MCMAHON. The secret designation, again, how you designate something secret, there are only five individuals within the

Department of Transportation that have that authority. They have

to use designations which are much more, I think, rigid.

But we don’t use that. Even though we have that authority, we

don’t really use it very often. In fact, in 2004 and 2005, there is

no document that we have designated as secret. And by the way,

one last thing on the secret, we report any secret document, as a

check, we have an office that registers that and reports it to the

National Archive Information Security Office. So there’s a check on

that as well.

Mr. MARCHANT. Do you think that DOT has reached the right

balance between protecting what needs to be protected and revealing what should be revealed?

Admiral MCMAHON. Yes, sir, I do, and I think this issue that you

mentioned is extremely important to Secretary Mineta. He has emphasized it, as you have seen in my opening testimony. The five parameters that he uses are extremely rigid. We are under pretty

strict orders to do just that.

Mr. MARCHANT. Thank you, Mr. Chairman.

Mr. SHAYS. I thank the gentleman.

At this time the Chair would recognize for 5 minutes the

gentlelady from New York, Mrs. Maloney.

Mrs. MALONEY. Thank you for your testimony. Doesn’t the example that I showed earlier on the poster boards that showed the public testimony, testimony that was given publicly, was being redacted? I think that example alone casts very serious doubts as to

the process used to redact the document in the first place, wouldn’t

you agree?

Admiral MCMAHON. Well, ma’am, I can’t really speak to the document that you’re referring to. I can only speak to what I’m familiar with within the Department of Transportation. As I just stated,

our parameters and guidelines are extremely strict.

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Mrs. MALONEY. I would assume that material that’s already

available to the public, testimony that’s been given publicly and released to the public, I would assume there would be a guideline

that public testimony that’s released to the public, part of the public record, should not be redacted. That’s just common sense.

Admiral MCMAHON. Yes, ma’am.

Mrs. MALONEY. And your very strict guidelines.

Admiral MCMAHON. And I can’t really comment on it, except to

say that again, restate what the 9/11 Commission stated that they

found no evidence that FAA had done that or had withheld information, as you indicate.

Mrs. MALONEY. If you could go back and—all right, Mr. Shays.

Mr. SHAYS. What’s helpful for us, Admiral, is you have experience in this area, so your opinion about the issue, whether it relates specifically to your own issue, would be helpful. So I mean,

I realize you want to be somewhat cautious. But we have you here

as a witness to give us your opinion about the concept.

So when I looked at that document that Mrs. Maloney had up,

it did seem absurd times 10. I would think your opinion would

have been somewhat similar, that you could qualify it. Was there

anything in that language that would have suggested it needed to

be redacted, any little thing?

Admiral MCMAHON. Mr. Chairman, I would have to—and I

would be happy to offer that, but unfortunately I don’t have enough

knowledge of that particular document to really give you I

think——

Mr. SHAYS. We were talking about that one sentence. I mean, if

anything, it was just bad English, perhaps.

Admiral MCMAHON. Sir, I would have to look at it and study it

more carefully to give you an opinion.

Mr. SHAYS. OK, well, we may have you back to do that.

At any rate, Mrs. Maloney.

Mrs. MALONEY. Here it is, right here, did the FAA redact this

sentence? Did they?

Admiral MCMAHON. I’m not aware that the FAA did redact it,

ma’am.

Mrs. MALONEY. Well, then, can you tell me who did redact it?

Admiral MCMAHON. I cannot provide that information.

Mrs. MALONEY. How can we find out?

Admiral MCMAHON. I will certainly ask our staff to look into that

for you, ma’am.

Mrs. MALONEY. Would you find out who redacted it and why they

redacted it?

Admiral MCMAHON. I would be very delighted to do that, ma’am.

Mrs. MALONEY. I don’t see how saying, we’re hearing this, this,

this and this for this organization, it was just to gain a piece of

chatter, I don’t see how that endangers national security, do you?

Admiral MCMAHON. Not what you’re highlighting, ma’am. We’ll

provide you that information.

Mrs. MALONEY. What defense could you or anyone possibly give

for the civil aviation document to be so heavily redacted? And I repeat, it was the only document that was redacted. All the others

going to the 9/11 Commission were not redacted.

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And really what we need, Mr. Chairman, in looking at this, is

we need a review board to look at the redactions. I thought the testimony of Mr. Leonard earlier, when he said the redactions had become almost ‘‘automatic,’’ and people were automatically redacting

things, it’s just very, very troubling. I’d like it answered.

I see my time is up. But were you surprised at how long it took

the civil aviation monograph to be released? Every other document

had been released, and then of course, they couldn’t release it until

after the confirmation. Why did it take so long? Do you know why

it took so much longer than all the other documents?

Admiral MCMAHON. No, ma’am, I cannot answer that.

Mrs. MALONEY. Were you surprised to see such large segments

of the report redacted?

Admiral MCMAHON. I don’t have enough specific information to

answer the question. My staff will be in touch with yours to provide whatever information we can, ma’am.

Mr. SHAYS. Let me just thank the gentlelady for her questions

and say, Admiral, you said you would come back with some information, which I know you will.

Admiral MCMAHON. Yes, Mr. Chairman.

Mr. SHAYS. I think that will be very helpful to the subcommittee.

Mr. Higgins, you have technically the floor. I technically have,

but I recognize you if you would like to yield to Mr. Waxman or—

would you like to do that?

Mr. WAXMAN. Thank you, Mr. Higgins. I wanted to ask some

questions that Congressman Van Hollen wanted asked.

Admiral MCMAHON. Yes, sir.

Mr. WAXMAN. That’s about the public statements made by

Condoleezza Rice. On May 16, 2002, Ms. Rice held a press conference at the White House to address the question of what the

Government knew before September 11th about the likelihood of a

terrorist attack. She stated, ‘‘I don’t think anybody could have predicted that these people would try to use an airplane as a missile,

a hijacked airplane as a missile.’’ This was a very significant statement coming from the President’s National Security Advisor. Presumably she would not have made it without thoroughly researching the claim first.

Admiral McMahon, you were the head of intelligence and security for the Department of Transportation, which includes the Federal Aviation Administration. Your office would have been the logical first stop for Ms. Rice. Prior to holding her press conference,

did Ms. Rice ever contact you or your predecessors to ask what the

Department of Transportation, what the FAA knew about the possibility that terrorists might use hijacked airplanes and suicide attacks?

Admiral MCMAHON. No, sir, she did not.

Mr. WAXMAN. About 3 weeks later, on April 8, 2004, Ms. Rice

testified before the 9/11 Commission, this was a rare event, a sitting National Security Advisor testifying under oath, and I’m sure

Ms. Rice did a lot of preparation before that. Yet she still maintained that, ‘‘this kind of analysis about the use of airplanes as

weapons actually was never briefed to us.’’ Between the time she

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fied before the 9/11 Commission, did Ms. Rice ever consult with

you, your predecessor or anyone else in your office?

Admiral MCMAHON. Certainly not with me, sir, and to my knowledge, no one at the Department of Transportation.

Mr. WAXMAN. Let me ask it more broadly, then. Did anyone at

the National Security Council consult with anyone in your office

before Ms. Rice made either of her public statements?

Admiral MCMAHON. To my knowledge, no.

Mr. WAXMAN. OK. Thank you very much. Thank you, Mr. Chairman.

Mr. SHAYS. Admiral, we learned in the last hearing we had, and

I’ll be happy to engage your other two colleagues in this question

as well, that we, the estimate of overclassification was between 50

and 90 percent. I want each of you to tell me as succinctly as you

can what is the negative of overclassification? I’ll start with you,

Mr. Leonard.

Mr. LEONARD. To me it’s very clear, Mr. Chairman. The negative

goes to the very integrity of the process itself. The thing that protects information is not the markings, it’s not the safes, it’s not the

alarms on elaborate skiffs, it’s people. We’re dependent on people

to exercise proper judgment and to be familiar with the rules and

to understand them and to adhere to them.

Once individuals start losing faith in the integrity of the process,

we have an uphill road in terms of having people comply.

Mr. SHAYS. Thank you. Admiral.

Admiral MCMAHON. Sir, I think this goes back to what the third

parameter that Secretary Mineta gave us in determining security

sensitive information, which was finding the right balance between

protecting what we need to protect and enabling the public to know

how its government functions. So the statement overclassifying, I

think the Secretary is addressing just that concern, let’s not overclassify, let’s be secure but balanced.

Mr. SHAYS. Mr. Relyea, you’ve been doing this kind of work for

how long?

Mr. RELYEA. Thirty-three years.

Mr. SHAYS. You’re a real expert on this issue, and it’s wonderful

to have you here. We will look forward to your testimony when we

get back from voting.

Can you just share with me the negative, the primary negative

of overclassification?

Mr. RELYEA. Probably there’s three things. I think Mr. Leonard

struck on the first point, that’s the integrity. Integrity, that’s the

first factor. If everything was classified, I think it was Potter Stewart who said it, then nothing is classified, so the system goes to

smash.

There is the factor here of today, where the system is so embedded in cold war thinking that we never envisioned what the 9/11

Commission called for, not stepping over the need to know to a

need to share. So we——

Mr. SHAYS. Can you define that difference?

Mr. RELYEA. Yes. I think it’s a big change in culture. Those who

are in the classification business, who use that as a tool, who manage it, who monitor it, this is a big change of thinking, I think, for

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them. Because in the past it was to keep things compartmentalized, not necessarily let the information flow too widely.

The third factor is a very simple one which probably many of you

on the subcommittee would be aware of in terms of your jurisdiction at full committee, and that’s cost, efficiency and economy. This

is costing a lot of money. You have to have the safes, you have to

have the clearances, top secret secret clearance today is what,

$2,500 I think, per person. It’s very expensive. So you have costs

of dollars, you have costs of integrity and you have ultimately cost

of share.

Mr. SHAYS. Thank you. In the short time I have left, I want to

know, what is, I know all the powers that want us to classify, in

other words, all the pressures to classify from bad language, to not

being embarrassed to real needs and so on. But what I want to

know is, what is the pressure to not overclassify? I mean, it just

seems to me we don’t have a proper balance. There is everything

stacked against just having a balance. I’d like, maybe I’ll have you

start, Mr. Relyea.

Mr. RELYEA. I think you’re right, if you ingrain in a person that

their whole job is to manage something that’s classified, it’s an

available tool that you don’t think too much about, because you

lean on the side of protection, which was certainly there in the

Reagan Executive order. There’s not much of a break. You can talk

about people challenging it, I don’t think that happens very often

in the system. You can have an oversight body, such as Mr. Leonard has, but it’s limited in terms of its resources, I think, and how

far it can get in terms of stopping this type of phenomenon and

how you stop it.

Mr. SHAYS. Admiral.

Admiral MCMAHON. Sir, I think that we at the Department of

Transportation are certainly cognizant of the fact that DHS is responsible for transportation security. But that said, transportation

security is on our mind, too. So again, I think we need to strike

a balance between trying to do what we can do to protect the security of the transportation system and enable the public to have the

right to know how its Government is working. Again, I think Secretary Mineta has given us extremely strict parameters on doing

just that. The fact that we don’t classify a lot of documents, that

we have none on the secret level in 2004–2005 and only two security sensitive documents in the last several months since we’ve had

the authority I think speaks to that.

Mr. SHAYS. And the value of that is you certainly know how to

protect the few that you do have.

Admiral MCMAHON. Yes, sir.

Mr. SHAYS. Mr. Leonard.

Mr. LEONARD. Part of the challenge is that I think the whole

premise is set up on the basis of a false dichotomy, and that is, I

need to protect this information, because its disclosure would damage national security. But there is the problem that often times,

the withholding or the hoarding of the information can similarly

damage the national interest. I don’t like the word, but I’ll use it

anyhow, it’s literally a cultural shift, a frame of mind that needs

to occur in order to get that recognition that the act of withholding

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can be just as damaging if not even sometimes more damaging

than the disclosure of information.

Mr. SHAYS. Thank you. We have about 5 more minutes, Mr. Van

Hollen, would someone check the TV? We’re going to adjourn, Admiral, you’re going to have a meeting at the White House, so you’re

not coming back. We’ll start with Mr. Relyea, your statement, and

we have some more questions.

Thank you very much. We stand adjourned.

[Recess.]

Mr. SHAYS. Mr. Relyea, we are now back in session and we would

love to hear your statement. Thank you very much. Mr. Relyea, you

have the floor for your statement and thank you for your patience.

STATEMENT OF HAROLD C. RELYEA

Mr. RELYEA. Mr. Chairman, members of the subcommittee, there

can be little doubt at this late date that the terrorist attacks of

September 11, 2001 have prompted rethinking and continuing concern about various aspects of the internal security, that is the

homeland security, of the United States, not the least of which includes the public availability of information of potential value to

terrorists for either the commission of their acts or for warning

them of ways of their being detected.

Often times it has not been clear to what extent if any an attempt was made to weigh citizen needs for information vis-a-vis denying its availability to terrorists, or if thoughtful consideration

was given to alternative limits short of total restriction. Recently,

a December 2004 report from the Heritage Foundation observed,

‘‘at the very least, such wholesale withdrawal of information seems

arbitrary and undermines important values of Government openness, the development of electronic Government to speed the delivery and lower the costs of Government services and public trust.’’

A primary tool for protecting information in the post-September

11 environment is security classification. One may not agree with

all of its rules and requirements, but that is an expression of policy

and procedure. Its attention to detail is commendable. The operative Presidential Directive, Executive Order 12958, as amended, for

instance, defines its principal terms, exclusive categories of classifiable information are specified, as are the terms of the duration of

classification as well as classification prohibitions and limitations.

Classified information is required to be marked appropriately,

along with the identity of the original classifier, the agency or office

of origin, and a date or event for declassification.

Authorized holders of classified information who believe that its

protected status is improper are encouraged and expected to challenge that status through prescribed arrangements. Mandatory declassification reviews are also authorized to determine if protected

records merit continued classification at their present level, a lower

level or at all. An information security oversight office provides

central management and oversight of the security classification

program.

Not long ago, in the closing days of January, GCN Update, the

online electronic news service of Government Computer News, reported that dozens of classified Homeland Security Department

documents had been accidentally made available on a public InterVerDate 11-MAY-2000 08:44 Jun 07, 2005 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6633 D:\DOCS\20922.TXT HGOVREF1 PsN: HGOVREF1
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net site for several days due to an apparent security glitch at the

Department of Energy. Describing the contents to the compromised

materials and the reactions to the breach, the account stated, ‘‘The

documents were marked for official use only, the lowest secret level

classification.’’ The documents, of course, were not security classified, because the marking cited is not authorized by Executive

Order 12958.

Interestingly, however, in view of the fact that this mis-interpretation appeared in a story to which three reporters contributed,

perhaps it reflects to some extent the current state of confusion

about the origin and status of various information control markings

which have appeared of late. However, as my prepared remarks indicate, such markings are not new. Over three decades ago, another subcommittee of the Committee on Government Reform,

known then as the Committee on Government Operations, explored

these markings and the difficulties they created. Those difficulties

are again with us today.

Analyses by the Jason Program office of the Mitre Corp., the

Heritage Foundation and the Federal Research Division of the Library of Congress have decried the introduction of the undefined

sensitive but unclassified marking and other such labels. Assessments of the variety and management of current information control markings, other than those prescribed for security classifications, are underway at CRS and the Government Accountability Office. Early indications are that very little of the attention to detail

that attends the security classification program is to be found in

other information control marking activities. Key terms often lack

definition. Vagueness exists regarding who is authorized to apply

markings, for what reasons and for how long. Uncertainty prevails

concerning who is authorized to remove the markings and for what

reasons.

Options to remedy the situation might include a circumscribed

and particularized legislative authorization for some such marking

or markings, or a legislative limitation or restriction of the use of

such markings. These choices of course are open to discussion.

Thank you for your attention, and I welcome your questions.

[The prepared statement of Mr. Relyea follows:]

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Mr. SHAYS. Thank you very much.

We’re just going to start over again, if any of the Members have

questions for Mr. Leonard or Mr. Relyea. I would just ask, I am

unclear, and I want a little bit more explanation, I have heard your

testimony which says we have a process in place to know when to

classify and know when not to, we have rules and we have a process. But what I’m not hearing is, if it’s balanced, and if it really

can work well. Because I don’t think it’s working well now. So I

guess my first question is, I made an assumption from your testimony that it is not working well. Is that a correct assumption, Mr.

Leonard?

Mr. LEONARD. Yes, sir.

Mr. SHAYS. Mr. Relyea.

Mr. RELYEA. I think so, too.

Mr. SHAYS. So the issue, I want to know, one of the challenges,

and I say this with no reluctance, I don’t think the House of Representatives has done the proper job of oversight of the administration. I actually think it hurts the administration. I think had we

been to Iraq more often, had someone been in Abu Ghraib, a Member, someone would have come to them and said, you know, bad

things are happening here, you need to check it out, questions

would have been asked, there would have been a lot more focus

and we could have nipped it in the bud. That’s what I think.

So I think that information that is needed by someone is never

going to be seen by them. I also think that when you have so much

information, besides the cost that you point out, Mr. Relyea, you

end up with just so much to keep track of that it’s just a waste of

time as well as money. So I want to know what you think could

bring balance to the system.

Mr. RELYEA. One consideration that I would offer, and Mr. Leonard may not appreciate my offering this, I think his office, his oversight unit is understaffed. I think a model that might be looked at,

or an arrangement that might be looked at is not unlike the budget

officers that OMB has. Perhaps ISOO, his unit, would benefit from

having in their employ as their arm into the agencies some type

of classification officer who would be more the arm of ISOO than

it would be an employee of the agency.

Mr. SHAYS. Mr. Leonard.

Mr. LEONARD. As I mentioned in my testimony, Mr. Chairman,

fundamentally, as the current framework is set up, the decision to

classify is an act of judgment. Like so many other things in life,

when it comes to judgment, people sometimes do not exercise good

judgment or don’t take the time to be discerning.

Mr. SHAYS. I think it goes more than that, from your testimony,

that there’s actually incentives to classify that may be logical based

on those incentives.

Mr. LEONARD. Quite frankly, very few incentives not to classify.

Two comments that I continually get in this area is, Leonard, don’t

you know we’re at war, and we don’t have time for your administrative niceties. The other statement that always drives me up a

wall is, well, you know, we always want to error on the side of caution. I’m always dumbfounded by the very notion of somehow,

somebody having error as part of an implementation strategy. It

just strikes me as bizarre.

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But yet, and I understand where people are coming from. In

Homeland Security, folks are working at absolutely, unbelievable

ops tempos. It’s been for years. I can really sympathize with the

pressures that they’re under and that sometimes, you know, maybe

I don’t have the time or the inclination to step back and do it right.

But on the other hand, my reply always is, if we’re ever going to

get it right, I would like to think when we’re at war is when we’re

going to get it right.

Mr. SHAYS. That’s a good point, but I would love to know what

the incentives are to have it be more balanced. So just think about

it a little longer and just let me finish by asking, what is the status

of the Public Interest Declassification Board, Mr. Relyea?

Mr. RELYEA. If memory serves me correctly——

Mr. SHAYS. Excuse me. It should be Mr. Leonard I should start

with. I apologize.

Mr. LEONARD. Yes, sir. We have the Public Interest Declassification Board, and as you are aware, iy was extended by the Intel Reform Act last December. It provides for nine members, five appointed by the President, four by the congressional leadership. The

President appointed his five members last August-September.

There is one congressional representative appointed, the House Minority Leader appointed her a member. My understanding is other

appointments are under consideration.

The board has yet to meet. The biggest obstacle we are encountering right now is the board was a victim of I guess unfortunate

timing, in that it was scheduled to sunset in December of last year,

and therefore, there were no provisions for it in either the 2005 or

the 2006 budget. It was literally extended at the last minute, December of last year.

Mr. SHAYS. So there’s no money for them?

Mr. LEONARD. There’s no money for it, but I am confident there

are ongoing efforts right now to identify money in both 2005 and

2006 to fund this.

Mr. SHAYS. What impact can the Public Interest Declassification

Board have on classification and declassification policies and practices?

Mr. LEONARD. Profound. One of the most profound is one of the

provisions that was added as a result of the Intel Reform Act, and

that is that the board can now hear appeals from committees of the

Congress when there are concerns or disputes about the appropriateness of classification, and they can make a recommendation

to the President as to the continued appropriateness of classification. I think that’s a very profound addition to the provision.

Mr. SHAYS. OK. Thank you.

Mr. Waxman.

Mr. WAXMAN. Thank you, Mr. Chairman.

Mr. Leonard, I know you specialize in classified information, but

I would like to get your impressions about the withholding of unclassified, confidential business information. Let’s just use a hypothetical. Suppose a Government agency conducts an audit of a Government contract and suppose those auditors issue a report concluding that the contractor has grossly overcharged the Government for goods or services. In your experience, have you ever seen

a case in which the administration has withheld as proprietary

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business information the actual amount a company has overcharged?

Mr. LEONARD. First of all, Mr. Waxman, you are right, this is beyond my area of expertise. But to answer your specific question, no,

I have never encountered that.

Mr. WAXMAN. Would such a withholding be appropriate, in your

opinion?

Mr. LEONARD. I would be hard pressed to readily come up with

a rationale.

Mr. WAXMAN. Let me turn to a slightly different issue. Under Executive Order 12600, when there is a request for a document under

the Freedom of Information Act, the Government must allow contractors to designate information in that document as confidential

commercial information. Would you agree that regardless of what

information a contractor believes should be withheld, a Government agency has an independent duty to make its own determination?

Mr. LEONARD. Again, beyond my area of expertise, but yes, my

understanding would be it should be more than just an assertion.

Mr. WAXMAN. So it would be inappropriate, in your view, for an

agency to simply abdicate its responsibility to make its own assessment?

Mr. LEONARD. Yes, I do.

Mr. WAXMAN. One last question, Mr. Leonard. If a contractor

merely disagrees with the Government auditor’s conclusion, that

alone wouldn’t be a valid reason to redact the auditor’s findings,

would it?

Mr. LEONARD. Not from my experience.

Mr. WAXMAN. Mr. Relyea, do you agree with Mr. Leonard’s answers to my questions?

Mr. RELYEA. Yes, I would tend to agree, particularly where, your

next to last question, it strikes me that where an agency is just accepting what a contractor is saying is proprietary, it’s going to create difficulties for the ultimate defense of that type of case, if it’s

an FOIA case and it is going to court. What does the agency say,

this guy told me this is the answer? It’s a terrible abrogation of responsibility.

Mr. WAXMAN. About that first question, about not——

Mr. RELYEA. The dollar amount?

Mr. WAXMAN. Yes, not giving a dollar amount where there is a

question of overcharging. Do you think that is proprietary?

Mr. RELYEA. It’s hardly proprietary information. It’s disclosable,

it seems to me.

Mr. WAXMAN. OK. And you’ve had knowledge of this whole area?

Mr. RELYEA. Of the FOIA Act, yes, I’ve worked with it extensively over the years.

Mr. WAXMAN. Thank you, thank you both.

Mr. SHAYS. They are both qualified experts in this issue.

Mr. WAXMAN. Mr. Leonard was a little modest.

Mr. SHAYS. They are both.

Mrs. Maloney.

Mrs. MALONEY. In the interest of time, I can call them later or

talk to them. Other people, Richard Ben-Veniste told me he has to

leave, too.

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Mr. SHAYS. Sure. Are there any closing comments either of you

would like to make?

Mr. RELYEA. I have one comment I’d like to make. As I mentioned in my statement, somewhere with these pseudo-classification markings we probably are looking for some type of legislative

solution. One I would ask you to think about is creating legislatively the situation where the implementation or use of these labels

could not be accomplished using appropriated funds unless authorized. So you turn the situation around to the agencies and you say,

if you’re going to use these labels, you have to get our approval.

Mr. SHAYS. These labels being?

Mr. RELYEA. Any of these pseudo markings.

Mr. SHAYS. Sensitive but unclassified? Sensitive homeland security information, for official use only?

Mr. RELYEA. Correct. So as they come back to try to get an authorization to use appropriated funds to use these things, then you

put a management platform under them. You get a common term,

you get an understanding of how they will be used, who will use

them, how long. It may be a way of working this problem through.

Mr. SHAYS. Thank you very much. Mr. Leonard.

Mr. LEONARD. Yes, sir. On that point, I would make two observations. No. 1, both dealing with the plethora of sensitive but unclassified regimes, I may not be the brightest person around, especially

if you listen to my wife, that’s an accurate description. [Laughter.]

But even I, of average intellect, have a hard time keeping track

and understanding and knowing all the ins and outs of all the various regimes out there. It’s just literally impossible to understand

all the rules and the nuances and the difference. When I think of

the operators out there who have to take all this information and

compile it and assemble it and do something with it and disseminate it, my heart really goes out to them in terms of, how do they

understand or how do they know what’s right and what’s wrong.

My concern is that people always default then in uncertainty to

withhold.

The second thing is the tremendous impact this has on our ability to leverage information technology. The ability to assemble and

collate and analyze and data mine and disseminate information

and to use technology to do that is severely restricted by these

again plethora of caveats in terms of how different information is

handled and identified. I think that impact is very significant in

terms of our efficiency in this area.

Mr. SHAYS. Great. Thank you both very much. We appreciate

your patience with the subcommittee and obviously appreciate your

testimony in response to our questions. Thank you.

At this time, the Chair would welcome our second panelist, Mr.

Richard Ben-Veniste, and thank him for his patience in waiting to

testify. You might stay standing, because as you know, we swear

in our witnesses.

Please raise your right hand.

[Witness sworn.]

Mr. SHAYS. Thank you. It’s wonderful to have you once again before our subcommittee, especially since we have taken care of some

of your recommendations on the 9/11 Commission. Thank you for

all your good work.

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Mr. WAXMAN. Mr. Chairman, I think modesty is not appropriate

when we talk about the exemplary service that Mr. Ben-Veniste

gave to the 9/11 Commission, and the role that you and Mrs.

Maloney played in pushing that legislation forward to a good conclusion. It’s something that those of us who supported your efforts

are quite proud of.

Mr. SHAYS. Thank you very much, Mr. Waxman. It was a team

effort, and it’s nice to be part of a good team.

I would say that any time I link up with Mrs. Maloney, I seem

to get things done. So Mr. Ben-Veniste, nice to have you here.

STATEMENT OF RICHARD BEN-VENISTE, COMMISSIONER, NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE

UNITED STATES

Mr. BEN-VENISTE. Chairman Shays, members of the Subcommittee on National Security, thank you for the privilege of appearing

before you today to testify on the subject of emerging threats, overclassification and pseudo-classification.

I would like to address my remarks to three separate topics.

First, the recommendations of the 9/11 Commission as they relate

to the question of overclassification; second, the experience of the

9/11 Commission with respect to declassification of its final report;

and third, the experience of the Commission, now former Commission, with respect to the staff report submitted to the administration for declassification. That report, entitled, ‘‘The Four Flights

and Civil Aviation Security,’’ was submitted to the administration

on the last day of the Commission’s existence, August 21, 2004.

Let me start with the recommendations of the 9/11 Commission

with respect to classification. All Commissioners understand the

need to know principle and its importance. That principle exists for

good reason: the need to protect sources and methods of intelligence. The Commission found, however, that the failure to share

information was the single most important reason why the U.S.

Government failed to detect and disrupt the September 11 plot.

There were bits and pieces of critical information available in different parts of the Government, in the CIA, the FBI, and the NSA.

Some of the bits were bigger than others. But pieces of the information were never shared and never put together in time to understand the September 11 plot.

We cannot say for certain that the sharing of information would

have succeeded in disrupting the plot. No one can. But we can

know for certain that the failure to share information contributed

to the Government’s failure to interrupt the plot. The failure to

share information may have cost lives. We paid a terrible price on

September 11th because too much information was kept secret or

otherwise not shared.

Within the intelligence community, there are two basic reasons

why information is not shared. First, the intelligence community is

a collection of fiefdoms, 15 separate agencies. They have separate

cultures. They desire to protect their own turf. They distrust the

ability of their counterparts to protect information and they design

their computers so that they cannot transmit data easily from one

agency to another.

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Second, information is not shared because of the need to know

principle. I want to underscore again, all Commissioners understood the importance of protecting sources and methods. But the

need to know principle also results in too much classification and

too much compartmentalization of information. Not only do we end

up keeping secrets from the enemy, but we end up keeping secrets

from ourselves. Timely information does not get to the analyst and

to the policymaker. Important information is denied the American

people.

Mr. Chairman, the chief reason the 9/11 Commission recommended the creation of a director of national intelligence was so

that someone could smash the stovepipes in order to demand the

sharing of information and force cooperation across the intelligence

community. We want one individual in charge of information technology to unclog the arteries of information sharing across the intelligence community. We want one individual in charge of security

rules and one set of rules for security, so that as much information

as possible flows to analysts, policymakers and those on the front

lines with security responsibilities.

We want to make sure that the President gets the information

he needs to do the job, and so does the border inspector and so does

the cop on the beat. Information has to flow more freely. Much

more information needs to be declassified. A great deal of information should never be classified at all.

Mr. Chairman, my personal view is that an unconscionable culture of secrecy has grown up in our Nation since the cold war. Secrecy has often acted as the handmaiden of complacency, arrogance

and incompetence. Senator Pat Moynihan, a passionate opponent of

unnecessary secrecy in Government, called for the creation of a

counter-culture of openness, a climate which simply assumes that

secrecy is not the starting place. It is time we heeded that call.

The Nazi War Crimes Disclosure Act, signed by President Clinton in 1998, created an interagency working group to implement

the act’s mandate of declassifying documents relating to World War

II war crimes and their perpetrators, still kept secret by our Government. As one of three non-governmental members of the IWG

appointed by President Clinton, I have had direct experience with

the difficulties of getting public release of records stamped secret.

So far, over 8 million pages of previously classified documents have

been released. National security has not been jeopardized. Yet but

for this act, these records would still be secret.

Recently, despite the fact that relevant records are in some cases

more than 50 years old, the CIA balked at full compliance with the

act, causing a delay of more than a year in the IWG’s work. Finally, to break the impasse, the IWG had to seek congressional

intervention. The act’s authors, Senator Mike DeWine and Representative Carolyn Maloney, rejected the CIA’s argument for withholding important documents in a meeting with CIA and IWG officials. Ultimately the CIA abandoned its opposition and has now

promised to comply.

The Senate recently passed a bill authorizing a 2-year extension

of the IWG, which is scheduled to expire at the end of this month.

The House has not yet acted.

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Let me return to the Commission’s experience with declassification. Mr. Chairman, the 9/11 Commission, had many challenges in

gaining access to highly classified and sensitive material it needed

to conduct its investigation and complete its work. We had a number of differences with the executive branch on questions of access.

You are familiar with many of them, and I will not recount them

in detail. Suffice it to say, with strong support from the American

public, and from many Members of Congress, the Commission

eventually gained access to documents and witnesses it needed to

conduct its work.

The Commission has had similar challenges in the declassification review process. We saw it as our obligation to make as much

information available to the American public in as timely a fashion

as possible. Within the administration, there are different voices.

Clearly, some individuals and agencies wanted to block the release

of material. Because our bipartisan Commission spoke with a consistently unanimous voice on the issue of transparency, we were

able to overcome those objections and move forward.

Beginning with the Commission staff statements, we developed

a process where a White House designated point of contact coordinated the review and declassification of the Commission’s written

product. Eventually, our point of contact became Dan Levin, then

at the Justice Department, who did an exemplary job. He kept the

agencies on tight deadlines, and worked with us to solve problems

and keep the process on track. Lawyers from the White House

Counsel’s office also worked hard to solve issues in the pre-publication review process. Solving problems in most cases meant modest

word changes and minor massaging of the text.

The staff statements were in large measure the building blocks

for the final report. The process we established for declassification

of the staff statements helped us immensely in the declassification

review of the Commission’s final report.

We are very proud to say that the final report of the Commission

was issued without a single redaction. There was not a single paragraph, not a single sentence blacked out from what we believed we

needed to say to tell the full story of September 11 to the American

public. We commend the administration for recognizing that a critical component for enhancing national security was to tell the story

of September 11 completely and credibly. The 9/11 Commission report without redactions helped to win the public’s interest and the

public’s confidence. The integrity of the report helped our Government and Nation move forward with the reform bill signed into law

by the President last December.

Let me address the staff report on the four flights and the civil

aviation issue of civil aviation security. The Commission also had

good experience with the administration in the completion of two

staff reports on terrorist finance and terrorist travel that were

issued without redactions on the last day of the Commission’s existence, August 21, 2004. On the last day of its existence, the Commission also submitted its third and final staff report to the administration for declassification review. That staff report was entitled,

‘‘The Four Flights and Civil Aviation Security.’’

As in the case of the other two reports, it provides a wealth of

additional detail in support of the facts and conclusions in the

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Commission’s final report. As the Commission’s general counsel

made clear to the administration at the time of the staff report’s

submission, he and several staff retained their security clearances

even after the end of the life of the Commission. Thus, in our view,

staff still should have been able to work with the administration

to address any concerns about classification in a mutually satisfactory manner, so that this staff report, like the two previous staff

reports, could be issued without redactions.

As this process had worked so well previously, we did not anticipate that it would not be utilized with respect to the final report.

We cannot say with certainty why the declassification review of

this last staff report took so long and why the outcome was so unsatisfactory. Part of the answer is that the administration decided

it could no longer negotiate with former Commission staff, including the office of the staff report, because they became private citizens after August 21st. The administration refused to engage

former Commission staff or commissioners in dialog about the declassification process. In the absence of a dialog and pressure from

an existing commission, the declassification process took an inordinate amount of time and produced an unsatisfactory result.

What we find especially troubling about the redactions in this

last staff report is that most of them relate to material known as

sensitive security information [SSI], under the control of the Federal Aviation Administration before September 11 and under the

control of the Transportation Security Administration today. There

is little material in this last staff report from the intelligence community. So we have the remarkable situation that the Nation’s

most highly classified secrets, those that relate to NSA intercepts

and covert action, and those that go into the President’s daily brief,

got declassified and put in a public report, read now by millions of

people.

In contrast, far less sensitive material in this last staff report got

blacked out or replaced with blank pages. Indeed, one redaction deletes a sentence from public testimony in a hearing before the 9/

11 Commission. Some of the redactions, that’s at page 56, if you

care to check that monograph. Some of the redactions relate to the

performance of airport security checkpoints and equipment before

September 11. We believe that the public needs to know what the

Commission staff wrote about checkpoint performance. Some of the

redactions relate to security warnings associated with FAA notices

to the airlines leading up to September 11. We believe the public

needs to know the nature of those warnings.

Some of the redactions relate to a description of the FAA’s nofly list and criticism of how it was administered. We believe the

public needs to know the nature of that criticism. We do not believe

these redactions are justified, because they concern a civil aviation

system that no longer exists. That system is gone forever. We see

no public purpose served in keeping its flaws hidden. Those flaws

certainly were apparent to the hijackers. The American people

should know them in full as well.

These redactions are a disservice to the September 11 families,

to the Commission and to the Nation. They deprive the public of

the information it deserves. They stoke the fires of public cynicism.

Redactions feed conspiracy theories and undermine confidence.

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This is the very reason why we employed our open hearings, that

we were transparent not only in our staff reports, but in talking

about what was in them publicly. We wanted to avoid the mistakes

of past commissions, where conspiracy theories grew up and still

persist.

So we tried to be as transparent as possible in doing our work.

Redactions inevitably lead to questions. What won’t our leaders tell

us? What won’t they allow us to know? Redactions serve neither

the public interest nor the cause of truth.

Mr. Chairman, let me conclude by saying that the Public Discourse Project, the not-for-profit organization of which of the September 11 commissioners is a member, has offered a simple and

constructive proposal with respect to this last staff report. If the

administration were willing to meet with former Commission staff,

including those who drafted this report, we’re confident that a report without redactions could be reproduced in short order. Such a

proposal was made to the White House in writing, and to date it

has not been accepted.

Such a report with integrity and credibility is exactly the kind

of report that the American Government should produce and the

kind of report that the American public deserves.

Thank you very much, and thank you for your kind remarks. I

would be pleased to answer any questions you may have.

[The prepared statement of Mr. Ben-Veniste follows:]

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Mr. SHAYS. Mr. Ben-Veniste, thank you very much. We are going

to start out with Mr. Waxman.

Mr. WAXMAN. Mr. Ben-Veniste, thank you for your excellent

statement here today and again, for your exemplary service on the

9/11 Commission.

I would like to start with the process the administration went

through to declassify the final 9/11 Commission staff report. Your

testimony is that the administration refused to consult with 9/11

Commission staff about the redactions, that it took an inordinate

amount of time and that it produced an unsatisfactory result.

Let me start with the failure to work with the September 11

staff. The administration allowed September 11 staff to keep their

security clearance, isn’t that correct?

Mr. BEN-VENISTE. Yes, some of those clearances are kept for

other reasons and had been in existence prior to the creation of the

Commission.

Mr. WAXMAN. So let me get a clarification. If the administration

permitted them to retain their security clearances, why does it

matter whether they were employees or not? Why did the administration refuse to consult them about these redactions?

Mr. BEN-VENISTE. In my view, there is no rationale in that regard.

Mr. WAXMAN. Well, that’s pretty straight-forward.

Mr. BEN-VENISTE. I try to be, Mr. Waxman.

Mr. WAXMAN. On the timing question, you may have heard Admiral McMahon in our first panel, the head of security and intelligence for the Transportation Department, say that the FAA actually completed its review in September. Did that surprise you?

Mr. BEN-VENISTE. Yes, it did, sir.

Mr. WAXMAN. Do you have any information about why the report

was delayed from September until January?

Mr. BEN-VENISTE. I do not.

Mr. WAXMAN. Although this hearing has produced some information, we now have more new questions than answers. I think we

will have to pursue this issue further. Who do you recommend the

committee talk to for additional information about this declassification process? Officials at the White House and the Justice Department?

Mr. BEN-VENISTE. Yes, Mr. Waxman, I think the three areas are

the TSA, the Justice Department and White House counsel’s office.

Mr. WAXMAN. Are there any specific documents you believe the

committee should specifically request?

Mr. BEN-VENISTE. There are memoranda discussing why this material has been redacted, why it has taken so long. Clearly there

has been substantial public interest, by the New York Times and

other important publications. And of course, through a hearing like

this, which generates appropriate additional public interest. There

should be some traffic among the agencies to ask the logical question of what the heck took so long and why.

Mr. WAXMAN. Mr. Chairman, I think what Mr. Ben-Veniste suggests makes a lot of sense. I would like to propose that the subcommittee interview these people and request these documents. We

can discuss this further.

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Mr. SHAYS. The committee would be happy to do that, and we

would be happy to work with your staff to have that happen.

Mr. WAXMAN. Thank you.

Commissioner Ben-Veniste, Condoleezza Rice testified before the

9/11 Commission on April 8, 2004.

Mr. BEN-VENISTE. I remember that.

Mr. WAXMAN. I would like to ask you about the circumstances

surrounding her testimony. First, I remember that the White

House did not want to allow her to testify. They were very opposed

to her appearing before the Commission under oath. If I remember

correctly, the Commission’s time with Ms. Rice was very truncated.

I wonder if you would be able to describe for us the background on

that, what was happening behind the scenes?

Mr. BEN-VENISTE. Well, I can only talk about what was happening behind our scene. Obviously we felt that Dr. Rice’s testimony

would be very important. You may recall that Dr. Rice had characterized certain elements of what became her testimony in public

statements in various venues prior to the time that she testified.

We felt that it was more than appropriate that Dr. Rice provide her

insights and recommendations to us in a public forum, since this

was the purpose of the 9/11 Commission and she was an integral

part of the history of what occurred prior to September 11. So I believe it was on the basis of the unanimous demand by this bipartisan commission that Dr. Rice appeared publicly before us, under

oath, as other witnesses had appeared, to provide an answer to

those questions.

Now, as it turned out, her testimony was scheduled for the morning of the same day during which we had already committed to

question President Clinton. So when you say truncated, I suppose

that’s what you mean. I had all of 16 minutes to question. I would

have appreciated more time, but we made do with what we had.

Mr. WAXMAN. So you didn’t feel that you had a satisfactory

amount of time to pursue all the issues you wanted to raise with

her?

Mr. BEN-VENISTE. I would have had more questions. And I probably would have been more considerate of the length of her answers, had there been more time.

Mr. WAXMAN. Good point. Her testimony came 3 weeks after she

held a press conference at the White House. There she said, ‘‘I

don’t think anybody could have predicted that these people would

try to use an airplane as a missile, a hijacked airplane as a missile.’’ But the 9/11 Commission staff report stated that the FAA

had indeed considered the possibility that terrorists would hijack

a plane and use it as a weapon.

Given the Commission’s findings, were you concerned that perhaps her statements were not based on a thorough review of the

subject?

Mr. BEN-VENISTE. Well, it’s not just the FAA, Mr. Waxman, but

within the intelligence community as we had pointed out repeatedly in public hearings and certainly in our final report in various

portions of the report, the intelligence community was aware that

on perhaps 10 separate occasions involving various plots, some of

them interrupted in various stages of preparation, that terrorists

were planning to use planes as weapons. One such plot involved

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crashing a plane into CIA headquarters. Another plot involved

crashing a plane into the Eiffel Tower. We know that someone

crashed a plane onto the White House lawn.

This was not something which required anybody to do a great

deal of research on. It seemed to us at the time, particularly one

familiar with the intelligence apparatus of the United States. I can

point to the fact that just prior to September 11, in an overseas

conference in Italy we took measures to protect against the use of

suicide aircraft flying into buildings at that conference, which of

course President Bush attended.

Mr. WAXMAN. When she testified before your Commission, however, she sort of backed off her previous statement and said, this

kind of analysis about the use of airplanes as weapons actually was

never briefed to us. Were you surprised that she still hadn’t been

briefed on these FAA warnings by April 2004, 21⁄2 years after the

September 11th attacks?

Mr. BEN-VENISTE. I was disappointed, Mr. Waxman. I have a

very high threshold for surprise, having operated here in the Nation’s Capital for many decades now.

Mr. WAXMAN. She was a National Security Advisor, it was her

job to get all the information so she could present it to the President. She had others telling her there was a great deal of urgency,

particularly Richard Clarke, that there was a great deal of urgency

about Al-Qaeda. You said all these CIA reports and FAA reports

were being issued. Yet she wasn’t being briefed on it.

Mr. BEN-VENISTE. In our report, we point out that Dr. Rice

viewed her function as National Security Advisor in a way somewhat differently than her predecessor, Sandy Berger, in terms of

her responsibility for the domestic threats posed by terrorists. Perhaps the next time you have the opportunity to question Dr. Rice,

you might ask her about that.

Mr. WAXMAN. She may have viewed her role differently, but she

made all the public statements on behalf of the administration,

pretty much suggesting that she had this very clear role of developing the policy.

I thank you for your answers to these questions. Thank you, Mr.

Chairman.

Mr. SHAYS. I thank the gentleman for his questions and for your

responses.

I think one of the important points of the 9/11 Commission was

a very clear finding that there were breakdowns in the previous administration, there were breakdowns in the present administration.

Had either administration done better or Congress, or had the intelligence community done its better job, any one of those doing

better might have changed the outcome. Do you think that’s an unfair analysis?

Mr. BEN-VENISTE. I think that there is a mistake in apportioning

responsibility in that sort of equivalence. The agencies and individuals who had greater responsibilities, certainly for protecting the

homeland. Obviously when you make a generalization, it does a

disservice to some and is more generous to others.

Mr. SHAYS. When Mr. Clarke appeared before our subcommittee

behind closed doors, it was one of the most shocking experiences

I had had. It was before September 11th, and we had by then had

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I think about 10 hearings on the terrorist threat, and we were now

meeting with the terrorist czar. We asked him what our strategy

was to deal with the terrorist threat and he said, we don’t have any

strategy.

We were so dumbfounded, his basic response was, we know who

the bad guys are and we go after them. We were so surprised by

it that the subcommittee wrote him a letter, with his response. And

we were so surprised by it that we wrote Condoleezza Rice a letter

and said, don’t hire the guy, when she took over. But we also told

Condoleezza Rice that there was a terrorist threat out there that

she needed to deal with, and we don’t think they responded to that,

either.

I would like to know what you think gives us a culture, a counterculture of openness. What do you think does that? It obviously

starts with the White House. But what are things that——

Mr. BEN-VENISTE. It doesn’t seem to be coming from the White

House, so when we say, where does it start, I think first you identify what the problem is and the problem is that for decades this

culture has existed. But for exceptions like the Nazi War Crimes

Disclosure Act, which mandates specific declassification, there is no

consequence, essentially, to those who unnecessarily withhold and

classify materials that are withheld from public inspection.

So the result of that is more and more classification, more and

more secrecy, less and less openness. Unless that trend is reversed,

if the leadership is not coming from the administration then it’s got

to come from the Congress. The press is very happy to support, I’m

quite sure, efforts toward openness. The spirit that Senator Pat

Moynihan was talking about has not yet taken hold. I think legislation is necessary, the creation of ombudsmen or classification authorities within each of the agencies that classifies material would

be a step in the right direction.

There are consequences for making mistakes and releasing information. There don’t seem to be any consequences to withholding information that should be available to the public.

Mr. SHAYS. What department did you find the most reluctant or

the most secretive and what did you find, well, which had the best

culture for openness and which had the worst?

Mr. BEN-VENISTE. You know, I don’t know—do you mean with

respect to the 9/11 Commission?

Mr. SHAYS. Yes, I guess so. In other words, when my staff has

looked at the Transportation Department, for the most part they

think they have a pretty good policy and practice, for the most

part.

Mr. BEN-VENISTE. Part of that depends on making the distinction

between who talks the talk and who walks the walk, Mr. Chairman. People may make very soothing noises about cooperation and

releasing material and providing them. But until you get down in

the weeds and see what’s actually produced——

Mr. SHAYS. Well, are you capable of answering the question of,

did you have enough interaction with enough agencies to find out

anything? Usually you would say, you know, these guys are being

a lot more cooperative than this group.

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ciated. And other places we had to employ a blowtorch and a pair

of pliers.

Mr. SHAYS. Thank you. That’s helpful.

Mrs. Maloney.

Mrs. MALONEY. I just would like to join with my colleagues in

congratulating you on the extraordinary job you and the other commissioners did with the 9/11 Commission report. Really one of my

happiest days was the day the President signed the intelligence bill

into law. It would not have happened without your dedicated commitment. Also your work on the Nazi War Crimes Disclosure Act,

which is continuing, as we are pushing to get an extension to compete the work. So we thank you for your work.

Mr. BEN-VENISTE. Thank you.

Mrs. MALONEY. What defense could you possibly give for the civil

aviation document to be so heavily redacted? Do you have any understanding? As I understand, it was the only document that was

redacted. Is that true? That’s what I read.

Mr. BEN-VENISTE. Substantially yes. There were discussions but

there were minor revisions made, and our staff reports, the two

other ones that were released, what we call the staff monographs,

which are far more detailed expositions of facts that are contained

in more summary fashion in some cases than our final report. But

that is correct. So if you are asking me to put on my hat as a defense lawyer rather than an observer and an advocate for openness,

I would have to plead ignorance on that point.

I went through, in my prepared remarks, a recitation of where

we feel that these redactions occurred and why we feel that they

were unwarranted in each case, including redacting a statement of

Michael Canavan in open testimony before the Commission.

Mrs. MALONEY. Exactly. Ridiculous.

Mr. BEN-VENISTE. Governor Kean and Congressman Hamilton

wrote the White House counsel, essentially pointing out the deficiencies, on February 11th, stating basically our disappointment

with the classification review process of this last staff statement

and offering again to work together with them with our staff.

White House counsel responded on March 1st, saying essentially

that they had sent the report back to the DOJ——

Mr. SHAYS. We will put that letter into the record.

Mr. BEN-VENISTE. We can do that. We can make both the February 11 and March 1 letters available.

Mr. SHAYS. We will put them both into the record.

[The information referred to follows:]

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Mrs. MALONEY. Thank you.

I would like to ask you about Sibel Edmonds. As you know, the

former FBI translator, Ms. Edmonds, is going to be testifying

today. The Commission also had a chance to interview her, as well

as to raise her case before FBI Director Mueller, when you met

with him. The Justice Department Inspector General recently released its report on her allegations, finding that they were credible

and supported by other witnesses and evidence.

I would like to ask you, Mr. Ben-Veniste, did the Commission

also find her to be credible?

Mr. BEN-VENISTE. Well, I can’t speak for the Commission on

that, Mrs. Maloney, because that was something where the Commission made a determination that her assertions were under active investigation by the IG’s office. I think Mr. Fein has done extraordinary service to this country in the work he has performed

over time as Inspector General of the Department of Justice and

I have no reason to think that his report is anything but credible

and accurate with respect to Ms. Edmonds.

Mr. SHAYS. We have 5 minutes to vote.

Mrs. MALONEY. We have to run and vote. It’s always a great

pleasure to see you and thank you again for your great service.

Mr. SHAYS. So we will close this panel, and thank you for your

testimony, Mr. Ben-Veniste. Thank you very much. We will start

with the third panel when we get back, and we are recessed.

[Recess.]

Mr. SHAYS. The Subcommittee on National Security, Emerging

Threats, International Relations is now reconvened for our hearing

on Emerging Threats, Overclassification and Pseudo-Classification.

I will introduce our three panelists. Mr. Thomas Blanton, executive director, National Security Archive, George Washington University; Mr. Harry A. Hammitt, editor and publisher, Access Reports: Freedom of Information, Lynchburg, VA; and Ms. Sibel Edmonds, former contract linguist, Federal Bureau of Investigation.

Welcome.

If you would stand, I will swear you all in, as we do in our subcommittee. Please raise your right hands.

[Witnesses sworn.]

Mr. SHAYS. Note for the record all three witnesses have responded in the affirmative. We appreciate your patience as we

begin this third panel at 4 p.m.

We’ll just start with you, Mr. Blanton, and we’ll go from there.

STATEMENTS OF THOMAS BLANTON, EXECUTIVE DIRECTOR,

NATIONAL SECURITY ARCHIVE, GEORGE WASHINGTON UNIVERSITY; HARRY A. HAMMITT, EDITOR AND PUBLISHER, ACCESS REPORTS: FREEDOM OF INFORMATION; SIBEL EDMONDS, FORMER CONTRACT LINGUIST, FEDERAL BUREAU

OF INVESTIGATION

STATEMENT OF THOMAS BLANTON

Mr. BLANTON. Thank you very much, Mr. Chairman. It is a privilege to be here with you today, also to be here in the Rayburn

Building, because Sam Rayburn is quite famous in my family for

having broken up a fist fight on the floor of the House of RepVerDate 11-MAY-2000 08:44 Jun 07, 2005 Jkt 000000 PO 00000 Frm 00113 Fmt 6633 Sfmt 6633 D:\DOCS\20922.TXT HGOVREF1 PsN: HGOVREF1
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resentatives that was started by a relative of mine, a Congressman

named Thomas Blanton of Texas. He broke up the fist fight by

picking up Tom by the scruff of the neck and pulling him away. I

just suggest, Mr. Chairman, that your subcommittee has the secrecy and the pseudo-secrecy system by the scruff of the neck. It’s

up to you to pull it away so it stops doing damage to our security.

Mr. SHAYS. Will we get a building named after us? [Laughter.]

Mr. BLANTON. I would hope so.

What I want to do today, very briefly, Mr. Chairman, is try to

diagnose the problem and offer a couple of solutions. Up on the

screen, you see this wonderful little graphic that just takes all the

data that Bill Leonard’s wonderful audit office has amassed since

its start in 1980, that’s the first time that we started counting the

number of national security secrets, the number of secrecy decisions. You can see that last year, in 2003, the number of new national security secrecy decisions broke the previous record at the

height of the cold war. What I just found out today, from your

hearing, Mr. Chairman, from Mr. Leonard, is that his new report

out at the end of the month says the new number will actually go

off this chart. Secrecy is off the charts. It will be 16.1 million, is

the latest data from 2004.

Now, two things to remember about each one of these decisions.

One is they create a stream of secrets, because through the magic

of e-mail, computers, xeroxing, copying attachments, referencing,

they actually generate far more documents than just the 14 or 16

million that are stamped. Second, they create a stream of costs out

into the future, direct costs to taxpayers. The 2003 estimate was

$6.5 billion, and that’s the unclassified number, we don’t know

what it costs from the CIA. And a stream of indirect costs in ignorance and inefficiency and inaction, like in the September 11 example.

So the question to ask is the one you asked at your August 24th

hearing. You asked how much overclassification exists. What I did

is just put into one page some of the great answers that you got.

From 50 percent, said the Pentagon’s Deputy Under Secretary of

Defense for Counter-Intelligence and Security, beyond 50 percent is

what Mr. Leonard said. Sixty percent is what the Interagency Security Classification Appeals has done, ruled for the requestor. Seventy-five percent is what Tom Kean, the chair of the 9/11 Commission said. Ninety percent was the estimate of President Reagan’s

own National Security Council Executive Secretary in quotes to the

Moynihan Commission. That’s how much overclassification, 50 to

90 percent.

Bottom line, you can sum it up, Houston, we have a problem.

The antidote to secrecy is this slide, the rise and fall of declassification. Again, these are based on the ISOO numbers, they’re based

on sampling of all the agencies that classify information or declassify. What you see here is during the cold war we had a relatively

low level of declassification running along for quite a while. In the

mid-1990’s, boom, with the reforms that were in President Clinton’s Executive order, continued by President Bush, the threat of

automatic declassification really clarifies the agency’s mind. You

had a boom, and in this period more historical national security secrets came out than from all previous Presidents put together.

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It has now plummeted. The level is still a little bit higher than

it was in the cold war, and that’s a positive sign.

The scary stuff is the stuff we can’t count. The new forms of

pseudo-classification like sensitive but unclassified, for official use

only. This is a fun little response to a Freedom of Information Act

request. It was a meeting between the Homeland Security Secretary Tom Ridge and the Pakistani Foreign Minister. This was a

briefing memo given to Secretary Ridge. It says what your purposes are in assuming that we’re going to work with the Pakistanis

and not treat Pakistanis too badly when they come into our country.

The entire background section is cut out. They could not find an

identifiable harm under national security to withhold this information. So instead, they called it sensitive but unclassified and have

used the fifth exemption to the Freedom of Information Act, the

one about deliberative process, to withhold the whole thing. This

kind of labeling is what’s proliferating inside the bureaucracy. You

see dozens of examples we’re already getting from people like the

Transportation Security Administration.

For example, this next slide is just one example from our Freedom of Information request about a circular, one of those aviation

warnings that Congresswoman Maloney and others were talking

about that are mentioned in the September 11 report. One of the

warnings before September 11, it’s an unclassified circular but it’s

withheld under SBU, withheld under sensitive information, even

though the exact quote from it was printed in the No. 1 best selling

9/11 Commission Report and in the congressional inquiry.

So the problem here is that the proliferation, which is uncounted,

unchecked, they have no rules, they have no real standards, they

have no audit agency like Mr. Leonard’s, they have no independent

review boards like Richard Ben-Veniste’s review board on the Nazi

war crimes. There’s none of the kinds of checks and balances. Our

framers were trying to change a culture in 1776. There’s a culture

of monarchy.

How do you change a culture? You set up competing centers of

power and checks and balances on all that power. If you have an

intelligence czar, you probably need a declassification czar. If you

have an agency that’s creating new labels like SBU, you need an

independent review board in that agency to look at those decisions

and push them out. That’s the only way that we’re going to get our

hands around this problem, because frankly, the bottom line, and

this is the one place in the 9/11 Commission report where they say

the attacks could have been prevented, it’s the only finding in the

entire report where they say with any amount of certainty, we

could have prevented it.

And what do they say? According to the interrogation of Ramzi

Binalshibh, the pay master of the hijackers, if the planners had

known that Moussaoui, the Minnesota flyboy, the one who only

wanted to learn to fly, not to take off or land, had been arrested,

then they would have canceled the September 11 attacks. Why is

that? Because that FBI agent out in Phoenix would have read

about in the paper, oh, another Islamic extremist arrested at the

flight schools. Let’s dig that memo I sent to Washington out of the

vault and get it around to all the field offices. Maybe the two guys

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that they had already identified being in the United States might

have shown up on the 10 most wanted list.

I mean, this is the only moment the Commission said publicity

about the arrest might have derailed the plot. Publicity. Now, publicity is not a program like the SHARE Network that you heard described in the August hearing, the Markle Foundation Report that

the 9/11 Commission bought into. I say basically that SHARE concept is not publicity, and it’s not really a challenge to the need to

know culture. It’s an expansion of the need to know culture to

cover more people. Mr. Crowell, your witness, said last summer, he

said that the network would include ‘‘the relevant players.’’

Who decides who the relevant players are? Is it the epidemiologist but not the general practitioners? Is it the power plant owners?

What about the workers? If it doesn’t include the public, if it

doesn’t push the secrets out, then it’s a system that’s not going to

work. Then we’re right back to this obsolete notion of need to know.

I have to say that I think because of this finding, the Deputy

Under Secretary of Defense was wrong when she testified before

your subcommittee last summer as well, because she said the tension here, ‘‘How much risk is the Nation willing to endure in the

quest to balance protection against the public’s desire to know?’’

That’s absolutely the wrong formulation. The lesson of September

11 is that secrecy was the problem. Secrecy destroyed our protection. Too much secrecy was the core of the unconnecting of the

dots.

The teaching is between a natural bureaucratic imperative that

spans every administration, that goes back to the dawn of bureaucracy, ancient Iraq under Hammarabi, probably. To control information, because information is power and turf and resources. Versus

how do we actually protect ourselves? Will this information if it’s

released damage us or help protect us?

The core rule of computer security in the computer security

world is, if the bug is secret, then the only people who know are

the vendor and the hacker. The larger community of users can neither protect themselves, nor offer fixes. That to me should be the

principle that we proceed with looking at all of these labels. Does

this information withholding make us safer or not? I think most of

these new labels would fail abjectly.

The question is, how do you make them fail? That’s my final

point. It’s just simply, you have to build in an independent review

board at every agency with a small staff with people like Richard

Ben-Veniste on it, asking those questions inside the agency. You

might just want to start with a pretty simple measure, ask Admiral

McMahon to count the number of sensitive but unclassified or for

official use only items created in his agency last year. He can tell

you that he created six actual national security secrets. He has to

report that number to Mr. Leonard’s office. There is a limited number of people in his agency who even have the authority to list

something as secret. Ask him to do that about the SBU and FUOU

and SSI and all these other labels, and you’ve got a start.

If you can count them, you can restrain them. If you can put a

cost on them, you can restrain them. If you can set up an independVerDate 11-MAY-2000 08:44 Jun 07, 2005 Jkt 000000 PO 00000 Frm 00116 Fmt 6633 Sfmt 6633 D:\DOCS\20922.TXT HGOVREF1 PsN: HGOVREF1
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ent power structure to push against them, you can restrain them.

If you limit the number of officials who can label them, who can

create secrets, who can create these labels and you expand the

number of officials who are releasing information, then you’ll win.

[The prepared statement of Mr. Blanton follows:]

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Mr. SHAYS. Thank you very much.

Mr. Hammitt.

STATEMENT OF HARRY A. HAMMITT

Mr. HAMMITT. Thank you.

As I have listened to the other witnesses, I thought to myself,

how much more can I say, and I said what I wanted to say in my

written testimony. So I thought I would highlight one aspect that

I don’t think has been addressed here today, that isn’t in my testimony but I hope to elucidate a little bit more.

Mr. SHAYS. And highlight anything you may disagree with.

Mr. HAMMITT. Verbally.

Mr. SHAYS. Anything in the statements earlier that you disagree

with, please feel free.

Mr. HAMMITT. OK. What I wanted to do was quickly tell the

story of how we got to where we are today in terms of critical infrastructure information as part of the Homeland Security Act. I think

that because of what happened to us on September 11th, we frequently see most of this through the lens of threats to terrorism.

But the interesting thing about this, and I think it’s kind of an

interesting object lesson here, is that the critical infrastructure information exemption was created largely in response to a program

that the EPA announced that it was going to put worst case scenario reports on the Internet for people. These worst case scenario

reports are reports that facilities that store chemicals or manufacture chemicals or various other hazardous substances are supposed

to file, talking about what would happen if there was an explosion,

say, at their facility and how many people this might impact and

how the community might be evacuated, what the safety precautions are, those sorts of things.

The EPA had concluded that under the Clean Air Act, it was required to make this as widely public as possible. When the chemical industry got wind of this, they enlisted the help of the FBI to

argue before Congress that to disclose this information as widely

as the EPA intended to do would be a potential boon for terrorists.

This was 1999, I believe, so several years before the September

11th attacks.

Congress looked at the issue at that time and basically decided

to study the issue. They told EPA not to put the information on the

Internet at that time. At the same time, Congress was also looking

at a piece of legislation to try to resolve a pressing issue which was

commonly known as Y2K. In this issue, people were worried that

computer software might not be able to understand when the calendar moved from 1999 to 2000 and there might be all sorts of deleterious problems caused by that.

In order to get industry to talk about this issue to the Government, Congress passed Y2K legislation which allowed industry to

disclose some of this information to relevant Government authorities, but be protected, because the disclosure would not be made

public and they would also be protected from liability. When Congress turned to the critical infrastructure information type of exemption, they looked at this Y2K exemption as a possible starting

point. Indeed, this is basically the embodiment of this policy that’s

in the Homeland Security Act.

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So I guess what I wanted to say about this is, we have an exemption where voluntarily submitted critical information about

vulnerabilities in the private sector is given to the Department of

Homeland Security, and as an observer, my guess is that the Department of Homeland Security needs this information so they can

protect us domestically from possible threats.

Well, the problem is we have created a voluntary program in

which we have essentially said, we won’t tell anybody of the existence of this threat if you will voluntarily provide the information.

As I said in my written testimony, I ran across an article recently

in a publication called Security Focus that indicated, generally

speaking, the industry hasn’t been willing to give up this information. They are more worried about what would happen to the information if the Government had hold of it than they are than if the

public had hold of it.

So I guess my point is this, that if the Government feels, and if

as a policy the Government feels it needs this information to do its

duty, my personal opinion is that the Government needs to require

the industry to disclose this information to them, not say, please

give me this information and in return I won’t let anybody else

know anything about it. I think at the end of the day, it seems to

me that if we do not know about this sort of information, these

vulnerabilities, we are basically fooling ourselves, we’re lulling ourselves into a sense of false security that these situations don’t exist.

I think we’re actually doing ourselves more harm than good.

I thought that Tom Blanton’s recommendations for putting some

of these offices like ISOO into individual agencies were extremely

good. I guess part of my recommendation really is, I don’t believe

any of these programs are going to go away unless Congress makes

them go away. So I think that at least at the very minimum you

all need to think seriously about how to restrict the use of these

programs within the agencies that are already using them now.

When I talk about these programs, I’m talking about these programs of things like sensitive but unclassified and what-not.

[The prepared statement of Mr. Hammitt follows:]

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Mr. SHAYS. Thank you, Mr. Hammitt.

Ms. Edmonds.

STATEMENT OF SIBEL EDMONDS

Ms. EDMONDS. Good afternoon. My name is Sibel Edmonds.

I have been invited to provide you with my testimony today regarding my direct experience with the use of excessive secrecy, rare

privileges and overclassification by the Department of Justice

against me during the past 3 years. Thank you for giving me this

opportunity today.

I believe that my case clearly illustrates how the Government

uses secrecy laws and classification to avoid accountability, to cover

up problems and wrongdoings, and to gain an unfair legal advantage in court. I began working for the FBI as a language specialist

for several Middle Eastern languages, starting shortly after September 11. I was granted top secret clearance.

During my work, I became aware of problems within the translation unit, involving criminal conduct against our national interests, potential espionage, serious security breaches threatening our

intelligence, intentional mistranslation and blocking of intelligence.

I was asked and later ordered to refrain from reporting these allegations. I reported them, together with evidence, to higher management within the Bureau. They refused to take any action, and they

asked me not to pursue them.

I then took these issues and evidence to the Department of Justice’s Office of the Inspector General and to the Senate Judiciary

Committee, because I believed that according to our laws, these

were the appropriate steps to take in this kind of a situation. As

a result, I was retaliated against, I was ordered to submit to a

polygraph, which I passed, and they confiscated my home computer. Finally, in March 2002, I was fired. The only explanation I

received for getting fired was, for the convenience of the Government.

In March 2002, the Senate Judiciary Committee began investigating my case and allegations, and in July 2002, they had two

unclassified briefings with the staff of Senator Grassley and Senator Leahy. During these two unclassified meetings, FBI confirmed

basically my allegations, my court allegations. Again, these meetings were unclassified, they were public. These two Senators issued

public statements and letters regarding these confirmations that

FBI confirmed my allegations and my case. They demanded expedited investigation by the Inspector General and further response

from the FBI.

These letters and statements were widely disseminated in the

media and on the Internet, including on the Senators’ own Web

site. When the judge overseeing my legal cases asked the Government to produce any unclassified material that was relevant to my

allegations, the Government took a truly extraordinary step. It

moved to retroactively classify these letters, statements and news

releases that had been public for almost 2 years.

It is quite clear that the Government’s motivation was not to protect national security, although they cited national security, but

rather to protect itself from embarrassment and from accountability. Senator Grassley characterized this retroactive classification as

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ludicrous and gagging the Congress. However, the Congress complied. Only after this highly unusual retroactive classification was

challenged in court by POGO, a Government watchdog organization, did the Department of Justice reverse itself and declare that

this information was not considered classified and a danger to our

national security after all.

I would like to request that these letters from Senators Grassley

and Leahy be included in the record of today’s hearing.

Mr. SHAYS. We would be happy to include them with no objection. They will be included.

[The information referred to follows:]

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Ms. EDMONDS. Thank you.

In March 2002, the Department of Justice’s Office of the Inspector General began investigating my allegations. In July 2004, after

almost 2 years delay, it completed its investigation. The Department of Justice immediately moved to classify the entire report and

its findings. Six months later, they allowed the Inspector General

to release only an unclassified version of its executive summary.

This unclassified version confirmed my core allegations, concluded

that I was fired for reporting misconduct and stated that the FBI

had failed to investigate the reported espionage, even though other

facts, documents, witnesses and evidence support my allegations.

I would like to request that the Inspector General’s report also

be included in the record of today’s hearing.

Mr. SHAYS. We will be happy to do that as well, without objection.

[The information referred to follows:]

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Ms. EDMONDS. Thank you.

In the summer of 2002, I also began to pursue legal remedies to

challenge my unjust dismissal under First Amendment and Privacy

Act, and also under the Freedom of Information Act. Rather than

respond to the merits of my claim, in October 2002, Attorney General Ashcroft asserted a rarely invoked state secret privilege, arguing that the entire case must be dismissed in the name of national

security, even if my allegations were correct. According to the state

secret privilege that they invoked, everything about my case, everything about it was considered classified and it could not be argued

in court.

The Department of Justice asked the court to try the case without any hearings, without any depositions or discovery. Even

though the Department of Justice’s own Inspector General had confirmed the seriousness of my allegation, and concluded that I was

fired for raising them, the DOJ still continued to insist that my

case cannot go forward because it would jeopardize national security. So far, the Department of Justice has been successful in this

effort to silence these court cases.

In June 2004, the court ruled in favor of this far-reaching assertion of the state secrets privilege. Currently I am applying this case

and the Department of Justice is still invoking the state secret

privilege.

The Government invoked the state secret privilege a second time

in an attempt to block me from being deposed in a case brought

by families of those killed on September 11 against Saudi individuals and entities alleged to have financed Al-Qaeda. The Government insisted that almost every single question that the families

wished to ask would require the disclosure of classified information.

The problems I have reported have serious consequences to our

national security and have already been confirmed by the IG report

and the inquiry of Senators Grassley and Leahy. Translation units

are the front line in gathering, translating and disseminating intelligence. A warning in advance of the next terrorist attack may and

probably will come in the form of a message or a document in a

foreign language that will have to be translated. If an attack then

occurs which could have been prevented by acting on information

in such a message, who will tell family members of the new terrorist attack victims that nothing more could have been done? There

will be no excuse that we did not know, because we do know today.

Yet knowing full well the seriousness of these confirmed issues

and problems, rather than addressing them, the FBI and the Department of Justice spend time and effort to cover them up by overuse of secrecy and excessive classification. Contrary to their claims,

they seem to be far more concerned with avoiding accountability

than protecting our national security. I believe that my case clearly

illustrates the Federal Government’s capricious use of secrecy laws

and classification to cover up problems and wrongdoing and to

avoid accountability.

Thank you again for inviting me to testify today. You are the

first congressional committee after 3 years to request my testimony

and hear my story. I believe this testimony is a good first step in

examining the situation. But what is really needed is an actual

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congressional investigation. Therefore, with respect for your critical

role in our Constitutional system of checks and balances, I request

that you be the first congressional committee to investigate not just

my case but what is going on over there at the FBI and the Justice

Department regarding the very serious problem of overclassification and the abuse of secrecy.

Thank you.

[The prepared statement of Ms. Edmonds follows:]

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Mr. SHAYS. Thank you. I will have questions for all three of you,

but I would first like to turn to Mrs. Maloney, and she’ll start out.

Mrs. MALONEY. I would like to thank all of the panel members

for your testimony, and Ms. Edmonds, your testimony was very,

very upsetting, basically that our Government used their own system of classification to dismiss you, to cover up complaints and the

FBI, according to your testimony, substantiated your position. You

should be given an award, not fired, if you are standing up for

what you think is right and speaking up and pointing out where

you think there may be a threat to our country.

I am going to write a bill and I am going to name it after you.

It is going to follow very closely the bill that I authored along with

Senator DeWine on the Nazi War Crimes Disclosure Act. It was the

largest disclosure of documents since the Nuremburg Trial. Mr.

Blanton, you pointed out that one of the great successes of this bill,

they authored what needed to happen, but the way it was implemented was the constant oversight of a review board of which Mr.

Richard Ben-Veniste was one of the public appointees. And in fact,

we are still working and confronting the CIA which is refusing to

release the documents. We are working now in a bipartisan way to

get an extension of the bill to get them.

But I am going to take that model and write it for every single

agency. One of the themes that all of you had was that if disclosure

is out there, it strengthens our Government. It strengthens us

when we know what’s wrong, because then we know what we have

to do to fix it. That was what was so important about the 9/11

Commission report that it was a strong bipartisan effort. It showed

that secrecy and failure to communicate and the stovepiping and

failure to share information was one of the reasons, it was an intelligence failure. So if we didn’t know the information, then we

couldn’t work to correct it.

But I think that your report is tremendously upsetting to me. I

do a lot of work on discrimination against women in employment.

But this was truly your standing up to report espionage at the FBI,

if I understand it correctly. And instead of investigating your claim,

the FBI fired you. Is that basically what happened in your case,

Ms. Edmonds?

Ms. EDMONDS. Yes, absolutely.

Mrs. MALONEY. And as we sit here today, even though the Justice Department Inspector General has sided with you, is that correct?

Ms. EDMONDS. Correct. They said that my allegations were confirmed by other witnesses, facts, evidence and documents.

Mrs. MALONEY. Even though this was confirmed, your allegations, when you were trying to help our Government, yet the administration, am I correct, is still fighting you?

Ms. EDMONDS. Correct. They are still continuing to invoke the

state secret privilege and they are saying that despite these confirmations and by the Senate, we are considering these issues, all

of them, classified. Therefore it cannot proceed in court. Even the

IG report, what we have today, is their unclassified version of the

executive summary. A big portion of this report has not been released yet to date.

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Mrs. MALONEY. Our system, when we classify things, it’s supposed to be used for national security, not to punish whistle blowers or cover up a ‘‘mistake’’ possibly in an agency. I think that your

testimony is tremendously upsetting. It underscores that a system

that we’ve tried to put in place is not working. I am very upset

about it.

Would you say, it’s almost unbelievable what you said, you’re a

translator, correct?

Ms. EDMONDS. Yes.

Mrs. MALONEY. What are the languages that you speak?

Ms. EDMONDS. According to the Department of Justice, that information is classified. So I cannot name the languages I speak.

Mrs. MALONEY. Are you making a joke or are you being serious?

Ms. EDMONDS. No, I have actually questions that were submitted

and after these questions were submitted, the FBI, the Department

of Justice, declared the languages I speak, all of them, all three of

them, classified.

Mrs. MALONEY. I don’t understand. Are you telling me that the

language, they are interpreting that the languages you speak in

telling this committee what these languages are, affects our national security?

Ms. EDMONDS. Correct. That’s what they have asserted. That’s

what they have invoked for the past 3 years, that information is

classified.

Mrs. MALONEY. I fail to understand how in any way, shape or

form, Ms. Edmonds telling us the languages she speaks affects our

national security. Why does the Justice Department claim that this

is classified information? Why do they claim the languages you

speak are classified information? On what grounds?

Ms. EDMONDS. What they are saying is they can’t even say why

because the information is so classified and it involves state secrets

that even explaining it would present danger to our national security. Even if I’m right with my allegations and my case, nothing

about me can be discussed because everything about me and everything about my case is considered the highest level of national security and state secrets.

Mrs. MALONEY. I find this ludicrous and ridiculous and an example of how this system is out of control. We have to have some oversight on it.

Can you tell me something about yourself? Where did you go to

school?

Ms. EDMONDS. That information is classified. [Laughter.]

Mrs. MALONEY. Were you born in this country?

Ms. EDMONDS. I can say no, but I cannot tell you where I was

born. That information is classified.

Mrs. MALONEY. Mr. Chairman, I find this absolutely absurd. I

hope it’s an area we can work in together. We need an independent

review board, I would say, in every single agency. It’s probably

more compelling in national security, but every single agency that

may have a whistle blower that they want to silence or whatever

can just sit there and classify everything about that person so they

can’t even express their situation.

I have a series of other questions for the other two, but I see the

red light is on, and my time is up.

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Mr. SHAYS. Why don’t I ask a few questions, and then we’ll——

Mrs. MALONEY. OK, thank you.

Mr. SHAYS. Why don’t the two of you just react to Ms. Edmonds’

testimony?

Mr. BLANTON. I would be glad to.

Mr. SHAYS. What I would like you to do first, I would like you

to explain why there is a National Security Archive at George

Washington University, I would like you to explain why there is an

Access Report: Freedom of Information at Lynchburg, Virginia.

Just explain to me the significance of what each of you do before

you answer the question.

Mr. BLANTON. When the Freedom of Information Act really started to apply to national security information, it was only in 1974,

it was over President Ford’s veto. About 10 years after that, a number of journalists and historians had amassed so much documentation released through FOIA that I think their spouses threatened

to divorce them if they didn’t get it out of the house. Thus, the National Security Archive was born. We’ve always stood up for family

values ever since. I’m only partly joking.

Mr. SHAYS. But it’s part of the university?

Mr. BLANTON. Yes, sir, we are an affiliate of George Washington

University. We’re housed in the main library at George Washington

University.

Mr. SHAYS. How many staff?

Mr. BLANTON. We have about 33 people on staff here and about

11 people around the world that we pay part or all of their salaries.

Mr. SHAYS. What is the value of this institution?

Mr. BLANTON. We file more Freedom of Information requests

than anybody else in the non-profit, non-commercial world.

Mr. SHAYS. You request them?

Mr. BLANTON. We file the requests. We request the documents.

What we are after is, we’re trying to create an institutional memory against this most shrouded area of American governance.

Mr. SHAYS. That’s helpful. Thank you.

Mr. Hammitt, tell me, what is the Access Reports: Freedom of Information? What is that?

Mr. HAMMITT. I started writing Access Reports in 1985, then I

bought it from the small company that originally owned it in 1989.

Access Reports is a bi-weekly newsletter that deals specifically

about the Freedom of Information Act. It also deals about Government information issues generally and what I refer to as informational privacy. The four statutes that I cover rather closely are the

Freedom of Information Act, the Privacy Act, the Federal Advisory

Committee Act and the Sunshine Act. I also cover cases that have

happened on the State level. As you know, in Connecticut, you

have your own FOIA and all the other States have similar sorts of

laws.

Mr. SHAYS. So now just tell me, how did you digest what Ms. Edmonds was saying? First, let me ask you, Ms. Edmonds, is some

of this information being held up because the court says it’s not

public information now because you’re in a court case? Or is this

all the Government saying that you can’t discuss this?

Ms. EDMONDS. No, these are all invoked by the Government, and

in various cases, not only court cases. That’s what they did, even

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when they retroactively classified those Senate letters. They said

they could not even refer to——

Mr. SHAYS. So it wasn’t the court?

Ms. EDMONDS. No.

Mr. SHAYS. Let me just tell you the problem of being the ‘‘first

to investigate a case.’’ I’m going to be asking the staff to look at

the IG’s report and be in contact with the IG about it. But when

someone chooses a venue in court, we do not want to be used by

the plaintiff to be the source of information. We don’t want to be

used that way. So we kind of back off when someone goes into

court. It puts us in a situation where we don’t know whether we’re

doing your bidding or trying to find—it kinds of distorts the issue.

So it complicates it a bit. But we’ll be doing some looking at the

staff level at this case.

Would you both explain to me what your reaction is?

Mr. HAMMITT. Well, as I listened to what Ms. Edmonds said,

when she says that the language that she can speak or where she

was born or where she went to school is classified, I mean, that’s

information that intrinsically belongs to her. I see absolutely no

way in which the Government can classify that information, or prevent her from speaking about it on her own. I can see that there

are certain aspects of her case that theoretically could come under

the shroud of the state secrets privilege.

To go a little further, I have seen other cases in which the Government has invoked the state secrets privilege. From my point of

view as an observer, the state secrets privilege is almost invariably

invoked by the Government when it just wants to stop litigation

dead in its tracks. The district court judge basically ruled against

Ms. Edmonds in this case, as I understand it, having read the decision, because all it takes to invoke the State Secrets Act is to have

the attorney general sign the declaration and submit it to the

court.

Mr. SHAYS. So the court then becomes obligated to—case closed

in a way.

Mr. HAMMITT. As the privilege is interpreted now, I believe that

once the court has agreed that the privilege has been improperly

invoked, they have no more power. Her case is up before the D.C.

Circuit now. I don’t know that there is a date set for it yet or not.

Mr. SHAYS. You’re almost implying it’s stacked against her because the absurdity of classification can be used against her and

a court can’t evaluate whether it’s being misused, in a sense.

Mr. HAMMITT. Absolutely. The State Secrets Act, a state secret

privilege is the broadest privilege I’ve ever run across.

Mr. SHAYS. When you heard this, you thought, well, I’ll tell you

what I thought. I thought this is an absurdity. It makes me want

to understand why someone wouldn’t be rewarded for reporting

concerns that an employee has. But were you listening to this and

saying, this isn’t so surprising, I’ve seen it before?

Mr. HAMMITT. No, no. I don’t mean to imply that. I think that

what Ms. Edmonds said, as I say, about her background, I think

that I haven’t heard anything any more absurd, although I think

as Mr. Ben-Veniste said, I’m never surprised at how absurd certain

things are in life. So no, I would completely agree with you. But

this is an extraordinarily broad based privilege. Litigating in this

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area of national security, and this is just part of that, is like hitting

your head, butting your head up against a brick wall.

Mr. SHAYS. Ms. Edmonds, if I had reported what I thought was

evil work against my Government and I was then punished, it

would be my life work not just to vindicate myself, because I don’t

think I would need vindication, but to hold every one of those people accountable. Certainly we will be looking at that issue.

Mr. Blanton.

Mr. BLANTON. Mr. Chairman, with many secrets, not all, I should

say, many secrets there is a kernel of truth in the sense that the

FBI probably maintains internally, they’re not all evil people, in

fact a lot of people of goodwill, that to reveal the languages that

Ms. Edmonds speaks would reveal something about their targeting

of foreign nationals, about their pattern of wire tapping, about

what they’re trying to gather. At least that’s the claim that I can

imagine in their papers. I’ve seen claims like that in countless

Freedom of Information cases.

When there is any kind of independent review of those claims,

they almost always fall apart. Not always, there are some real secrets. But they almost always fall apart. The problem with the

state secrets privilege is the courts don’t provide any such independent review.

The one case that set the precedent, the so-called Reynolds case

in 1952 in the Supreme Court, which upheld what turns out to be

a false Air Force affidavit. We know this because of the declassification of the 1990’s. One of the survivors’ kids got a copy of the

crash report that was released in the big declassifications of the

1990’s. She was able, like in a DNA data base, to go back and

unconvict the murderer, she was able to go back to that case and

say, wait a second, Air Force was covering up negligence in the airplane crash.

She can’t get a hearing. The Supreme Court refused to accept the

case. The state secrets privilege continues as kind of the neutron

bomb of whistle blower litigation. It leaves no plaintiff standing.

Mr. SHAYS. Is the case that’s still out there?

Mr. BLANTON. The law firm in Philadelphia, the so-called Reynolds case, has tried to reopen it. They were rejected at the Supreme Court. I believe they have a petition at the Federal courts

in Pennsylvania. It’s still out there. It’s a fascinating case, because

it shows you when you look closely and have any kind of independent check on these claims, you get a different result than what you

start with.

Mr. SHAYS. Well, we have a full committee, we have been looking

at the case in Boston of where four people were falsely accused of

murder and held in jail, two died, I think, in prison and two were

set free. But they were even on death row for a while. He was separated from his wife and children for 30 years. As far as I’m concerned, the Government owes him so much and yet it is a struggle.

The interesting thing is there, I would be somewhat involved in

wanting to help them in that court case, so I have to think through

this one as well.

Mrs. Maloney.

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Mrs. MALONEY. Based on the IG report that substantiated your

case, just let me know any time you’re going into court and let me

see how many women leaders I can get to come stand with you.

I find this extremely upsetting. It basically shows that the Government can close down any information, including the ability of a

‘‘defendant’’ to defend himself or herself. If you can’t even say what

languages you speak, how in the world can you defend yourself in

court? I mean, it’s just really disturbing. If we can’t look at it as

a Government and the courts can’t look at it, what’s there to protect these people? I would ask Mr. Hammitt and Mr. Blanton, what

recourse do they have if they can come in and say their entire court

case is classified, what in the world can they do? No one can look

at it. No one can do anything about it. You are basically taking the

rights of these individuals away. To me, it’s very upsetting.

What recourse do people have when they come in and say, your

case is classified, no one can look at it? What can you do?

Mr. HAMMITT. I think everything you’re saying is absolutely right

and it’s incredibly distressing. The only thing I think that somebody like that has is the power of publicity. That’s not necessarily

going to get them a hearing. I mean, the only other tool available

to them after they’ve had their litigation shut down is to try to embarrass the Government to such an extent that the Government decides to come to the table. It’s terrible that you have to do that.

Mrs. MALONEY. Believe me, it’s hard to get publicity on anything.

Take Ms. Edmonds’ case, what is she going to do, go down to a

paper and say, just write up my case? I think that’s a hard thing

to achieve. Do you want to talk about that, Mr. Blanton?

Mr. BLANTON. If she wins in the appeals court, it will be a great

victory. If she loses, she’ll be back in front of you, asking for your

help as a committee of this Congress to push further. Because the

reality is, there are very few recourses. That’s why Congress, I

think, in the interests of the same checks and balances that as an

institution you represent, needs to think very creatively about how

do you balance off something like the state secrets privilege?

Mr. SHAYS. When will your case be heard?

Ms. EDMONDS. You mean my court case? We have an appeal, our

hearing is on April 21, 2005.

Mr. SHAYS. If there was an issue of you losing on the merits,

that’s one thing. If there is an issue of you losing because it can’t

be heard because of state secrets, I want you to knock our door

down.

Ms. EDMONDS. May I say something?

Mr. SHAYS. Sure.

Ms. EDMONDS. That is a court case. That is a totally separate

case. The issue of retroactively classifying congressional documents,

which the Government changed its mind, this is the Department

of Justice, just 2 weeks ago, saying for 9 months, we consider it national security, top secret, classified, but it no longer is. And the

fact that there is an IG report currently out, even in its own classified executive summary version, confirms all my core allegations.

It clearly says that the FBI, to this day, has failed to investigate

these espionage cases, the cases where translations were intentionally blocked. Those translators are currently in there receiving

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our intelligence and they are translating it right now. They are the

ones that we are entrusting our national security with.

These issues actually have nothing to do with my court cases.

These issues have to do with the U.S. Congress and the oversight

and the system of checks and balances.

Mr. SHAYS. If the gentlelady would yield again?

Mrs. MALONEY. If I could please ask her a question first. Am I

hearing you right, to this day the FBI has not investigated your espionage allegations? And even though the IG report has been out

for some time, would you clarify that?

Ms. EDMONDS. Correct. The Department of Justice’s Inspector

General’s report says that FBI, despite the fact that all these

issues and allegations were confirmed by other sources, evidence,

facts and documents, they still have not acted. They have not taken

any action. That’s correct.

Mrs. MALONEY. So in other words, rather than investigate the allegations thoroughly, the FBI concluded that you were disruptive

or whatever and terminated you, is that correct?

Ms. EDMONDS. That’s what the report says, that they terminated

me because I was not backing up from these allegations and that

was being disruptive.

Mr. SHAYS. Excuse me, Mrs. Maloney, if the gentlelady would

yield just a second.

Mrs. MALONEY. I would be happy to yield.

Mr. SHAYS. I’m happy to have her go beyond her 5 minutes, but

I just want to make sure that after the meeting, you get with my

two staff members here and Mrs. Maloney’s staff, and you give us

the names of the people that you are accusing of illegal actions

against their Government. We will contact the FBI tomorrow and

ask for an accounting of whether or not they are looking into those

individuals. We will be happy to pursue that.

So after this meeting, you get together with the two staff behind

me. You have the floor again, Mrs. Maloney.

Mrs. MALONEY. Well, I have a series of questions on this, but I

really would like to speak to my colleagues, particularly my colleague in Government and my colleagues in this room, about these

serious ramifications that her case illustrates. I would say throughout every agency in Government, that the individual can basically

be told to shut up if the agency doesn’t like what they’re saying,

and not even bother to investigate what the person is saying is in

my opinion an outrageous abuse of power.

But also I would say, Mr. Chairman, given the focus that we now

have on homeland security and the amount of dollars that we are

allocating, I would say clearly a third of a trillion dollars we’ve put

into various homeland security, defense and Iraq and other areas,

the inability to be able to look at these contracts or to have a whistle-blower come to us or anyone else and talk about it, they can effectively gag them under these provisions that they have, and they

absolutely have no recourse.

I think it’s wrong for any person in any agency, even if you’re

an educator and you think there is an abuse in the purchasing of

the books or whatever, but it’s particularly problematic with tremendous ramifications in homeland security dollars and homeland

security allegations. I find quite frankly your testimony absolutely

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and completely terrifying. I don’t even want to believe it, because

I want to believe in my Government. But what happened to you is

extremely wrong, and upsetting to me.

I want to go back and make sure that I understand where we

are. Basically, Ms. Edmonds, you testified that the FBI ignored

your allegations of criminal conduct. I find that hard to believe, but

that’s what you said.

Ms. EDMONDS. Absolutely correct.

Mrs. MALONEY. Then you took the information to the Senate Judiciary Committee, correct?

Ms. EDMONDS. Correct.

Mrs. MALONEY. Then the Department of Justice Office of IG?

Ms. EDMONDS. Correct.

Mrs. MALONEY. And after the Senate Judiciary Committee began

investigating your claims in a bipartisan way, Senators Grassley

and Leahy, they issued public statements and letters demanding

an expedited investigation by the IG and a response from the FBI,

is that correct?

Ms. EDMONDS. Yes, they said during their unclassified briefings

with the FBI, ‘‘FBI confirmed all their allegations and they denied

none.’’

Mrs. MALONEY. And even though these statements and letters

were widely distributed, the administration then chose to retroactively classify them years later?

Ms. EDMONDS. Two years later.

Mrs. MALONEY. Two years later they then retroactively decide,

you know, to me, it’s wrong in your case, but it’s wrong that the

Government has the ability, or power to jump back 2 years and

classify information they don’t want to come out. I find this tremendously upsetting.

So let me make sure I understand. So after two U.S. Senators,

in a bipartisan way, issued public statements about unclassified

briefings, the administration actually went back and classified

them?

Ms. EDMONDS. Correct.

Mrs. MALONEY. And this happened 2 years after they issued

these statements?

Ms. EDMONDS. Yes.

Mrs. MALONEY. Did you have an attorney? Were they able to do

this? Do you have an attorney representing you?

Ms. EDMONDS. Yes, I did.

Mrs. MALONEY. By law they can go back and classify 2 years

past? And after all that time, why do you think these public statements and letters were classified? Why did they jump back 2 years

and classify these letters and statements?

Ms. EDMONDS. They believe that it was due to the fact that at

that point they were trying to gain their upper hand both in court

cases and also with respect to the Inspector General’s report and

also other cases brought by the September 11 family members

against certain countries.

Mrs. MALONEY. OK. I’d like to ask you in your view, was there

anything in the statements and letters that in any way in your

opinion constituted a threat to our country’s national security?

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Ms. EDMONDS. No, absolutely not. Not only that, if that was the

case, there were thousands of Web sites that displayed these letters

for over almost 2 years, over the Internet. These letters were

quoted extensively, on the front page of the Washington Post, in

other newspapers.

So the Government never went back and took out that information, those letters, from all other sources that had this information

available. They just wanted to shut down these congressional investigations and these line of questions and investigations by the

Senate.

Mrs. MALONEY. Well, what I find tremendously upsetting, Mr.

Chairman, is this fact pattern that she’s putting out there is showing that the public has absolutely no chance against the Federal

Government. If the Federal Government decides to close you down,

there is no court case, the so-called independent court system

wouldn’t be able to look at it, because you can’t even say where you

were born or what languages you speak, much less what happened.

All I can say is that, congratulations to the IG system that this

Congress put into place that has one form of resource of independent review that has come in and substantiated what you’ve said.

I find her story incredibly upsetting. I would like to ask Mr.

Hammitt and Mr. Blanton, what is your response to her story? I

have never heard of this before? What is your response to this?

Mr. BLANTON. It happens all the time.

Mrs. MALONEY. This is an abuse of power.

Mr. BLANTON. Absolutely, and it happens all the time, and anyone who has looked at classified-declassified information and Freedom of Information cases sees the same kinds of claims. I think it

will only stop when we figure out a way to give the court some

backbone. Right now, the case law is almost complete deference.

But there is a wonderful precedent right here in the D.C. Circuit.

We brought a Freedom of Information case about the failed Iran

rescue mission. We asked the judge, when the Pentagon said, it’s

all totally classified, not a page can be released, we said, appoint

a special master. You do it in desegregation cases of public schools.

Appoint somebody who actually has some expertise, a person who

held some clearances, who can look at it.

Just by bringing in the special master, the court was able to pry

loose ultimately 88 percent of the total body of information the

Pentagon originally said not one word could come out. And let me

tell you one of the top secrets that was included. It was the afteraction report from the helicopter pilots who told the Pentagon,

don’t include milk in our box lunches, it goes sour in the desert

heat.

So if Congress could actually endorses this kind of precedent,

which only really exists here in the D.C. Circuit, encourage courts

to take creative countervailing power, like appointing special masters, in cases that involve national security secrets, where the

judge, for some good reasons, does not feel expert, does not feel

able to argue with the Government claim, will show total deference

to the Government claim. You have to move some other countervailing power into the system. If the appeals court appointed a special master to look at Ms. Edmonds’ case and to look at the case

file, my bet is that 90 percent of what’s in the IG report, what’s

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in the complaint file and the investigations file would be released

tomorrow.

Mr. HAMMITT. At the risk of piling on, I’m afraid I completely

agree with Tom. I think these sorts of instances happen much,

much too frequently, and I think that the state, when I see the

state secrets privilege invoked by the Government, my first reaction personally as an observer is, the Government doesn’t want this

litigation to happen. It doesn’t have to specify why it believes this

is a state secret, it just has to, as I said earlier, it has to provide

this affidavit signed by the Attorney General.

And that, if the Attorney General is on board, that’s not a terribly difficult obstacle to overcome. This sort of thing happens

when the Government just does not want this litigation to go forward. I completely agree with Tom. I can’t personally believe that

there’s any national security involved in there.

Mrs. MALONEY. I just want to thank the chairman for an extraordinary hearing. I just have one last question for Mr. Blanton. When

I read redacted Freedom of Information claims, they always cite

section 5. They get an exemption or we’re blacking it out because

of section 5. Could you in a general sense tell me what is section

5? How come they can redact so much under section 5?

Mr. BLANTON. This is the deliberative process exemption. Like

many exemptions, it comes from a kernel of a good idea. You want

to encourage the most candid exchanges of views, you want to encourage officials inside any proceeding to give their frankest possible advice.

But I would say today, with the Ashcroft memoranda and the

way the Government is interpreting it, the B(5) exemption, socalled, is now a shadow covering the entire body, or as much as

they can cover of Government information. The problem fundamentally I think comes to the core question: How does it really make

us safer? If a Government official would change their advice to a

policymaker for fear of being public, the remedy is to fire that

weak-kneed official, not keep that opinion secret.

Mrs. MALONEY. Thank you very much.

Mr. SHAYS. Ms. Edmonds, I’m a little confused as to what the

status of your relationship is with Grassley and Leahy. Are they

pursuing this? Have they dropped your case? What have they done?

Ms. EDMONDS. That’s what I am waiting to hear back, because

I have been sending letters saying, for 2 years I was told that everybody in the Congress has to wait for the Inspector General’s report to come out before——

Mr. SHAYS. You’re not being responsive to my question. My question is, what is your relationship with Mr. Leahy and Mr. Grassley

right now? These are two distinguished elected officials who have

had a chance to review your case far more than Mrs. Maloney and

I have. I want to know, are they actively pursuing your case?

Ms. EDMONDS. I really can’t answer, because I don’t know.

They’re not being responsive.

Mr. SHAYS. So there is a challenge that you have working with

these two very distinguished people.

Ms. EDMONDS. They have been actually very supportive and good

in the past. It’s just that they haven’t been responsive since the IG

report.

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Mr. SHAYS. Which is how long ago?

Ms. EDMONDS. The IG report, they gave it to the Senators because they could review it, the classification, etc., in July 2004. So

since July 2004, I haven’t had any response.

Mr. SHAYS. I think the first thing will be obviously to contact

them and find out what work they’ve already done so we don’t have

to duplicate it and so on.

Is it conceivable that the FBI felt that some of your complaints

were beyond your ability to know? In other words, a question of

someone’s time sheet? As we’re just going through it, the IG said

you made a complaint about someone’s time sheet and that person

wasn’t even there that day.

Ms. EDMONDS. I didn’t make complaints about those. In fact,

those issues came out much later with the IG, because the IG says,

a lot of cases in the FBI were criminal, and that to be exact, they

said since the Inspector General’s office is not in the business of

conducting criminal investigations, we want to find out about these

nitty-gritty administrative stuff. That’s how they worded it.

Mr. SHAYS. I just want to say, in the report, you accuse someone

of a time sheet not being accurate, and they found out that the person wasn’t even in the office that day. That takes away your credibility, obviously, when you are making complaints about someone

and are wrong about that.

I’m just saying, I want you to know I am deeply concerned about

your testimony and I have to accept on the face of it certain comments. But it’s a ‘‘he said, she said,’’ and I don’t know what the

other side is. I just want to respond to you that I don’t know what

the other side is on this.

I do know that I don’t like classification to be used as the basis

not to know both sides. I do know that if you have accused someone

of espionage, I sure as hell am not going to have you tell me that

nothing’s been done and then just not respond to it. We’re going to

respond to it, and you’re going to tell us who those people are and

we’re going to find out what happened. So we’re not going to drop

the ball here.

But I just want you to know, I’ve been in this business now 30

years. We have one side of this story. We will try to understand

the other side and then take appropriate action. That’s my point.

Ms. EDMONDS. That’s exactly what I believed that the IG report

was going to do, and also the Senate letters.

Mr. SHAYS. Do you think it did that?

Ms. EDMONDS. Yes, to a certain degree, and also the Senate letter saying that the FBI had already confirmed all those allegations.

Mr. SHAYS. I’m asking about the IG. In other words, you suggest

the IG’s report be something that is submitted for the record, and

we submitted it for the record, we’re going to be looking at it.

But when we look at the record, it’s not something that makes

you, it does raise one or two questions about what your participation in this is. It has a ‘‘Keystone Cops’’ kind of feel to it, with espionage, which is extraordinarily serious, somehow intertwined in

here. So it has charges that seem petty that you are making as

well as espionage at the same time. So it’s just an interesting kind

of mix of stuff here that we haven’t looked at yet and will look at.

Ms. EDMONDS. That was by IG’s choice, sir.

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Mr. SHAYS. What was that?

Ms. EDMONDS. That was by IG’s choice, because the allegations

that I took to the Senate and to the IG were those core allegations

you see at the beginning that had to do with mistranslations, intentional block of translations and espionage cases. But the other

ones that——

Mr. SHAYS. Espionage case, in other words, involved in espionage

or they were guilty of espionage?

Ms. EDMONDS. How it was told to this date is potential espionage

case, security breaches that were confirmed by other witnesses,

facts, evidence.

Mr. SHAYS. I just want to be clear. Are you accusing people of

committing espionage?

Ms. EDMONDS. I am accusing people with documents, evidence,

dates and other witnesses of involving in actions against the

United States, national security, intelligence, military secrets and

nuclear secrets.

Mr. SHAYS. What about military and nuclear secrets, that they

were doing what?

Ms. EDMONDS. I cannot talk about that information unless I am

in a secured facility.

Mr. SHAYS. You’re accusing them of committing espionage is the

answer or not?

Ms. EDMONDS. Right.

Mr. SHAYS. So you will meet with our staff afterwards.

Is there anything that any of you would like to put on the record

before we adjourn? Any last points? We weren’t intending to focus

this much on one case, but it certainly was illustrious of an issue

and very informative. We thank you for being here.

Mr. HAMMITT. I guess from my point of view, I would just like

to thank the subcommittee for its interest in this subject. I think

that it’s going to take serious congressional oversight and possibly

legislative initiatives on the part of Congress to do something about

the growth of these sorts of non-classified systems of information.

I really appreciate the fact that you are looking at this, because

this is an extremely serious problem.

Mr. BLANTON. Mr. Chairman, you asked the question last summer that got all this started, because you forced people on the

record to say how much overclassification is there. If you ask the

same questions about the pseudo-classification, it’s the beginning of

reining it in and having a more rational system that actually protects us and accountability.

Mr. SHAYS. Let me just quickly, that was one of my intentions

before I was thinking so much of Ms. Edmonds’ case. Are these

pseudo-classifications something that have been, 2 years ago, 3

years ago, 10 years ago, 15?

Mr. BLANTON. They have happened as long as there have been

bureaucrats in the world. Harold Relyea’s paper, which is a fascinating read, takes us back to the 1950’s, it has the battles of

pseudo-classification just like this. It’s a bad idea, it’s a natural, I

think, human response, if you’re in a bureaucracy it’s how you protect your turf, it’s how you get more resources, it’s how you keep

other people out.

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General Groves, the head of the Manhattan Project, listed six or

eight reasons of why we have to have secrecy around the nuclear

bomb. The first three were the Germans, the Japanese and the

Russians. But the next one was to keep prying outsiders and other

executive agencies and the Congress from knowing what we were

doing. Another one was, keep our folks focused on their own work

and not messing around in other compartments. Another was to

have surprise. He said, but of course that one got lost as soon as

we blew up the bomb. That was the big secret, that it worked. Once

you knew it worked, any competent physicist could go back and

make a nuclear bomb. It wasn’t really a secret any more.

The people who have real secrets to protect will also tell you,

there’s a bureaucratic imperative. So you have to count them, cost

them, limit the people who can create them, put in countervailing

powers, have independent reviews, and then you’re part-way there.

Mr. SHAYS. We had a staff retreat yesterday in which I was telling my staff that I wanted to be able to do ‘‘cutting edge issues’’

and then do some significant follow-through. I guess this qualifies

on both levels.

Mr. BLANTON. Yes, sir, that’s true.

Mr. SHAYS. This is a very interesting issue and one which will

get some good attention for this subcommittee.

Any closing words from you, Ms. Edmonds, before we adjourn?

Ms. EDMONDS. No, I just want to repeat one thing and that

is——

Mr. SHAYS. So yes, you want to repeat? [Laughter.]

Ms. EDMONDS. Yes, thank you.

And that is, aside from the issues that we will be discussing,

with the other reports out there regarding the FBI’s translation

units and what has happened there in terms of inaccuracies, incompetence, back-door hirings, these have been already confirmed,

not only through me. I can also give you the names, you can get

it from the IG. We do need hearings regarding these issues, because to this date, they have not addressed these issues internally.

We are in touch with translators in there who are saying, there are

only cosmetic changes.

Mr. SHAYS. Some things we can maybe even achieve without

hearings, but by simply asking questions and having staff do a little investigative work. It’s amazing what we can get done doing

that.

So your testimony has been very helpful to us and we will definitely follow through. You’re due to meet with staff afterwards.

So with that, with no additional comments, we are going to adjourn this hearing.

[Whereupon, at 5:11 p.m., the subcommittee was adjourned.]

[Additional information submitted for the hearing record follows:]

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