[Senate Hearing 118-57]
[From the U.S. Government Publishing Office]
S. Hrg. 118-57
MODERNIZING THE GOVERNMENT'S CLASSIFICATION SYSTEM
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HEARING
BEFORE THE
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
MARCH 23, 2023
__________
Available via the World Wide Web: http://www.govinfo.gov
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
52-497 PDF WASHINGTON : 2023
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware RAND PAUL, Kentucky
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona JAMES LANKFORD, Oklahoma
JACKY ROSEN, Nevada MITT ROMNEY, Utah
ALEX PADILLA, California RICK SCOTT, Florida
JON OSSOFF, Georgia JOSH HAWLEY, Missouri
RICHARD BLUMENTHAL, Connecticut ROGER MARSHALL, Kansas
David M. Weinberg, Staff Director
Zachary I. Schram, Chief Counsel
Lena C. Chang, Director of Governmental Affairs
Emily I. Manna, Professional Staff Member
Carter A. Hirschhorn, Research Assistant
William E. Henderson III, Minority Staff Director
Christina N. Salazar, Minority Chief Counsel
Andrew J. Hopkins, Minority Counsel
Laura W. Kilbride, Chief Clerk
Ashley A. Gonzalez, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Peters............................................... 1
Senator Paul................................................. 2
Senator Blumenthal........................................... 16
Senator Marshall............................................. 18
Senator Hassan............................................... 21
Senator Lankford............................................. 23
Senator Johnson.............................................. 26
Prepared statements:
Senator Peters............................................... 31
Senator Paul................................................. 32
WITNESSES
Thursday, March 23, 2023
Elizabeth Goitein, Senior Director, Liberty and National Security
Program, Brennan Center for Justice............................ 4
Thomas Blanton, Director, National Security Archive, The George
Washington University.......................................... 6
John Fitzpatrick, Former Director, Information Security Oversight 8
Patrick G. Eddington, Senior Fellow, Cato Institute.............. 10
Alphabetical List of Witnesses
Blanton, Thomas:
Testimony.................................................... 6
Prepared statement........................................... 70
Eddington, Patrick G.:
Testimony.................................................... 10
Prepared statement........................................... 89
Fitzpatrick, John:
Testimony.................................................... 8
Prepared statement........................................... 85
Goitein, Elizabeth:
Testimony.................................................... 4
Prepared statement........................................... 35
APPENDIX
National Coalition for History Statement for the Record.......... 101
MODERNIZING THE GOVERNMENT'S CLASSIFICATION SYSTEM
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Thursday, March 23, 2023
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in room
SD-562, Dirksen Senate Office Building, Hon. Gary Peters,
Chairman of the Committee, presiding.
Present: Senators Peters [presiding], Hassan, Sinema,
Rosen, Ossoff, Blumenthal, Paul, Johnson, Lankford, Romney,
Scott, Hawley, and Marshall.
OPENING STATEMENT OF SENATOR PETERS\1\
Chairman Peters. Good morning. The Committee will come to
order.
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\1\ The prepared statement of Senator Peters appears in the
Appendix on page 31.
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Every year, a whopping 50 million new classified documents
are created. Classified materials typically fall into one of
three categories: confidential, secret, or top secret, based on
their perceived sensitivity.
Although there are existing requirements to automatically
declassify documents after 25 years, in practice that process
is ineffective, and there is currently a backlog of hundreds of
millions of pages that are awaiting declassification.
Along with outdated technology, the result is an
overburdened classification system that costs taxpayers more
than $18 billion a year to maintain.
Experts, both within and outside of the Federal Government,
estimate that between 50 and 90 percent of all classified
materials could be made public without compromising national
security, and that the overclassification of documents reduces
transparency and erodes public confidence in the Federal
Government.
Today's hearing is an opportunity for the Committee to hear
from experts on how Congress can modernize the classification
system to improve efficiency and promote better transparency
for the American people.
We will be discussing proposed reforms, including several
recommendations from the National Archives' Public Interest
Declassification Board (PIDB), to help streamline our nation's
classification and declassification processes. For example,
investing in advanced technology, such as artificial
intelligence (AI) and machine learning, could help agencies
better manage classified information, better serve the public,
and meet the needs of the future.
Other proposed reforms could help reduce the number of
classified materials and levels of classification, establish
automated declassification tools, and provide an expedited
declassification request process for lawmakers, all of which
would improve transparency and ensure Congress and the public
can help hold Federal agencies more accountable.
I am interested in pursuing bipartisan legislation to help
tackle some of these concerns, and I hope my colleagues will
join me in those efforts. I certainly fully appreciate the
engagement of Ranking Member Paul and his staff, and believe we
can find a bipartisan path forward on these important issues.
I look forward to having a productive discussion with all
of you here today so we can begin this process of reform, and I
look forward to the answers to our questions.
With that I would like to turn things over to Ranking
Member Paul for his opening remarks.
OPENING STATEMENT OF SENATOR PAUL\1\
Senator Paul. Twenty-six years ago, a bipartisan Senate
Commission chaired by the late Senator Moynihan warned that
excessive government secrecy and overclassification have
significant consequences for the national interest. The
Commission found that ``secrecy is the ultimate mode of
regulation . . . for the citizen does not even know that he or
she is being regulated.''
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\1\ The prepared statement of Senator Paul appears in the Appendix
on page 32.
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What happened in the decades since the Commission
recommended Congress reassert its authority and reform the
Executive Branch classification system? The problem got even
worse.
Executive Branch officials from both political parties
continue to arbitrarily overclassify government information to
prevent oversight and withhold information from the public.
Both parties are guilty of this.
According to the National Archives and Records
Administration (NARA), in 2017, over four million Americans
with security clearances classified nearly 50 million
documents, a system that cost American taxpayers over $18
billion. President Biden's own Director of National
Intelligence (DNI), Avril Haines, acknowledged the
overclassification problem on numerous occasions. As Director
Haines said in January of this year, ``overclassification
undermines the basic trust that public has in its government.''
There is no better example of the undermining of public
trust than the Federal Government's continued refusal to share
with the American people information about the origins of the
Coronavirus Disease 2019 (COVID-19) pandemic.
The Department of Energy (DOE) recently shifted its
position on COVID-19's origins, and joined the Federal Bureau
of Investigation (FBI) in concluding that the pandemic was most
likely the result of a lab leak. The FBI Director later
publicly confirmed the FBI's position that the pandemic most
likely originated in a lab.
If not for transparency, if not for whistleblowing, if not
for the media getting ahold of this information, it would still
be classified. Do you realize how crazy it is that they have a
classified a conclusion, not the source, not even the data.
They have classified the conclusion. They were not even telling
us that the FBI and the DOE had come to this conclusion.
Recently, Congress showed strong, bipartisan support for
the need for transparency on the origins of COVID-19 by
unanimously passing a bill requiring the Director of the
National Intelligence to declassify information from the Wuhan
Institute of Virology (WIV) and the origins of COVID-19. I am
glad that President Biden signed the bill into law earlier this
week.
However, President Biden only committed to declassifying
and sharing information ``consistent with [his] constitutional
authority to protect against the disclosure of information that
would harm national security.'' That sounds good, but it also
might be an excuse for not declassifying a lot of information.
Given the Administration's track record on transparency, I am
concerned that the President's statement suggests he will not
publicly release all the information that exists.
It is not just classified information the Executive Branch
is withholding from the American people on COVID origins. Most
of what I have asked for is unclassified and they are still
resisting. Nearly a dozen Federal agencies, including the
Departments of Health and Human Services (HHS), State
Department, Defense Department (DOD), and the FBI refuse to
disclose thousands of records in their possession relevant to
the origins of COVID-19. Many of these records are not even
classified.
I sent dozens of letters for over two years to Federal
agencies requesting these records, only to be stonewalled. In
fact, recently disclosed emails made available by the Freedom
of Information Act (FOIA) actually show Defense Threat
Reduction Agency (DTRA) employees, in private emails, were
scheming to obstruct my request, mentioning me by name, and
saying, ``We are not going to give any information to this
guy.''
The American people deserve transparency and
accountability. If we are being asked to sacrifice those values
in the name of ``national security,'' that definition should be
narrowly tailored to protect only what is necessary to preserve
our sources and methods.
In the Pentagon Papers case, Justice Potter Stewart
remarked upon the wisdom of avoiding secrecy for its own sake.
In his concurring opinion, Justice Stewart wrote, ``When
everything is classified, then nothing is classified. The
system becomes one to be disregarded by the cynical or the
careless and to be manipulated by those intent on self-
protection or self-promotion.''
I want to thank our consensus witness panel for being here
today. My hope is, Mr. Chairman, that we have a unique to
address overclassification by the Executive Branch in a
bipartisan way. I think any reform, though, has to be us taking
back some power. If we leave it up to ``Please, Executive
Branch, please give us information,'' it will not work. There
has to be a hammer and we have to take back some of the power
that originally was ours. We have let it drift away from us and
we have to grab back that congressional authority.
Thank you.
Chairman Peters. Thank you, Senator Paul.
It is the practice of the Homeland Security and
Governmental Affairs Committee (HSGAC) to swear in witnesses,
so if each of you would please stand and raise your right hand.
Do you swear that the testimony that you will give before
this Committee will be the truth, the whole truth, and nothing
but the truth, so help you, God?
Ms. Goitein. I do.
Mr. Blanton. I do.
Mr. Fitzpatrick. I do.
Mr. Eddington. I do.
Chairman Peters. Thank you. You may be seated.
Our first witness is Elizabeth Goitein. Ms. Goitein is the
Senior Director of the Brennan Center for Justice Liberty and
National Security Program, and is regarded as a national expert
in government transparency, Presidential emergency powers, and
government surveillance.
Previously, Ms. Goitein worked as a Counsel to former
Senator Russ Feingold and practiced as a trial attorney in the
Federal Programs Bench of the Civil Division of the Department
of Justice (DOJ).
Welcome to the Committee. You may proceed with your opening
remarks.
TESTIMONY OF ELIZABETH GOITEIN,\1\ SENIOR DIRECTOR, LIBERTY AND
NATIONAL SECURITY PROGRAM, BRENNAN CENTER FOR JUSTICE
Ms. Goitein. Chairman Peters, Ranking Member Paul, and
Members of the Committee, thank you for inviting me here today
to testify.
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\1\ The prepared statement of Ms. Goitein appears in the Appendix
on page 35.
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Overclassification is a fact, not a theory. Insiders have
estimated that 50 to 90 percent of classified information could
safely be made public, as you said, Chairman, and the current
system for declassification has no hope of keeping pace with
the petabytes of classified information that agencies generate
each year.
The harms that result from this State of Affairs are every
bit as real and as serious as those that can result from the
unauthorized disclosure of sensitive information.
Overclassification throws a wrench into the workings of
democracy, it prevents the American people from weighing in on
matters that affect their rights and their security, it
undermines the rule of law by providing a shield for government
misconduct, and it impedes oversight by Congress and the
courts.
Overclassification also harms national security. It limits
the sharing of threat information, both within and outside
government. It also causes officials to lose respect for the
system. That, combined with the sheer volume of classified
information can lead busy officials to cut corners or simply
make mistakes when it comes to the protection of classified
information.
The causes of overclassification are easy to identify.
There are multiple incentives unrelated to national security to
keep information secret. Classifying by rote is easier and
faster than giving careful thought to every decision.
Classification can be a key weapon interforce between agencies.
It can be used to hide government conduct that is illegal,
embarrassing, or just controversial. Perhaps above all,
officials face harsh penalties for failing to protect sensitive
information, but no official has ever faced serious
consequences for overclassifying.
Solving this set of problems will require fundamental
changes to the current system. Although classification policy
is usually set by Executive Order (EO), Presidents have
historically been reluctant to take the bold steps that are
needed. That is why Congress should consider stepping in. The
U.S. Constitution gives Congress shared power with the
President over national security matters, and Congress has
passed many laws regarding the handling of national security
information.
Congress, thus, has ample authority to enact the measures
we will be discussing today. Chief among these is the
development and implementation of advanced technologies to
facilitate declassification and derivative classification,
namely applying markings to information that has already been
designated as classified. There is broad consensus among
experts that we cannot and will not solve the system's problems
without the help of technology. Pilot projects have shown that
the use of machine learning and artificial intelligence to
identify classified information and information that is subject
to declassification has tremendous promise, but getting this
off the ground will require leadership and resources. Congress
can ensure that we have both.
Congress should also direct the President to convene a
committee of senior agency officials tasked with narrowing the
criteria for classification. Original classification
authorities must be able to exercise discretion, but that
discretion should not be unbounded. The criteria set forth in
the current Executive Order are too broad to provide meaningful
constraints.
In addition, pending the deployment of technological tools
for declassification, Congress should authorize the National
Declassification Center (NDC) to declassify documents at 25
years, without lengthy review by multiple agencies. This multi-
agency review is inconsistent with the automatic
declassification required by the Executive Order, and it has
brought the system to its knees, producing long delays and
massive backlogs that will continue to balloon as agencies
generate more and more classified information.
Finally, Congress should build accountability into the
system. It should direct agencies to implement systems to
identify and hold accountable those officials who knowingly,
willfully, or negligently overclassify. The designation of
classified information, proper designation, should be part of
the performance evaluations of all officials who handle
classified information, and agencies should be required to
implement spot audits, which will help to foster a culture of
accountability.
My written testimony includes some other recommendations
but I will stop there for now. Thank you again for this
opportunity, and I look forward to your questions.
Chairman Peters. Ms. Goitein, thank you. Thank you for your
testimony.
Our next witness is Thomas Blanton. Mr. Blanton is the
Director of the National Security Archive at George Washington
University (GWU), where he has served for over 30 years. In his
role he has conducted numerous investigations and published
reports, books, and articles related to government
transparency. Mr. Blanton led the National Security Archive to
be the top nonprofit user of the Freedom of Information Act,
and the Archive has made more than 60,000 FOIA requests to the
Federal Government.
Welcome to the Committee. You may begin with your opening
remarks.
TESTIMONY OF THOMAS BLANTON,\1\ DIRECTOR, NATIONAL SECURITY
ARCHIVE, THE GEORGE WASHINGTON UNIVERSITY
Mr. Blanton. Thank you very much, Mr. Chairman, Ranking
Member Paul and other Members of the Committee. I am here to
make five points in five minutes: overclassification is out of
control; declassification has collapsed; core functions of the
National Archives that could help have been flatlined, budget-
wise, for nearly 30 years, five different Presidents; key
reform tools needed by this Congress and by the public are
shriveling at the National Archives; and the key potential
reform that could modernize the system is putting sunsets on
secrets, on the front end, to force better thinking, and on the
back end, to have automatic release. Those are my five core
points.
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\1\ The prepared statement of Mr. Blanton appears in the Appendix
on page 70.
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I will not belabor the first one, Chairman Peters, Ranking
Member Paul. Liza all made the case on overclassification. I do
not need to go much further except to say one thing: I applaud
that COVID origins bill but it has a giant hole that the
intelligence community (IC) is going to run right through
because the last phrase of it says we leave it up to the
Executive on sources and methods. Congress can do a different
standard on sources and methods. They did it in the John F.
Kennedy (JFK) Assassination Records Review Board. They said you
have to show harm and you have to weigh a cost and benefit
between public benefit, congressional interest, public
interest, and the damage done to any source and methods, but a
flat sources and methods protection, which is built into so
many statutes, is one of the main drivers of the
overclassification crisis.
Declassification has collapsed. Last year, I filed a
Freedom of Information request with the George W. Bush Library,
for one meeting the President had with a bunch of outside
experts, none of them with security clearances, to prep for his
first meeting with Vladimir Putin. They wrote back, ``Oh, we
found 1,600 pages of classified documents on this meeting with
uncleared outsiders. By the way, it is going to take us 12
years to get that into the queue at the National
Declassification Center. So 20-year-old documents and 12 more
years to wait, that is the core argument I would make. You have
to have an automatic sunset or I will never see those
documents.
Third, core functions of the National Archives have
flatlined. We did an audit on the budgets. There are a lot of
different ways to measure this, but we tried to take a
consistent one over 30 years, and we see that five Presidents,
the Congress, and the leadership of the Archives have flatlined
the budget, literally, despite an exponential increase in the
records that the National Archives is responsible for. Bush 41
left 80 gigabytes of records to the National Archives. Donald
Trump left 250 terabytes. Meanwhile, the amount of money
National Archives has to deal with that has been flatlined in
real dollar terms, and that is starting--my fourth point--they
key reform pieces of the National Archives that make a
difference.
This gentleman was the head of the Information Security
Oversight Office (ISOO). It is the best investment that
Congress could make, is to give that office the resources it
needs to be the inside watchdog on the secrecy system. That
office staffs the Public Interest Declassification Board. That
could be your go-to place. When you have a dispute with
agencies on classified records, take them to that board for an
objective judgment. But without staffing, without its own
budget, without terms that continue until a new appointee is
named, that board is withering away.
The Interagency Security Classification Appeals Panel
(ISCAP)--is the best single secrecy forum. It came out of the
1990s. We got to appeal to this interagency group of
bureaucrats when an agency stiffed us, and that panel ruled for
us 75 percent of the time. That is a measure of the
overclassification from the insiders. What they proved, that
panel proved, was you take the decision out of the cold, dead
hands of the originating agencies and you get some rationality.
Right? Seventy-five percent was released.
But that panel has withered away. Its success became its
doom. It is overloaded with requests, a backlog of 1,317 cases.
I am sorry. It does not work. Got to have more resources. Got
to have the Information Security Oversight Office pushing it.
The last, but not least, the National Declassification
Center, it does not work. The original idea was that was going
to be that interagency panel writ large. It was going to have
the authority to declassify. All the agencies would send their
people to that center, to sit at the same table and make
decisions together. It does not work. Huge backlogs.
A recent quote from a former employee, ``The National
Declass Center is afraid of its own shadow. It does not have
the power to push the agencies around so the agencies push it
around.'' Congress can change that and make a difference.
The last point, in my last 20 seconds, sunsets, sunsets on
secrets. On the front end, to force original classifiers to
establish a date. When does the risk diminish? When does it
start to go away? We have had a test on that, this 10-year-or-
less rule. I think it worked. We have not seen it in historic
records, but it could work. On the back end it is only way to
get rid of that enormous backlog of hundreds of millions of
records.
I will leave it there, and in the questions I hope I can
tell you about the machine learning experiment I ran yesterday,
inspired by Liza's optimism about how computers are going to
make a difference, and we will come back to that. But thank you
very much for your attention.
Chairman Peters. Thank you, Mr. Blanton.
The next witness is John Fitzpatrick. Mr. Fitzpatrick
serves as the former Director of the Information Security
Oversight Office, the office within the National Archives and
Records Administration that leads efforts to standardize and
assess our nation's efforts to manage many aspects of the
classification system. Mr. Fitzpatrick has extensive experience
within the Federal Government, including leadership positions
dealing with classification policy. Previously, Mr. Fitzpatrick
worked at the National Security Council (NSC) where he chaired
the Interagency Security Classification Appeals Panel and the
Records Access and Information Security Policy Coordination
Committee.
Mr. Fitzpatrick, welcome to the Committee. You may proceed
with your opening remarks.
TESTIMONY OF JOHN FITZPATRICK,\1\ FORMER DIRECTOR, INFORMATION
SECURITY OVERSIGHT OFFICE
Mr. Fitzpatrick. Thank you, Chairman Peters, Ranking Member
Paul, and Members of the Committee. I am grateful for the
opportunity to discuss the changes needed to modernize the
government's classification system.
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\1\ The prepared statement of Mr. Fitzpatrick appears in the
Appendix on page 85.
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As noted, I served in the U.S. Government for 35 years, all
of it in national security and intelligence, retiring in 2019,
the last dozen or so of those years at the Office of the
Director of National Intelligence (ODNI), as Director of ISOO,
and on the National Security Council staffs of the Obama and
Trump administrations, were concerned for the security and
classification policies of the U.S. Government and their
implementation.
As demonstrated already, there is no shortage of
opportunity for change and improvement in the government's
classification enterprise. I wish to make clear I believe the
possibility for change and improvement of the system is real. I
emphasize how congressional action, and specifically this
Committee's role, is urgently needed to send the demand signal
for that change.
I draw an analogy to the role of the Intelligence Reform
and Terrorism Prevention Act (IRTPA), of 2004, that it played
in instigating improvements to the security clearance process
across government. That law, and this Committee's role in
overseeing its implemented, presented a clear mandate for
change. It required the President to designated a single
official as responsible for driving that change, and
established strict performance measures and reporting
timelines. I played a role in designing the approach and
implementing the structure put in place to respond to those
IRTPA requirements, and witnessed the necessity of having both
the congressional mandate and the single Presidential designee
to drive change.
Any successful effort to modernize the classification
system will require the concerted efforts of top administration
functions to formulate and drive change. Specifically, the
Office of Management and Budget (OMB) and NSC focus and drive
will be required to sustain collective reform efforts among
departments and agencies. I consider it essential that any
legislative mandate should require a single responsible
official be designated by the President as accountable for the
governmentwide effort. Without top-of-government
accountability, prospects for progress are few.
As Tom pointed out, another essential element of reform is
strengthen ISOO's position to meet the challenge of significant
reform. Specifically, deliberate efforts are required to
increase ISOO's prominence within and among the national
security departments and agencies, specifically through greater
utilization by NSC and OMB, and preferably that Presidential
designee.
Increase ISOO's own resources and ensure it has independent
control of same. ISOO's resources have dwindled over time, and
a reform effort such as this would include right-sizing and
empowering ISOO to ensure it is able to meet its mission.
Retaining ISOO's role in administering both the Public
Interest Declassification Board and Interagency Security
Classification Appeals Panel, and designating the ISOO director
to co-lead the development of a technology investment strategy
with OMB and the Office of the Federal Chief Information
Officer.
As the Committee is aware, the proportions of
overclassification are practically immeasurable, and owes to a
range of factors including the decades-long under-resourcing of
the staffs and programs in place at departments and agencies
whose jobs are to consider classification and declassification
actions. I believe that the need to invest in technology to
support improved classification and declassification is the
single most important need in this modernization effort. The
success of reform will depend on the creation of capabilities
in the existing and future information environments across
government. They must utilize emerging and maturing
technologies such as artificial intelligence and machine
learning to facilitate the review of classified current
holdings, to engage classification decisions at the time of
document creation with the intent of thwarting
overclassification, and to suggest new ways to process digital
records and alleviate future backlogs before they are built.
I do not portray these observations about the poverties of
the current system nor the criticality of technological
investment as in any way new, and as the board is already
aware, I also commend the work of the Public Interest
Declassification Board, what it has done to present a menu of
opportunities to achieve strategy change. A prominent and
fortified governance structure could use these ideas to guide
the application of new technological capabilities to achieve
reform.
I will close by thanking the Committee for its efforts and
to bring attention and drive action to these needed reforms,
and I welcome your questions. Thank you.
Chairman Peters. Thank you, Mr. Fitzpatrick.
Our final witness is Patrick Eddington. Mr. Eddington
serves as the Senior Fellow at the Cato Institute, where he
focuses on homeland security and civil liberties-related
issues. He also serves as the Adjunct Assistant Professor at
Georgetown University Center for Security Studies. Earlier in
his career he served as a military imagery analyst at the
Central Intelligence Agency (CIAs) National Photographic
Interpretation Center (NPIC), where he earned several accolades
from the Joint Special Operations Command and Joint Warfare
Analysis Center and the CIA's Office of Military Affairs.
Mr. Eddington, welcome to the Committee. You may proceed
with your opening remarks.
TESTIMONY OF PATRICK G. EDDINGTON,\1\ SENIOR FELLOW, CATO
INSTITUTE
Mr. Eddington. Mr. Chairman, thank you very much. Dr. Paul,
Members of the Committee, my sincere thanks for inviting me to
be here today with some old friends and hopefully some new ones
as well, to offer my views on this absolutely critical issue of
overclassification by the Executive Branch. Let me state at the
outset that the views that I express here today are strictly my
own and do not necessarily represent the views of the Cato
Institute, its management, or its Board of Directors.
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\1\ The prepared statement of Mr. Eddington appears in the Appendix
on page 89.
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I got my first Secret clearance as a young armor officer in
1986, followed a Top Secret/Special Compartmented Information
(TS/SCI) clearance for nearly nine years, as a CIA analyst, as
the Chairman mentioned, and then a Top Secret clearance as a
House staffer for over 10 years. I understand our
classification system and its pitfalls very well.
In my longer prepared statement I provide the Committee
with some key historical background on how we got to this
point, some of which you have already heard from some of my
fellow panelists today--how our government creates and fails to
release, in a timely way, literally millions of pages of
Federal records. You will also find in that statement a lengthy
list of examples where Executive Branch secrecy has been used
to hide major unconstitutional intelligence programs as well as
the failures of those programs and others actually authorized
under the Patriot Act.
Because the Congress has before it the pending business of
whether to reauthorize or let die Foreign Intelligence
Surveillance Act (FISA) Section 702, I want to use my remaining
time to offer this warning.
When The New York Times exposed then President George W.
Bush's illegal Stellar Wind electronic mass surveillance
program in December 2005, he and his key advisors assured the
Nation that the program was both necessary and effective. In
fact, it was neither, something we only learned from still more
New York Times reporting that surfaced, and only through
Federal Freedom of Information Act lawsuits, I will add,
intelligence community inspector general (IG) reports that
revealed clearly that Stellar Wind was an ineffective program
and one that collected data on Americans with no connections to
terrorist groups or hostile foreign intelligence services.
On June 6th it will be 10 years since the Guardian
newspaper published National Security Agency (NSA)
whistleblower Edward Snowden's first major revelation--the
Federal Government's programmatic collection of telephone
metadata on virtually every American. The program made a
mockery, and I use that word advisedly, a mockery of the Fourth
Amendment's individualized, particularized, probable cause-
based warrant requirement.
The Patriot Act's Section 215 telephone metadata program
was also a failure, something former Senate Judiciary Committee
Chairman Patrick Leahy demonstrated in a 2013 oversight hearing
in which after less than five minutes of cross-examination, the
Chairman got then-NSA Deputy Director John English to admit
that contrary to previous NSA claims, that 54 terrorist plots
on America had been stopped by that Section 215 program. The
actual number was zero. It would not be until 2019 that NSA
would finally kill that failed program.
The Executive Branch's reaction to Snowden's revelations
was to once again prosecute a whistleblower for exposing
Federal Government domestic surveillance misconduct. Snowden,
Thomas Tamm, The Stellar Wind whistleblower, and former Army
Captain Christopher Pyle, who exposed long-running
unconstitutional Army domestic surveillance in 1971, to the
late Senator Sam Ervin in his Committee, all acted out of a
belief that the Federal Government's classification system was
being used in a systematic way to conceal illegal or
unconstitutional acts. They developed a contempt for a system
that seemed designed to violate Americans' rights, not protect
them.
As an author and historian, I have a keen interest in
getting the tens of millions of still-classified or otherwise
unreviewed FBI, CIA, NSA, and related agency records into the
public domain, and my statement for the record contains a model
legislative proposal that I believe would accomplish that end.
But even more fundamental to the preservation of the rights
of our citizens is the need for a statutory ban on the misuse
of the classification system to conceal waste, fraud, abuse,
mismanagement, or violates of statute or provisions of the
Constitution. I believe that my proposal would achieve that
goal as well.
I thank the Members for their time and attention, and I
stand ready to answer your questions.
Chairman Peters. Thank you, Mr. Eddington.
Mr. Fitzpatrick, in your testimony you discuss the
exponential increase in digital classified information, and all
our panelists have concurred with that. I am always struck by
the fact we are seeing an estimated 50 million new classified
records each year. It is really hard to wrap your mind around
the sheer volume of that. Most of all, these records are now
electronic, not pieces of paper like think about the rules that
existed not too long ago.
If you could tell the Committee, what are some of the major
challenges that we face in managing classified information that
is digital, specifically?
Mr. Fitzpatrick. Thank you for the question. One of the
reasons those numbers are so high is because, in the post-9/11
era and just with the development of new technology and network
technology in general, we have proliferated secret and top
secret information networks to support the activities of a
larger national security and homeland security portion of
government, and the industrial base that participates in it.
There are simply more ways and more direct ways for the 4.5
million people that have a security clearance to create a
classified record, and the template for every one of them on
those networks says what is the classification level, and it
provides a tool to assist in choosing to classify that record.
It does not say ``does this need to be classified? Yes, no.
What harm would come from this?'' It is simply a digital
recitation of whatever the other document was. An email that
comes to you already classified and I reply, I add no
additional classified information to it, that email is also
marked as classified. In the counts that ISOO attempts to do
with some accuracy, they get harder and harder to do because
you have created, proliferated digital classified items.
That infrastructure and the culture that the users across
government live in is one of protection. Your job is not to
release this information. Your job is to protect this
information. There is a one-way incentive structure in place.
There is a culture change needed that can only come from
the top, that can only be reinforced by policy, practice,
tools, and training. I commend the activities of DNI Haines and
others in government who have begun to utilize the release of
current classified information to influence the decisions that
are made in national security and operational contexts such as
we have seen in the run-up to Ukraine and in dealing with China
as a rising power. That is a signal that it is a possible thing
to consider, but it is only at the highest level that people
are granted the privilege to think that way, and we have to
figure out a way to train people and support the change in
behavior that they can actually question, ``Does this really
need to be classified?''
I cannot tell you how many emails I received back in the
day, when I was living every day in classified, ``Hey, do you
want to go to lunch?'' and somebody has a default classifier.
That is emblematic, I think, of the challenge and the drivers
for it.
Chairman Peters. This Committee will look at all the
different drivers that are involved, but I just want to ask
specifically about one that you mentioned, Ms. Goitein
mentioned as well, artificial intelligence and machine
learning, something this Committee is investigating. We had a
hearing last week about the promises of artificial learning but
also the concerns and the challenges associated with it, and we
have to think that through. You mentioned in your testimony how
machine learning and artificial intelligence gives us a tool to
manage a massive amount of data, which we know that is
appropriate to be thinking about.
But tell the Committee not just the opportunities but talk
to us about the pitfalls of using artificial intelligence and
machine learning to deal with this issue.
Mr. Fitzpatrick. I think the greatest concern would be
where decision rights lay on the product that the AI puts
forth, to whether or not that would require review. If we have
petabytes of data to search through to find the needle that is
of the public interest, and then to have it considered as a
needle found and not thinking about the whole haystack, I think
that is ultimately a decision that rests with a human. But it
has been served up through a process that is trusted and,
demonstrably so in the technological ways, to then say here are
the few needles that you need to think about and the argument
to protect or not protect can be judged based on that.
Chairman Peters. Thank you. We will come back to you a
little later. I want to get Ms. Goitein in here.
You talked about the classification or declassification
process after 25 years and mentioned why we have a backlog that
is not working effectively, in your opening comments. But I
would like you to drill down more. Give us some specifics as to
why that is failing and things that this Committee should
consider changing, and maybe not just having a flat 25 years or
perhaps just enforcing that. I would love your thoughts.
Ms. Goitein. Absolutely. As I mentioned, the Executive
Order says that all information of permanent historic value
must be automatically declassified at years whether or not has
been reviewed, and that is a quote. But in practice, a lot of
the documents do not even get to the National Archives. They
are not even accessioned until the agencies have performed
their own manual review--nothing automatic about it--and there
are nine categories of information that are exempt from
automatic declassification. In theory, that is what they are
looking for.
They are also looking to see if other agencies might have
equities in those documents, and then they will send the
documents to those other agencies. That often happens
sequentially, which adds a lot of time. Some of these nine
exemptions, if you add them all together they cover a lot of
ground, probably too much ground, and some of them are worded
extremely broadly, so they give the agencies a lot of
discretion. If the agencies find a single word that needs to
remain classified that is exempt, that will withhold the entire
document rather than simply redacting that word. That is called
a ``pass-fail approach.''
In addition, there is a statute, the Kyl-Lott Amendment is
what it is called, that requires agencies to do a line-by-line
review of these documents unless they can certify that the
documents are highly unlikely to contain any nuclear
information. These agencies are extremely risk averse. They are
not going to designate large categories of information as being
highly unlikely.
The combination of this sequential, lengthy, manual review
with a pass-fail approach with the Kyl-Lott Amendment means not
only that this process takes years and years, but also that an
extremely unimpressive percentage of documents come out the
other side of this process declassified. Roughly half of
documents that are reviewed end up being declassified, and
there is a backlog of about 600 million pages of documents that
have not even been reviewed. That is what automatic
declassification looks like today.
Chairman Peters. Great. Six hundred million pages, line by
line.
Ms. Goitein. That is a lot of work.
Chairman Peters. Yes. Good luck. So definitely we need
reforms.
Ranking Member Paul, you are recognized for your questions.
Senator Paul. This is a great panel today. We rarely have
an issue where both sides seem to agree on it. I think one
suggestion would be if we were to do a bipartisan bill trying
to fix this problem that we constitute a working group,
including the four members who have testified here today, since
they probably have more experience in this issue than any
Members of Congress, any Senators or any of our staff. If we
had a working committee with these four and a few others, I
think we would avoid the pitfall of having good intentions and
then passing something that does not work, which is a pretty
common occurrence in government.
I think there are a lot of reasons why it does not work.
One of the fundamental things is the separation of power. In
almost everything that we ever do here, where we give an
exemption to the Executive to allow them to have the unilateral
power they use it. It is well intended. We say, ``You have to
do this unless national security superimposes,'' but they
always use that and they will always have the incentive to use
it.
We either have to have congressional power over funding or
some sort of independent agency. I almost would imagine sort of
like a Federal judge or somebody that has judicial experience
to sort of review these but has the power to make the decision.
If the Executive makes the decision it has to be appealed by
Congress, Congress has to somehow be able to override, or
somebody has to be able to override the Presidential decision.
Then the question I had for Mr. Blanton was, you mentioned
there was a committee that was working that was reviewing this.
Was this just old documents, over 25 years, or was this more
recent documents? You mentioned some oversight committee that
seemed to be working that was now backlogged.
Mr. Blanton. The Interagency Security Classification
Appeals Panel.
Senator Paul. ISCAP. OK.
Mr. Blanton. Because it rules for the requestor. It got
totally backlogged because it actually started ruling for the
requestor.
Senator Paul. Was it old, over 25 years, or newer?
Mr. Blanton. Mandatory declassification review, so it can
be new or old. New or old.
Senator Paul. OK. It worked at first but now it is
overwhelmed because they have too much staff.
Mr. Blanton. Because the agencies did not take those
decisions and plug them back into the classification guides.
There was no learning. We had to fight those battles over and
over, the same battles.
Senator Paul. That could be part of the reform
legislation----
Mr. Blanton. Exactly.
Senator Paul [continuing]. Is making sure that those
decisions become a precedent for another decision, another
similar decision.
Mr. Blanton. Exactly. I just point back to your reference
to the Moynihan Commission. The title of that commission was
Protecting and Reducing Government Secrets. It sounds like a
contradiction. It is not. If you protect the real secrets you
have to disgorge the non-secrets.
Senator Paul. I have been to hundreds of classified
hearings and never heard anything classified, and most of the
important stuff is already in the newspaper, and I read about
it in the newspaper, and some of it is ridiculous. The idea
that the FBI and the Department of Energy have concluded that
they think this, in all likelihood, came from the lab in Wuhan
is not a secret. If you had somebody's name, that is a secret.
I have never been to a hearing where I was told the name of a
source or how somebody got something, and really, frankly, I do
not want to know it for any possibility of that leaking. There
are real secrets that we have but almost nothing that is
classified is a real secret.
Ms. Goitein, you mentioned in your written testimony that a
wedding ceremony in Dagestan, cables from that were classified,
what kind of robes they wore and what they did over this
wedding ceremony. That is ridiculous.
But I was told yesterday by the Secretary of State, he will
not give me any cables and he will not give me any information
that is unclassified because the Executive Branch has
unilaterally decided they will not give information unless the
chairman of a committee signs off on it. I have four or five
chairmen I am trying to get to sign records releases. They will
not give any, but who made this decision? Not Congress. Not the
people. They made the decision to protect it.
But this is the problem we have. I want to fix the
classified problem, but even the unclassified information they
are withholding from us. I want to see like government grants
on people who applied for coronavirus research that were
rejected and accepted, and the research proposal that involved
the lab in Wuhan. I cannot get it because they deny this, and
most of it is not supposed to be classified. We have a real
problem.
It is even worse than that. Some committee chairmen will
say, like the head of Armed Services will say, ``We will sign a
request for this information but it is not supposed to leave
the committee.'' There is report that they did in HELP
Committee, and I am on both committees, and I wanted to bring
it over here because I am the Ranking Member. The HELP
Committee is preventing me from bringing that over so Senator
Peters can see it. It is crazy the segmentation of the things
we do.
But I think the best way to fix it is and I really think it
would be a great idea to have a working group of people from
the outside that would help us craft the information so we do
not have the same pitfalls. What I would hate is we do a rubber
stamp of something that looks good, sounds good, and does not
work, and it really has to involve all of this.
The reforms, you talked about having them learn from the
precedents. Any other reforms, Mr. Eddington, that you would
suggest?
Mr. Eddington. An awful lot of what my colleagues have
already talked about I think is essential. But I will point to
previous success stories. We have talked about a lot of
failures here. But things happen when Congress decides they
need to happen. This is how we get the JFK records,
assassination material, out, the Imperial Japanese war crimes
and Nazi war crimes records out. This is stuff coming directly
from the Congress.
That is why, in my written statement, I propose a national
declassification bill, that would mandate, essentially, that
anything that is 25 years older or older shall be essentially
presumed to be unclassified, unless there are very specific
criteria that are met. Now the criteria that I talk about are
drawn from the existing Executive Order 13526. But there are
important words that are not in that Executive Order. Liza has
pointed to some of them. My favorite word is ``current.'' That
word does not appear in there, so that is what gives NSA and
others the ability to hang onto stuff for 50, 75 years, or 100
years. That is the No. 1 thing.
On the issue of congressional prerogatives, let us remember
that the word ``secret'' only appears in the Constitution in
one place. It is not Article 2. It is Article 1, Section 5,
dealing with this body, Congress. Congress was the original
classification authority (OCA). It let that power essentially
slip away to the Executive Branch, and in my judgment that is
exactly the reason we have a problem.
The last group of your colleagues who I think really
understood this well were Senator Church, Senator Tower, and
the others on the Church Committee, because when they were
doing their report they made it very clear to President Ford,
we are going to listen to you when we tell you what we are
going to include in this report, but the final word about what
goes into our product, our committee report, that is us. That
is Congress.
That is exactly the standard you all need to return to. Do
not turn your material, do not turn your reports over to the
Executive Branch and let them tell you what is or is not
classified. You are the original classification authority and
that is in the black-letter text of the Constitution. Thank
you, Dr. Paul.
Chairman Peters. Thank you.
Senator Blumenthal, you are recognized for your questions.
OPENING STATEMENT OF SENATOR BLUMENTHAL
Senator Blumenthal. Thanks, Mr. Chairman. Thank you to you
and the Ranking Member for having this hearing.
We attend a lot of classified briefings, and I would say at
the end of probably more than half of them I say to the
briefers, often very high-ranking members at the Pentagon or in
the intelligence community, ``Our adversaries know we know what
you told us.'' We know our adversaries know that they know we
know. We know they know. They know. The only one who do not
know are the American people, and very often it is information
that is vital to the American people assessing a threat to our
national security. If I began to tell you now what those
subjects are I would get in a lot of trouble. Nobody would
shoot me, but I would be, in effect, shot on the floor of the
U.S. Senate. It would become a major issue--Blumenthal
discloses classified briefing.
The real losers here are the American people, not about
some historic event 25 years ago but about current threats to
our national security, where we could mobilize more support
publicly for defense spending, in certain areas, if the
American people knew what the ongoing threats are.
I am going to be somewhat adventurous here--the information
we get is from aerial surveillance, where companies in the
private sector are already producing the information because
they have satellites just like our military does. I have seen
aerial surveillance of the balloon that went over our country,
the Chinese balloon, which traces it back to when it
originated, not from the Pentagon but from a private company
doing the same kind of aerial surveillance.
The present system is beyond broken. It is actually
counterproductive. It promotes secrecy at the expense of our
national interests and security simply to prevent often
embarrassment to public officials, who would prefer that the
public not see what they are doing. We all would love to be the
final arbiters of what the public knows about what we are
doing, but it does not happen that way in a democracy. I have
seen the history here. You go through it in your testimony.
Nothing has happened after every one of these commissions.
Nothing. None of the Moynihan recommendations adopted.
When we sort of preach here--meaning we on the panel
preach, not you--it really is not necessarily a sign that we
are going to accomplish something now. But I would like to take
some of these recommendations, for example, from the Moynihan
Commission, and propose them in a more comprehensive way rather
than piecemeal, in the way that we have adopted doing it. I do
not know that it would require another commission.
But I would like to know from you if you were to prioritize
five recommendations made by the Moynihan Commission or by one
of the other numerous bodies that have made recommendations,
what would they be? I know we will not have time necessarily to
go into all of your suggestions or recommendations, but it
would be helpful, I think, to get the five things, taking
Senator Paul's apt remark that the experts are here. You do not
need to form a commission with you folks on it, but something
really ought to be done, and the American people want an end to
this secrecy for all the reasons that have been stated in a
very forceful, bipartisan way.
I am happy to begin going down the line. We will run out of
time, and so your written responses, I think, would be very
helpful.
Ms. Goitein. I will try to be quick because I know all of
us are going to have ideas, and I was looking at the list that
I had the summary of the recommendations that I made in my
written testimony and I had basically 10 sets of
recommendations. I was choosing the top five.
But certainly I think we need to start with technology
development and implementation of advanced technologies. You
are not going to find that in some of the older commissions'
reports, but it is key to the success of the system now. I
mentioned in my oral remarks that we should have a White House-
led task force to narrow the criteria for classification, that
we should require agencies to have accountability systems for
overclassification. I think that is very important. There are
other ways, as well, to rebalance the incentives that I
mentioned in my written testimony.
Then reforming automatic declassification by empowering the
National Declassification Center to declassify documents
without lengthy agency review, but also to include what is
called a ``drop dead date.'' This is what Tom was speaking
about earlier. It is a sunset, which is a period of time after
which documents would simply cease to be classified. They would
not have to be declassified.
Then the last one is that I think Congress should amend the
provision of the National Security Act that talks about
protecting against the unauthorized disclosure of sources and
methods, because that provision has been misconstrued to allow
and even require the withholding of sources and methods
regardless of whether their disclosure would actually harm
national security.
Those are my top five.
Mr. Blanton. I totally agree, and I could stop there, but I
would add the top recommendation of the Moynihan-Helms-Combest
Commission was for Congress to pass a statute to authorize the
classification system and take that away from the Executive
Orders that just make a mish-mash of the whole thing, a
statute. Then in that statute, the core principles of that
statute need to be what Liza just said, that any withholding of
any kind, not just classified area but in the unclassified
areas that Senator Paul is talking about, Executive should have
to identify the harm from release and have a balance test
against the benefit from release--cost-benefit analysis, harm
test.
To come back to my own testimony, sunsets on the front end
will compel better thinking by the original classifiers,
because they have to make a risk assessment that right now is
just a drop-down menu. Oh, want to go to lunch? Oh, is that
secret or confidential? That is all it is. It is as reflexive
as the old days when it was a rubber stamp, except it is a
drop-down menu.
A statute and then those balancing pieces on the front end
and on the back end, I think that is the core.
Mr. Fitzpatrick. Very briefly, I would suggest attention to
one of the recommendations the PIDB made in an earlier report
around prioritization. While we are working on capabilities
that can deal with data and paper and digits in the aggregate,
something needs to be done now, or one thing that can be done
now is for the Congress to use its voice to indicate what the
public interest, in the ways that Patrick was talking about
with the JFK assassination records. It does not have to be an
as auspicious and historical event as that, but if there is one
that has not been addressed, put that out there as a priority
for the NDC and the agencies to work on, to show a good outcome
for the classification system. Prioritization is a difficult
challenge, but I think a necessary one for separating the wheat
from the chaff that is in the 600 million pages of unreviewed
documents and other big piles. Thank you.
Mr. Eddington. In my written statement, Senator Blumenthal,
I have essentially model legislation that would do an awful lot
of what Tom and Liza are talking about. I agree with Dr. Paul.
If you put the four of us in a room over a weekend we could
probably give you a pretty nearly finished version of what you
might want to take a look at. I will leave it there.
Chairman Peters. We will be continuing to work--we are
working with all of you so far, and we are going to continue to
work with you so we get something done. We will make sure that
happens.
I need to step away for another committee hearing briefly,
to ask some questions downstairs. Ranking Member Paul will take
the gavel until I return.
Senator Paul [presiding.] Senator Marshall.
OPENING STATEMENT OF SENATOR MARSHALL
Senator Marshall. Thank you, Mr. Chairman, Ranking Member.
I do sincerely appreciate holding this hearing.
As Senators we all take an oath to defend the Constitution,
and what I have seen as Senator that not only am I not allowed
to see much of the information we need, whether it is
classified or unclassified, but certainly America does not.
Whenever we allow the Federal Government to live in darkness,
it is a threat to our Constitution and a threat to our
republic. I way underestimated how important this transparency
issue is and how we are all more accountable when things are
out in the open.
Certainly I am a frustrated Senator right now, and want to
do what we can do--it seems like the de facto position is to
classify things as opposed to the de facto position of let
Americans see it.
My first question is for Mr. Fitzpatrick. Under President
Clinton, it took a year for the NSC senior director to
basically update this overclassification issue. I do not mean
to make you defensive. I am sure you wanted to do something as
well. You had four years to make an impact on this. You had
committees and meetings. What progress did you make? But more
importantly, what were the obstacles for you to update the
classification system?
Mr. Fitzpatrick. I served in the last year of the Obama NSC
and two and half-ish years of the Trump NSC. The Obama NSC, my
time there, that was that administration's Executive Order
13526. It was the State of the order that that administration
wanted, and so it was not a priority to conduct another policy
review on an Executive Order it had issued. Which is not to say
it did not revise--any administration does not revise its own
orders. That was not a priority. In fact, my timing coming into
the administration was focused on wrapping things up for that
administration and the transition to the next.
It was also not established as a policy priority in the
Trump administration. The attention for my office, which came
down through the chief of staff there, did not prioritize that
work.
I point this out explicitly, and point back to my testimony
which suggests that it will take an external force or a
congressional mandate to establish a requirement that the
President prioritize this work and report back on specific
milestones and outcomes. That example worked, and I used the
security clearance reform and example in my testimony. I often
refer to the security clearance reform problem as the No. 1,
second tier national security issue in government, and knowing
that the national security community never gets out of tier
one.
Overclassification, my opinion and estimate, is a tier
three issue. It is a peripheral activity in government. Without
somebody taking that and putting it at the center and within
the focus of leadership----
Senator Marshall. Is it a priority for this Administration,
do you think?
Mr. Fitzpatrick. I am not able to speak for this
Administration. I am familiar that they have issued some
guidance to agencies to bring ideas forth but I am not familiar
with the status of those.
Senator Marshall. Mr. Blanton, my next question is for you.
Would a two-tiered classification system work better than the
current three? If so, would you force agencies to move all
information currently classified as Confidential down to
Unclassified or Unclassified for Official Use Only (OUO), as
opposed to raising it to Secret? Would that diminish
overclassification?
Mr. Blanton. That is a great question, Senator. My view is
we have to disgorge the confidential level material, not just
change the label on it. It goes back to something I mentioned
to Chairman Peters at the very beginning. Yesterday, inspired
by Liza's optimistic belief in machine learning, I asked Chat
Generative Pre-Trained Transformer (ChatGPT) your question--how
should we modernize this nation's information security system.
Senator Marshall. I have been waiting for this.
Mr. Blanton. Let me tell you, answer No. 1, this system is
way too simple. It does not even begin to comprehend the
multiple threats that we face, such as in cyber, that a limited
number of labels. We need more of them. Then it ended with an
error message.
We tasked it again. The second time ChatGPT says no, the
problem with the security classification system is there are
three levels of secrecy. There should only be two, Secret and
Top Secret. Did not get an error message after that.
Senator Marshall. This system agrees with Senator Marshall,
it sounds like. All right.
Mr. Blanton. The problem there is just simply the
bureaucratic imperative that we have all heard about.
Senator Marshall. Thank you so much. I am going to go back
to Mr. Fitzpatrick. Why is ISOO been so ineffective overseeing
the classification system and holding agencies accountable for
overclassification?
Mr. Fitzpatrick. I think it is challenged on a resource
basis. In order to actually oversee the activities of the
classification system it is necessary to measure them, which
ISOO does, but it is also necessary to go and visit agencies
and conduct inspections and see exactly how the numbers that
come back in reports are arrived at by the agencies. The
staffing levels of ISOO have been reduced to a point where it
cannot do that effectively.
Senator Marshall. OK. Yes, my next question, I will go back
to you, Mr. Fitzpatrick, and others can chime in if they want
to. How can we ensure that the United States government
releases all the JFK records in our lifetime? This seems to be
the bar that America--if this is shrouded in secrecy, this sad
chapter of America's life, if this is shrouded in secrecy,
everything else is as well.
Mr. Fitzpatrick. I suppose a review of those statutory
requirements in that law, in light of the releases that have
come and the withholding that has resulted from that guidance,
might produce a different set of criteria to force the outcome
that you state.
Senator Marshall. Mr. Eddington, would you add anything?
Mr. Eddington. Senator, you and your colleagues have the
power, if necessary, to provide additional funding, if that is
a problem. I do not know if that is necessarily the case or
not. But if there is any doubt as to whether or not additional
information is out there, give them a drop-dead deadline. I
think Tom and I have a mind meld, a Vulcan mind meld on this
practically. Give them an absolute deadline on this stuff.
I have to say, I am an Article 1 guy. Have the Government
Accountability Office (GAO) literally climb all over them and
take a look at whether or not they have actually been as
thorough as they should have been in looking for documents.
We do not have enough--and Tom has talked about this a
lot--we do not have enough back-end checks on this stuff. This
is why we have a problem with surveillance in this country. I
hate to keep coming back to this. I know this is supposed to be
about dealing with the classification system. But there is
almost never enough back-end checks on this stuff, and not
enough auditing. That is one of the reasons why a lot of time
you all end up legislating in the dark. You have an opportunity
to fix that here if you choose.
Senator Marshall. Thank you, Mr. Chairman. Thanks so much
to the panel. Great answers.
Senator Paul. Senator Hassan.
OPENING STATEMENT OF SENATOR HASSAN
Senator Hassan. Thank you, Ranking Member Paul, and thanks
to all of our witnesses for being here today.
I want to start with a question to Ms. Goitein, please.
Government's top priority is to keep its citizens safe, secure,
and free. Classifying certain information is important to
protecting national security such as intelligence sources and
methods, to be sure, but this Committee has also heard from
experts in the public and private sectors about the challenges
with information sharing between government agencies and
critical infrastructure owners and operators. When we think
about cyber in particular right now, what I hear from the
private sector is, ``We cannot get any information that would
help us do what we need to do to keep safe.'' It is information
sharing necessary to help prevent terrorist attacks, combat
cyber threats, and more.
In your experience, Ms. Goitein, how have you seen
overclassification inhibit information sharing that is critical
to public safety and security?
Ms. Goitein. Thank you for that question. I think it is a
major problem, and in fact, the 9/11 Commission talked about
overclassification and how overclassification had actually
stood in the way of sharing information among intelligence
agencies that could have helped to prevent the attacks. We paid
a heavy price, possibly, for overclassifying information.
What the 9/11 Commission pointed to was a culture of
secrecy that is a relic of a Cold War, and that culture, which
pervades a lot of the agencies we are talking about, is rooted
in assumptions from the Cold War about who the enemy was and
what we had to do to protect ourselves against the enemy that
no longer hold. As you are pointing out, in today's threat
environment sharing information is often critical to protecting
national security. That really is an enormous problem, and it
raises its head in all kinds of areas. My written testimony has
some other examples of situations where failure to share
information has been problematic.
I also, if I could, want to briefly respond to Dr.
Marshall's question about whether this is a priority for this
Administration. I did want to point out that the National
Security Council last June began an interagency process to look
at the Executive Order and the classification system. That
process, at least at the time, was given a year. If this
Administration comes out with an Executive Order that includes
all the reforms we are talking about today in June, that will
greatly diminish the need for legislation, although Congress
will still need to ensure that there are adequate funds.
However, if it appears that no such order is forthcoming in the
near future, or in the foreseeable future, or if the order does
not have adequate reforms, then again that is the situation
where I really think Congress needs to step in to protect
democratic accountability, the rule of law, oversight, and as
you said, national security.
Senator Hassan. I appreciate that very much, and that is a
good marker for us to look at.
I want to talk to you too, Ms. Goitein, about the financial
costs here. I am Chair on the Subcommittee on Emerging Threats
and Spending Oversight (ETSO), which is tasked with protecting
and saving taxpayer dollars. Toward that end, I am concerned
about ways in which overclassification of Federal documents
contributes to waste, fraud, and abuse.
What are the financial consequences of overclassification?
Specifically, what factors contribute to those consequences?
Ms. Goitein. Overclassification greatly increases the
amount of effort and resources that need to be put into
protecting the information. It also requires costs to be spent
on clearing secure personnel. I think the reason we have over
four million people who have security clearance to access
classified information is because even people who are
performing relatively low-level or non-sensitive tasks actually
need a clearance to do their work.
Certainly the systems that are used to process classified
information, the physical storage for classified information,
all of these cost money. I think we do not even know how much
money they cost. The last figure that we have, which is from a
few years ago, I think, is $18 billion, but the director of
ISOO has flagged, in various ways, that he is not confident in
the accuracy of that information. I think it is likely to
actually be much more than that.
Of course, we are not talking about the indirect costs, the
inefficiencies and the weaknesses in some of the policies that
are a result of information not being shared and vetted and
improved through transparency and public participation.
Senator Hassan. Does overclassification allow Federal
agencies to hide waste, fraud, and abuse?
Ms. Goitein. Absolutely. It is one of the main reasons, I
think, why the classification system is misused.
Senator Hassan. I want to follow up with you on that, but I
want to get to a couple more questions. A question to Mr.
Fitzpatrick. The backlog of government documents that are
overdue for declassification is large, as you have noted, and
likely too big to be addressed by human review alone, as we
were just talking about.
You touched on this already with Senator Peters and with
Senator Marshall, but we have talked about technology solutions
that can assist Federal workers in addressing the backlog
without jeopardizing ongoing security matters. Based on your
experience in the Federal Government, which Federal agency
should lead or be involved in developing these technology
solutions?
Mr. Fitzpatrick. Thank you for the question. It is
incredibly important. I believe that the information technology
budget of the U.S. Government is already spending dollars on
artificial intelligence and machine learning. One of the
challenges here is to take the solutions that are being built
for other purposes and apply them to this problem. It would
take somebody at the Federal Chief Information Officer (CIO)
level, and my recommendation, guided by an ISOO director that
is charged with the responsibility to say, ``Listen to these
agencies. They are starved of these resources. If they had
them, here is what they would do.''
The ideas are there, the technology application is, I
think, the key thing, and it has to happen from the OMB budget
level.
Senator Hassan. OK. Thank you.
One last quick question to Ms. Goitein. You testified that
the Federal Government's current incentive and penalty
structure encourages individuals to err on the side of
overclassifying information rather than declassifying
information. At the same time, classification obviously is
essential to protecting national security.
How do you recommend striking the right balance between
reducing incentives to overclassify while protecting our
national security?
Ms. Goitein. I think we would have to go a long way in the
other direction before we had to worry that we were making it
too easy for people to not classify information. I think there
is a lot of room to work with.
I do think, absolutely, there need to be administrative
penalties for mishandling classified information, failing to
protect classified information, in cases where it is quite
clear that that information required protection.
But one thing that I think does need to be done is to
provide a safe harbor for officials who make good-faith
decisions not to classify or not to mark information in
situations where the classification status of that information
truly is ambiguous. Right now I do not think officials feel
free to exercise their judgment, their reasonable judgment, in
that direction.
Then on the flip side, as I was saying earlier, we need to
have some kind of accountability for people who are misusing
the classification system for reasons unrelated to national
security.
Senator Hassan. Thank you very much, and thank you, Mr.
Chair.
Chairman Peters [presiding.] Thank you, Senator Hassan.
Senator Lankford, you are recognized for your questions.
OPENING STATEMENT OF SENATOR LANKFORD
Senator Lankford. Chairman, thank you. Thank you all for
bringing your testimony. Really appreciate your engagement. I
was able to sit in earlier and be able to hear your oral
statements, as I am back and forth in multiple hearings today.
I appreciate your engagement and your thoughtfulness on this.
A quick story. I went to the National Archives several
years ago and I said, ``Show me something that people do not
get to see.'' They pulled out a hand-done drawing of Pearl
Harbor, and it had X's on it and markings on it. I said, ``What
am I looking at?'' They said, ``This was a radar operator at
Pearl Harbor that was tracking the Japanese coming in, and
everywhere there is an X is when he radioed in and said to the
folks at Pearl, ``I am picking up a radio signal.'' They
signaled back, ``It must be people flying in from California.''
There were like five X's and then it stops. They said, ``This
document was highly classified for decades because it showed we
knew the Japanese were coming and missed it, so it stayed
classified for decades. Here it is.''
It was interesting dialog and it was also an educational
moment for me to be able to hear classification and how it is
used historically and how it can still be used today.
My questions are on a couple of things on this. There is a
flip side of this. There are covert operations that do happen
that protect our national security worldwide, that some of them
do last decades, and as long as we have that penetration it
stays classified. If we do an automatic declassification in 25
years that can threaten covert operations, but we also have the
Pearl Harbor map that it is just someone trying to cover up
their mistake as well, that is out there.
There are multiple layers of classifications. You have
Sensitive, you have Classified, you have Top Classified, you
have Covert Operations, you have Compartmented, you have all
these different pieces here. How do we strike a balance on
automatic declassification and still protect covert operations
that are still ongoing?
Ready, set, go.
Mr. Eddington. As a CIA guy, why don't I go first, or
former CIA guy. I will go first here.
I wholeheartedly agree with you, Senator Lankford, which is
why, in the proposal that I have put forward--and I will just
talk about confidential human sources.
Senator Lankford. Yes. You have family members that can be
exposed. If that person is gone their family is still around.
Mr. Eddington. That is exactly right. In my proposal I am
focusing here on current confidential human sources, and by
``current'' I mean whereby they have provided information on
criminal activity, let us say in an FBI or other law
enforcement context, or information of a foreign intelligence
value within the last five years.
Now, if that is the case, that is going to get extended out
for a very long period of time so long as that is an active
source. It is possible that we would need to talk about maybe
some tweaks to what I have discussed here, but I think that
kind of approach that recognizes that when something ends and
there is no life at stake, if you will, the information ought
to be available in a much more timely way than it is right now.
But I absolutely take your point with respect to covert
action, and I want to make sure that obviously we do not go
anywhere other than the unclassified here. There are absolutely
activities that take place that do stretch literally over
decades, and we would want to make sure that those kinds of
activities are protected.
That being said, one of the cores of my proposal here
involves an absolutely prohibition on using the classification
system in any circumstance to hide waste, fraud, abuse,
criminal conduct, et cetera. I think you need to have that in
place because as Liza has indicated--and I have many examples
that I can share with the Committee--the classification system
has been repeatedly misused to conceal those very kinds of
things. That is my quick take on that. Thank you.
Senator Lankford. Yes, ma'am.
Ms. Goitein. The solution that I have advocated for
declassification involves removing multi-agency equity reviews
at the 25-year mark, but not getting rid of the exemption at
that point. I have advocated having this steering committee,
this working group, led by the White House, narrow those
criteria because I think they are too broad, but certainly some
of the examples you were giving, those would still be exempt
from declassification. We just would not have a multi-year,
endless process and these open-ended exemptions that result not
enough information being declassified.
Even the drop-dead date that I mentioned, which is further
on in time--roughly 40 years is what I put forward--even at
that point there would be categories of information that should
be exempted. Those would include confidential human sources and
key design concepts of weapons of mass destruction, and there
would be an option for agencies to seek case-by-case exceptions
beyond those, that could be approved by ISCAP. But the key
distinction there, again, is that the information would not
have to be declassified. If it did not fall within one of these
exceptions that I have mentioned, it would simply cease to be
classified, and that is the key there.
These solutions that we are talking about would absolutely
preserve the government's ability to keep secret the very
narrow category of information that really does need to still
be secret after 25 or 40 years.
Senator Lankford. We have had a new designation show up
recently on documents that get brought over to our staff. It
has ``For Official Use Only (FOUO), Law Enforcement
Sensitive.'' The first time we saw it we were like, ``What does
that even mean?'' This is not something that is in a sensitive
compartmented information facility (SCIF). This is just
something that appears as a new designation. Magically, there
is a new setting, and basically like, we do not want this out
so we are going to create a designation for this.
Now we have done what we should do with that. We have
ignored that and said, ``That is not a real designation on
it.'' But there is this constant push to say we are not going
to be able to get information out and we do not want it
released out to the public on it.
We understand the challenge that we are on, dealing with
any administration. I do really like the concept of having a
place of appeal, basically. I do not know how many documents
that we get that are redacted, that the whole page is black,
basically, with redactions on it, and we have no place to
appeal to go fight for it. Often we end up FOIA-ing the
documents, or some outside group does, and they get it and we
do not, on it. That is absurd on it. But to have a place of
appeal that is set up, what we were talking about before, would
be helpful so we are not fighting an agency, saying, ``It is my
document and I will tell you what is classified and what is
not.''
Mr. Fitzpatrick, you are leaning on the button like you
want to say something.
Mr. Fitzpatrick. I think you make an excellent point about
the realm of information control that happens outside of what
is defined as classified national security information. I was
smiling at your words because there is not a defined meaning
for FOUO. Again, to the point Liza made about the post-9/11
information sharing, connect-the-dots efforts that happened in
the early 2000s, realizing that the challenge of too much
information control blinded, perhaps, our ability to see this
threat coming.
But the discovery of that as a problem, the study, rather,
of that as a problem revealed that there are 118 different
FOUOs. The Bush Administration had some recommendations about
controlled unclassified information. The Obama Administration
had a different take that tried to limit the ability of a
government agency to utilize a control like that and to make
them more uniform.
What was discovered in that process, which was to say only
agencies who have a law, regulation, or governmentwide policy
can put controls on information, if it says you can control
this information, only you can do that, the number of times
that that appears in statute and regulation is far more than
anybody thought, and the oceans of information that it covers
is far more than anybody thought. What was hoped to be a
limiting and a transparency initiative actually uncovered this
vast ability to control more, or what could be controlled. It
has not succeeded in releasing more information.
Senator Lankford. OK. Thank you. Thank you, Mr. Chairman.
Chairman Peters. Thank you, Senator Lankford.
Senator Johnson, you are recognized for your questions.
OPENING STATEMENT OF SENATOR JOHNSON
Senator Johnson. Thank you, Mr. Chairman. Senator Marshall
brought up the JFK files. I would recommend that anybody that
is interested in that to read JFK and the Unspeakable by James
Douglass, and you will find out why the agencies are probably
still reluctant to actually release more of that information.
Again, that is information from yesteryear that is important to
reveal the truth about history.
I want to talk about information in the here and now, that
we need to govern action in the here and now, to fix problems
in the here and now. Let us also set aside classified
information. Let us talk about unclassified information that we
do not have access to. Mr. Douglass talked about how Congress
has willingly given away its classification authority. We have
also allowed our oversight capabilities to completely atrophy,
or almost completely atrophy. We have allowed that to happen.
There is no enforcement mechanism.
I want to use the example I used yesterday in the Senate
Finance Committee with Secretary Becerra. I asked him, ``First
of all, Mr. Secretary, do you think it is important that we
understand where the coronavirus came from?'' He said,
``Absolutely.'' I said, ``Is your agency, HHS, are you leading
an effort to determine that?'' He kind of said some
gobbledygook and then he said, ``But we are not getting
cooperation.'' I said, ``Well, interesting you said that. We
are not getting cooperation from your agency.'' Then I gave him
a couple of examples.
There are two areas that the American public can get
information out of the government. One is FOIA requests, and
unfortunately that often has to go through a court and have
that be court-ordered, although it should not be, and then
through congressional oversight, right? I have two examples of
both.
This was a document--these are the famous Anthony Fauci
emails, OK. Through a FOIA request people got them early, and
what we did is shortly after we had five Members of this
Committee--there is actually a law, 5 U.S. Code (USC) 2954,
that says if five Members of this Committee requested
information, the government shall provide it. Under that
statute we wrote the letter. We got this document, OK? This is
dated February 4th. The classification here is Exception 4, is
why it is redacted. That has to do with trade secrets or
confidential commercial or financial information.
This is the same document recently produced under FOIA, to
the general public. It is not redacted. Now I know what is
under the redactions. ``Serial passage in ACE2 transgenic
mice.'' That is what was covered up. Anthony Fauci with a
question mark, is going, this is not--February 4th, he is
already recognizing that maybe the coronavirus came from a lab,
from experiments with those humanized mice. That was denied
Congress in our oversight capability.
A couple of days earlier, a similar type of thing. This is
what we got in congressional oversight, all redacted. This is
what was obtained under FOIA request. Again, we can see under
the redactions now, again, not because the agency gave it to
us, but because a court ordered it.
It is interesting. This is classified under Exception
Number 5, which is deliberative process, inter-or intra-agency
communications. What is interesting about this email chain, it
includes Jeremy Farrar of the Wellcome Trust. He does not work
for a U.S. Government agency. You have already blown the
privilege in terms of confidentiality. Again, they are not
following the law.
Through the accommodation process we asked for all 4,000
pages. We narrowed it down to 400. They would not give them to
us. They allowed us to read it in a reading room. We could take
notes, no copies. Over the course of a year, up until about
January 2022, we got 350 of the 400 pages we requested. Since
January 2022, we have been fighting tooth and nail for the last
50 pages.
This is what the FOIA request got, OK. This is what it
looks like. OK? There is obviously some important information
in this last 50 pages, and we cannot get it.
Now I will say the only reason we got the 350 pages is
because Chairman Ossoff, to his credit as Chairman of the
Permanent Subcommittee on Investigation (PSI)--I am Ranking
Member--signed a request for these documents and then made some
phone calls to start the process of production to us.
My message is mainly targeted or directed to Chairman
Peters and Chairman Blumenthal. Congress has to reclaim its
oversight capability. We need some kind of enforcement
mechanism. I would love to pass a law, but again, we have laws
on the books. They are not complying with the laws. They are
flagrantly not complying with the laws. But there is no
enforcement mechanism. They know that. The Administration knows
that, so this problem just gets worse.
The only mechanism we have right now is public pressure
obtained by bipartisan efforts. My plea, Mr. Chairman, is join
us in these requests for information that the American public
deserves. There should be nothing partisan about the origin of
COVID. Our response to COVID occurred under two
administrations. There is nothing partisan about that. This is
information the public deserves to know, but also policymakers
need to know so we can act, so we can fix problems, because I
do not think anybody can take a look at our response to COVID
and say it was a dramatic success. No, it was a miserable
failure.
Mr. Eddington, the question I have for you is, particularly
in a political environment, when you have the White House
controlled by one party and a branch of Congress controlled by
that same party, If the Administration gives us the middle
finger there is just no enforcement mechanism. We cannot even
hold them in contempt. If we are to hold them in contempt, if
you have a political party in one chamber able to do that, the
Department of Justice is not going to prosecute that.
What kind of enforcement mechanism can we have for Congress
to reclaim its oversight authority?
Mr. Eddington. Senator Johnson, thank you very much for the
question. The impeachment mechanism can be used against any
civil officer of the government, from the President of the
United States on down to the most lowly general service (GS)-5
clerk.
To borrow your paradigm here, one of the things that
frustrated me when I worked in the House of Representatives was
learning that when Speaker Pelosi had the opportunity to put an
end to the Stellar Wind program, the illegal, warrantless
surveillance program, which FISA Section 702 is the grandchild
of, she claimed that she had no authority to act, she did not
have staff in the room, et cetera, et cetera, et cetera. She is
a very bright woman, a very capable woman.
What I could not understand for the life of me is why she
did not ask for everybody's business cards. Now you are
probably wondering why. After she had collected those business
cards she should have thanked them and said, ``I just needed to
make sure that I had your names right so I could get them
spelled correctly by legislative counsel for the impeachment
resolution that I am going to introduce against you, all of
you.''
Respectfully, and I do mean this respectfully, you do have
a tool, and I would be willing to bet that a certain gentleman
from Ohio, who happens to be heading up a specific subcommittee
or committee in the House of Representatives, would probably be
willing to work with you to begin to incentivize bureaucrats
within the Executive Branch, to follow the law. That is my
recommendation, sir.
Senator Johnson. Thank you, Mr. Eddington.
Chairman Peters. Thank you, Senator Johnson.
Ranking Member Paul has some remaining questions you are
recognized for.
Senator Paul. I join Senator Johnson in hoping we can get
bipartisan requests for records. One of the arguments to do it
on our side is the records eventually are going to come out on
the other side, and basically Republicans only are going to
lead the charge and the explanation and the expose of those
records. If we were to do it on this side, in a bipartisan way,
we would be able to access those records, and there would be
another interpretation, both of us, together or separately, of
these records. If we have to wait until the other sides gets
out it will look like we have stonewalled them, they get the
records, but then it is going to be all basically a Republican
investigation.
One other item I just wanted to get to was while we all
seem to agree on the problem, we all seem to agree on a lot of
the solutions, the one thing that sometimes divides us is how
we pay for things, and there was some mention of needing more
resources. I think that is dollars.
When we look at this, it is my hope that instead of always,
we just say, ``We need $10 billion more,'' well, where is
someplace we could actually take it from? I hope you will think
about that.
I think that it was sort of tangentially mentioned, if you
have a sunset on things that might save some money because you
do not have to go through a gazillion records because you have
sunsetted them. We might want to put a dollar aspect on that.
If we are developing a bill over many months, let us put a
dollar amount on automatic sunsets and getting through a lot of
that. That could be a lot of savings that could be freed up to
go to committee that has to review this, that does not have
enough resources.
Also if we classified less on the front end. Now how do you
get the Executive Branch to classify? One other thought I have
is that maybe each executive branch that classifies things, it
should come out of their existing budget. What if the budget of
HHS--I do not know why they would be classifying things, but if
HHS wants to classify things maybe they are going to say, ``Oh
no, it is going to cost me a billion dollars of my budget to do
it,'' so it is a disincentive to classify. But ways of shifting
cost as opposed to all being new costs. I am not opposed to
some cost, but I think if we can take it--we already give a
gazillion dollars to everybody. Let us try to take something
they are using inappropriately and make it used appropriately.
Does anybody have an idea on that? Eliza?
Ms. Goitein. Yes. I think it is really striking that the
security classification budgets that agencies have are devoted
overwhelmingly to classifying and protecting information and
not to declassifying information. The percentage of those
budgets that are spent on declassification, the last set of
statistics that are available I think the percentage was half
of a percent is spent on declassification.
One possibility is to require 10 percent of an agency's
security classification budget to be spent on declassification,
right there. That not only means more resources for
declassification, it also means less resources for
classification. It kind of takes on both.
I do not think that will be enough. I think there will have
to be extra resources. But as you have pointed out, I think
there are enormous savings on the back end of this as well, and
we have to take that into account.
Chairman Peters. Thank you, Ranking Member Paul, and I
agree. I think this is a cost-saving mechanism, although there
might be some transition cost if we are moving to AI systems,
machine learning, and we have to explore the pros and cons of
all of that as well, but you will need some investments. You
have to sometimes make investment to save money, and as we are
thinking that through I think is important, so thank you.
Keep thinking of those ideas. We are all about saving money
and doing things more efficiently and thoughtful, and we
appreciate the four of you continuing in this discussion. We
will aggressively seek you out as we are working on legislation
in a bipartisan way to accomplish this.
I want to first off just thank Ranking Member Paul, again,
for holding this hearing with me here today. I would also like
to thank all of our witnesses. Thank you for taking time and
joining us in this very important discussion and for providing
further insights into how we improve the classification system
to improve both transparency and efficiency.
Today our government creates a greater volume and variety
of classified documents than we ever have in history. As we
heard from our witnesses, overclassification, outdated
technology, inefficiencies in declassification all result in
significant costs to the country, and an outdated
classification system reduces public trust, inhibits government
oversight, and threatens, quite frankly, our national security.
Today's hearing has made clear that investing in
technology, like artificial intelligence, making classification
and declassification work more efficiently, and incentivizing
transparency can restore trust in how the government safeguards
sensitive information. Additionally, your testimony has shown
that Congress must take a more active role in the
classification policy, and as Chairman I am committed to
working on bipartisan legislation, and I look forward to
working with Ranking Member Paul on these issues in the coming
weeks and months.
The record for this hearing will remain open for 15 days,
until 5 p.m. on April 7, 2023, for the submission of statements
and questions for the record. This hearing is now adjourned.
[Whereupon, at 11:34 a.m., the hearing was adjourned.]
A P P E N D I X
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