today. i'm here to make three points. one of is a thank you for the freedom of information act amendments that you all mentioned because it's a model of what you can do on classification. second is to reinforce the message of that moynihan commission report. it was actually moynihan, comebest, jesse helms, john podesta commission. you can tell when it's unanimous bipartisan, it's something to pay attention to. the number one recommendation was to pass a law, to govern and fix the system. the third thing i'm here to tell you is that when security officials tell you something is classified, don't believe 'em. most of the time, they're wrong. 50 to 90% of the time, as the chairman commented, they're wrong. so don't believe 'em. i'm going to back that up with a few examples. but first, the freedom of information act amendments and why that's a model. you've already had an impact. y'all, this committee, was the leaders in this house of representatives to get those amendments passed. and already, the central

intelligence agency has released its bay of pigs draft history that they locked up for 30 years. on what grounds? well, when you read it, you find out the grounds. the historian who wrote it and drafted it said, after more than 20 years it appears that fear of supposing the agency's dirty linen rather than any significant security information is what prompts continued denial of requests for release of these records. that's the norm in the bureaucracy. your amendments broke this loose, the cia historian wrote on the backs, well, shucks, recent 2016 changes in the fr d freedom of information act requires to us release some drafts. you did it by statute. that's the congress's role. you can do it to the classification system. and i recommend the detailed list of recommendations in the back of this extraordinary report, the moynihan-comebest report, for how you can do that.

you can build in cost-benefit into the originating classification decision. you can build in assessments of what's the real risk, what's the real vulnerability, what's the stream of cost to the public and to efficient government operations from classifying? you can do that on the front end. you can build in a declassification board with a power to release to you get a rational declassification system on the back end so the system doesn't get completely gummed up with unnecessary secrets. you can move those 50 to 90% of what shouldn't be secret out to the public. you can do that. but you got to do it by statute, as bill leonard says, the government is not going to fix itself. you've got to do it. my third point is, just don't believe 'em on classification. last month we get a nice, you know, letter from the joint chiefs of staff in answer to a freedom of information request. that's the document they gave us. it's all blacked out, because releasing it will damage our national security. seriously damage. this is at the secret level,

right? it was fascinating, because our staff person took a look and said, whoa, that's the joint chief's advice on a presidential policy directive back in july of 1986, that looks kind of familiar. he flipped back in the files. turned out we got it in 2010, in full. that made us go look at the cover letter. you know what the cover letter says? it says, we have coordinated your freedom of information review in consultation with the joint staff and the national security counsecil. it says osd and nsc have no objection to declassification in full. however, mr. mark patrick of the joint staff things it ought to be classified and thus you've got the black blotches. classic case. one office doesn't agree with another office. one says it's been released for six years.

another says it's going to damage our national security. attached to my testimony i've got another bunch of examples. it's the same reviewer, one week apart, when diametrically opposed views on what would damage our nation by release. mr. chairman, ranking member, don't believe 'em. thank you very much. i welcome your questions. >> thank you, we love your passion, it's good. mr. amey? >> that's a tough act to follow. good morning, chairman chaffetz, ranking member cummings, and members of the committee. pogo recognized the difference and has developed new ways to conceal information. impede sharing. and harm efforts to identify and remedy waste, fraud, and abuse. the 9/11 commission said it

simply. secrecy, while necessary, can also harm oversight. sometimes the result of classification is not for the legitimate need of secrecy but the concealment of embarrassing information which creates public distrust. there are five main points i would to briefly discuss today. overclassification, retroactive classification, controlled unclassified information, treatment in handling cases, and finally, exclusive branch use of secret laws. in overclassification, overclassification might be a form of either excessive redactions or improper markings. reports by the national security archive and isu show that the classification process is mostly heading in the right direction and we have seen some improvement over the last few years, especially considering the amount of electronic documents that have to be reviewed. but one number is a concern. in 2015, classification decisions were overturned in whole or in part in over 50% of

the challenges. that was 411 cases overturned out of 814 decisions that were made. additionally, we've heard stories about the lack of clarity and authority and standards leaving different agencies to come to different collection, as mr. blanton just discussed. they're also concerned about the lack of clarity, what constitutes intelligence sources and methods which also can lead to overclassification. finally, classifications aren't free. as the chairman mentioned, total security classification costs competed $16 billion back in 2015. the moynihan commission had an excellent recommendation to improve the system. classification decisions including the establishment of special access programs no longer be based on damage to national security. additional factors such as cost of protection, vulnerability, threat risk, value of the information and public benefit from release could also be considered when making

classification decisions. we're in agreement such factors should be considered to reduce exclusive branch secrecy. on the issue of retroactive classification, for years we've expressed concerns about questionable activities to retroactively classify government information. we have firsthand experience because we were involved in instances of area 51 and unclassified briefings to members of congress in a whistle blower retaliation case. we believe any reviews should include a comprehensive look at issues affecting retroactive classification including failures in the system to classify the information appropriately, how frequently it occurs, what considerations were given to the information, if it's publicly available, and what constitutes constitutional issues relating to prior restraints. on the issue of controlled unclassified information, there's been a proliferation of cui. and by 2010 there were over 1 hundred different cui markings within government agencies.

we've specifiwitnessed examples misuse and we hope the committee will consider providing oversight of the implementation of the recently released cui regulations. we've even recently heard an example, it was something that we had complained about during the process, that employees at dhs when they were given a foia training were also instructed that if they have a foia that comes in and the information is marked cui, it should not be released. so that's opposite to the executive order that the president issued, as well as the language that is in the final regulation. unequal treatment in handling cases. in the past few years we've witnessed numerous instances of mishandling of classified or protected information. i go into more detail in my written testimony. we think that if an intent is considered in high profile cases involving senior officials, it should also be considered in whistle blower cases.

we have voiced many concerns about the executive branch use of secret law. how we come to collection nclus striking the right balance between security and our rights is imperative. secret law poses a serious harm to our democracy. our written recommendations are in our written testimony. but i think there is one issue and point that the 9/11 commission made that is important about nurturing, that the current system nurtures overclassification. there are no punishments for not sharing information. agencies uphold a need to know culture of information protecting rather than promoting a need to share culture of integration. thank you for inviting me to testify. i look forward to working with the committee and further exploring how to protect legitimately classified information and reducing government secrecy and costs. thank you. >> thank you. i appreciate all of the opening statements. we'll now recognize the gentleman from michigan, mr. wahlberl walberg, for five minutes.

>> thank you, mr. chairman. thank you for holding this hearing. it's something that probably many of us have surmised what's going on. it certainly goes to a frustrating level. and i appreciate the fact that in this report that you pointed out, mr. chairman, the pentagon buries evidence of $125 billion in bureaucratic waste, done by two reports, one of which certainly has established credentials for doing investigative reporting, and we ought to take this seriously. but i think when i read this, the frustrating thing was the number of assertions that lawmakers don't want to do anything about this because of impact on their districts. and certainly there is evidence to show that. but i think this committee has lawmakers better than that. and i hope that this is a real start. mr. amey, according to that

article in "the washington post," the department of defense first commissioned and then hid, hid, the unflattering results, and did it aggressively, hid that, with retribution offered, threats, you name it, of the waste and inefficiencies. are you familiar with the report? >> yes. >> i would expect so. in your view, what reasons could the dod have had to keep the results of the report from the republic? >> oh, boy. you're putting me on the spot on trying to predict what the department of defense was thinking. i don't know. i mean, it's very difficult, because the report is actually on the internet. we found it yesterday, when the story came out. it has been on the internet since that time. the defense business commission actually had a slide presentation, a summary of the report on its website. and so we're trying to actually

figure out, and we actually reached out to the reporters to figure out where the secrecy was taking place. i would imagine it's public embarrassment. at the end of the day we're talking about the department of defense trying to protect $125 billion and the fact that they can't pass an audited and there's other scrutiny on top of them that i think that this was just an issue of, we didn't want this to get out, so let's try to keep it under wraps. >> and i'm sure that $125 billion doesn't sound unreasonable to you? >> oh, no, sir. we've been saying it for years, that between when you look at goods and services, most of my work is on contract oversight. when you look at the department of defense and goods and services, we're into the hundreds of billions of dollars' worth of waste. >> as i read that, it goes back to the simple truth that a bureaucracy will protect itself. and a bureaucracy does not want to be downsize income any way,

shape, or form. in a time of sequestration, in a time when our war fighters and their families, et cetera, are suffering reductions, for this type of dollar amount to be held over and attempted at least to be hid from us, is unconscionable. to think that this could, as i've read, cover the cost, the operational cost of 50 army brigades, that's pretty significant. or 3,000 f-35 strike forces. or ten strike forces of carriers. that is just unconscionable, that this would have been disregarded and hidden. what can congress do to ensure that agencies engage in this type of self-analysis but then also use results to improve existing operations? >> it's a wonderful question, because that's exactly what the point is, is at the end of the

day, we've asked for inventories of contracts, of inventories of what we're buying, how many services are being provided. unfortunately there was actually a chart out a few years ago that said that the government doesn't often know how much the government is spending and what it's being used for. that's where we need to get to the audits. but specific audits, not just check the box, did people do x, y, and z. we need specific audits of specific spending. gao does a very good job. dcaa is involved in the process. that's where i think we need to go a lot deeper into specific programs and why we see overruns on programs. there's a lot of waste out there. we have to identify and come to the solution on how to remedy it from the beginning. let's stop trying to put the milk back in the bottle after the fact. let's do it at the start of the process, before billions is wasted. >> i trust that because of this hearing and others, i would assume that we can do that, plus starting new, afresh, on january

20th as well, that this lesson will not be lost. because frankly, this is the number one responsibility of our federal government, to make sure that we have the resources available tolerati do what's ney to defend and protect our citizens and not just protect the bureaucracy. >> the chair recognizes mr. cummings for five minutes. >> thank you very much, mr. chair. mr. aftergood, i and many other americans have serious concerns with reports of hacking and other actions by the russian government to interfere with the 2016 presidential election. the intelligence community has confirmed that the russian government or its associated entities hacked the e-mail accounts of individuals and political organizations before the presidential election. the director of the national

security agency, admiral my knowledge michael rodgers said, and i quote, there shouldn't be any doubt in anybody's mind, this was not something that was done casually. this was not something that was done by chance. this was not a target that was selected purely arbitrarily. this was a conscious effort by a nation state to attempt to achieve a specific effect, end of quote. do you believe this is an important issue for our country? and i notice in your testimony you talked about classification and you talked about the state that we find ourselves in overall today. and i'm just curious. >> it's a crucial issue. the integrity of the electoral process is absolutely fundamental. if we don't have credible,

authoritative elections, the foundation of our political system is washed away. so yes, it's an extremely serious question. i think the blanket of classification that has been spread over it needs to be reevaluated. even before that happens, congress needs to understand exactly what did happen. there are actually several questions here. what kind of attack occurred? what are our vulnerabilities? and what steps can be taken to prevent future attacks of this kind? i think all of those questions are wide open. i would also say, though, that it's important that this not be construed as a sort of left-handed attack or attempt to undermine the incoming administration. because that would only aggravate whatever damage has already been done, at least in

my opinion. so, you know, i would hope that this be undertaken, as you said, on a bipartisan basis, to say, look, we've got a problem, we need to deal with it. >> i agree with you. i think it's definitely a bipartisan issue. the fbi has refused to disclose any information about its investigation of these hacks. this is the opposite approach to the one the fbi took in the clinton e-mail investigation. i wrote our chairman on november 17th, 2016, to request that our committee conduct a bipartisan investigation into russia's role in interfering with and influencing the presidential election. again, not to take anything away from president-elect trump, but just the idea of it, it should bother every single american,

even republican lindsey graham, senator graham, called for an investigation into it. outside experts have also called for congress to act. a group of 158 scholars from colleges and universities around the country sent congress a letter calling for a congressional investigation. a group of experts on cyber security, defense, and fair elections wrote, and i quote, this evidence made available in an investigation might show that foreign powers have played an important role. it might show that such a role was negligible. at this juncture we can only say that existing reports are plausible with the -- it's a bl blend, do you believe there's a role for congress in investigating these allegations?

>> yes, sir. to mezv the one of the great headlines appeared in the washington post on november 1st when the fbi tried to explain why it didn't sign on to director and homeland security and the headline read, comey was concerned publicly blaming russia for hacks of democrats could appear too political in run up to collection. that's thehu(árr'gton post headline. it's interesting, as you point out. congress should get your classified grieving, you should understand the hacking. there's a huge problem, we're constructing at the national security web site a whole cyber vault trying to get declassified much of the cyber security policy documents. as former national security agency said one of the problems with cyber security is÷ú it was born classified. it grew up in this hot house

when it was all shielded by compartments, what we need in our society is robust that tearians, the tech companies and this committee and this congress. we've got to open it up. it's beginning to get populated. it needs more, it needs this congress to get into this. it needs to press the intelligence community and homeland security to release the basis of their attributions, that's the hardest part as you i'm worried about future generations. >> i just see -- i'm very conce concerned -- i appreciate your comments because it seems as if you can just chip away and the next thing you know you won't have a democracy.

do you all have similar concerns, any of you? mr. leonard? >> yes, mr. u!coupummings, obvi is it's what i've seen in open court. i do know -- based on my past experiences, this is just something straight out of the seen it repeatedly, happen in europe, in eastern europe and things along thoseym lines.÷ú it was use and things i long those lines. clearly it does go with the very fabric. this is an example of what i of the impact denying

information that congress can have in terms of congress's own ability to carry its own authorities, which, essentially, iszv oversight. >> if i can make one more comment onp that issue, i think we've got to look at this attribution and rolls with an eye to what's thuç long-term fi if you look at what the obama administration achieved with china,÷ú price of state visit f the head of state of china, china had to stop its hacking and that whole part of the arm kind ofym went on hold that wasn

1997. and why and what's the damage, is what's the fix. a]%q! new international norms governing cyber war because our country is the most vun able in the cyber sphere, it'sym in our national security interest to impose rules on other folks and to cut the deals like president obama did with the president, to rerdrain us. they restrained them. it will also restrain us, but that's in our zv÷úpzvinterest.

it's fouo with the controlled unclassified information, cui out there, anybody can be stamped cui and all of a sudden that had the control on it. and then it can't be shired and then there's questions on wait a second, if people can't learn about it how can we afford it. we have to figure out what the punishment can be and maybe it's purelyzv administrative, i'm su the other panelists have some

ideas on it as well but i think it has to be something. >> let's talk a little bit. this commitfqq has had pretty good success with the ig community --s-- and technology officers under -- is there a model in which we create all agencies a classification office or are we better offsetting up something outside the agency, term, you know, move something within the national ar kiefs where there's a method of declassify -- archives where there's a method of declassification. we'll start with you and let anybody else weigh in. >> excellent question. all i can do is point back to which are the times when we had real enforcing unneeded secrets out of the systemb is when congress took action with the

nazi war crime, with the records bill, jfk assassination records bill, jfk assassination records bill, outsidea >> part of our problem is, you know, we can do a lot of things. we need your suggestions on what -- what's -- what specifically to do, i understand that probably more depth we can get in in the 2.5 minutes that i have left, let me let anybody y do you want to weigh in? >> i'm a big advocate of these types of issues. i haven't been external to agencies when. i was part of the federal government. i was limited what i can do with the department of de -- defense, i don't experience those limitations. plus jhave reporting responsibilities of both the executive and legislative branch. >> your suggestion might be to expand. >> absolutely, there was the÷ú

2010 reducing over classification act which returned specific responsibilities, i believe those things can be greatly expanded and given the proper training. >> one hopeful sign in currentp classification policy is the growth in classification challenges from within the system. the current executive order allows people whoht have accesso the -- to classified information its classification status and say, wait a minute, thisym shouldn't be classified. in the most recent year, the v÷úyms

number. >> does anybody think we should. >> i believe -- congress should, in fact, some committees by virtue of rules power themselves with the option, to my knowledge have never been ymacknowledged. it's a dicey issue, but branches of government and --

>> i think it should be -- i think my time is expired.zv >> thank you very much. thank youzv -- >> and we need balance and accountability and we need fairness. so this is a huge area with so many people in iraq and there's disagreement among agencies and within agencies and a lot has to be done here. and answer them and sort of es seshltly.÷úym

>> congress has not -- i'm no expert i assume that you can give far more sophisticated answer to zvthat. >> testified with one of the congressional hearings, they were in powerful positions and they didn't push through the recommendation. my own sense is there wasn't enough of a notion of crisis and we've got a crisis today, i think, in the classification. >> i think that you're quite accurate on that we may be in a situation right now where we're in an unprecedentedzv environme. mr. -- would you like to comment. >> the commission reported sales included÷ú an appendix of previs studies of previous decades that have not solved the problem, here we are 20 years later looking back, i think it may be

the recommendation didn't quite capture the issue properly and it seems to me thatzv a law on secrecy is a means to an end. it's not the end. i would think about what is the end that you really want and then go for that. and the end that you really want is greater congressional control over what is or is not classified, focus on that, go for that. if there are particular areas, particular topical areas that need classification, declassification, mandate their declassification. >> probably -- and the end >> probably -- and the end result should be -- as i sov mentioned, the issue of security of balance, fairness and accountability. again, you talked about reformz that could be made by statute, one of those would be implement a life cycle of secrets. would you talk to me a little bit about whatko that is.

>> in the most straightforward version, it was in the freedom of information amendments, like a 25-year sun set for delivered of process. the reality of our system, one of the reasons for entering crisis, we've got a tsunami. the volume isu! we're talking p bites of information. we're not going to be able to do page by page review, which is what our system currently we're going to have to build in automatic releases for entire categories or records without review and that, i think, is going to be the÷ú only way to dl with this electronic record. life cycle is a summary term to say, we've got to put some on the secrets. you've got toym have better decisions on the front end that build in, otherwise we're sunk. >> i think with your testimony o that i will we can take can be

deleted automatically if it's programmed to do so. programmed to do so. >> they say they've gota at every single cable to make sure there's no social security or i want to ask two questions here, number onep is even thoug that information might besshared with other agencies. is there a proposalp where wher those thingkú can be vetted undr standards and circumstances and then sort of move in a way that

agencies can sort of agree on the groundlevel and would reduce the amount of --p >> it doesn't have the power, maybe the will to over ride those agencies so you get a constant equity referral wherez% the agencies get a bite at the apple. wuchb of the recommendations in my testimony is empower that center, make the decisions. if something issolder than 25 years, that center should be able to review it! so that empowerment, my last -- i'm sorry. does that require our legislative action to reconfigure this and empower in a different way. >> thank you. >> thank you mr.÷ú chairman. >> thank you. >> thank you, mr. chairman. iym appreciate the testimony an the invitation to congress to be

involved in this. but i want to just start at the beginning and justko ask everybody, does everyone agree that at some level the executive does have inherent authority under article two, as part of the executive power to maintain secrecy of information related to the national security? mr. leonard? >> absolutely. >> yes. yes, but, because there's an article i that says congress make as rule to govern the military armed forces and national security, so it's both. >> well, it's both, but i think hamilton, when -- there was a debate whether you should have a single executive. they revolted against george iii, one of hamilton's main argue ms was for secrecy, national security. there's got to be -- i mean, is there anyplace, i guess, that congress can't go into that orb% could congress basically

legislate late as far. >> can legislate late as far as it wants. that's the key and i think the founder said separate the power of first to power of sword that's key. it takes money to run a company. >> so the congrdcs could abolish the cia if they wanted to. we do that because congress has passed a statute saying declassify, you ÷29=]1ñ as much sensitive stuff as we want. would there be any constitutional concern with doing that? >> none and congress has already done so with the nazi war crimes which expose the files of cia recruited, so congress has done that. >> when did they do that, though. >> in 1998/1999. >> if congress wanted to start declassifying things that were germane and right right now with how our government conducting sensitive operations, you see that would still be okay even though it could jeopardize lives. >> it would still be okay because my bet is, this congress

and committee would act pretty judiciously on that. you're not going to willie nilly. >> i get it -- >> i have a lot of confidence -- >> well, there's certain constitutional prerogatives, we, obviously, have the power to legislate the executive has -- the executive power means something, i mean, there are certain things. what i'm trying to figure out is, are there certain bplaces, think we all agree some of this stuff is ridiculous. there's an incentive to take -- some of this stuff isn't even classified0a" being protective. let me give it to you on the end. >> i do believe there's constitutional protection for secrecy, but at the same time as tom said in his at the same time

we'll have tozv get down throug the challenge process or through briefings that congress get on questioning what the executive branch iszv doing. >> it's an example, perhaps, of --÷ú when i was in my positi at, one of the things i had to do was to deal with request for agencies to getp original classification authority. quite frankly, one of the issues contend with, it was one of convenience more than anything nd there were a number of hing instances where there were agencies or even small activities looking for original

classification that had÷ú to pu back because they were looking to really accomplish something that should have been and accomplished through legislation. there was a legitimate reason to withhold information of public disclose sure. >> how do you analyze -- because some of this stuff, it's just, the agencies are embarrassed, they don't want to do it and it's clearly not credible. but sometimes when you're tryinç to get information, you are diverting thed8 executive when they screw up or when they're not competent, how do you do this in a way that's not going to impose too many costs. we're not going to always review -- that's going to create some costs, how would you recommend wesstrike that balance, is that a valid concern. >> one way would be to, as mr.

blatant referred to, was to consolidathm authority and responsibility and not spreadzv >> chair now recognizes ms. kelly for five minutes. >> thank you, mr. chair. thank you for holding this hearing. i believe that secrecy is a serious problem that is widespread in the federal

government and that it goes beyond classified information. for instance, there's a categorú of pseudo classification that has exploded called controlled unclassified information. i understand there may be as in use, but the label sensitive but unclassified is one of the words defenders. first i want to get a sense of the extent of thiszv problem, information current oversight obvious annually reports how many classifications, decisions, agencies make. however, there's not a corresponding section on how many decisions were made to designate materials as controlled as classified information. you previously servedht as director. our agencies required to track how many materials they designate as controlled one of my copanelists because i've been away from -- since that assumed that responsibility and have not followed it that clb >> i would say that there have

been significant progress compared to where we were ten years ago. it use to be÷ú that anybody can mark any document anything. you can say this is far efficient -- and that would restrict it.a now, under the executive order on control unclassified information, there is what's called a cui registry and only thosev: markings that have been approved and validated can be used. and there are many things, of course, we want to protect. we want to protect tav returns. we want to protect privacy information, all of those things have been validated and only those markings that are on they cui registry are suppose to be used. is that system working perfectly, are people bending the rules. i don't know the answer to that question. i think --÷ú it's -- it just we to very recently, we're waiting to see how it's working. r(t&háhp &hc%

improved substantially over the past ymdecade. >> i don't think we know the answer toyota. agencies are going to be required -- required to report how much information is marked. they did over the 100 categories down to 20. there are some categories, so at that point you still end up wi,f a real patch work of designations of markings that can be placed on documentation. the big thing with it, also, is there's going to be better training, you know, they're doing a very good job. i have to applaud them because they reached out to our community and worked with us on the rules, you know, as it went through the process. rr(t&ho they worked with the agency.

>> we'llym have to wait and see and full implementation isn't expected to be completed until 2017, 18, '19. at that point it will take a long time to get some answers on it. but -- >> i know you called it a greys area, i was going to say what do you think the potential for s. and so at that point something was marked sbu, i think four even though it didn't have any marking they marked that ÷ú information. now the nice thing with the cui rule is that there is a misuse

provision, that may be something that can be borrowed upon and also the challenge procedure, but, again, challenges go back$% to the agency and i think you have a right to dispute resolution, due to the fact you're gog. back that may have been originally marked it. there are some concerns with that. >> i yield back to that. >> thank you, gentle lady. the chair is going to recognize himself for five minutes. i want to goq% back to somethin that came up a little while ago. and that is the number of classifications over the lastzv five years some 400 million and yet only a little over 2,300 in the same five-year period have been challenged and those numbers can be debated here and

there. whatever it is, 2,300 outsof 400 million is virtually no challenge whatsoever, just real quickly just from a sentence or too, why so few challenges we hadv: reports of my inbox and t secret report, which one would i read÷ú first. and just expect nothing else. >> in my cases, employees are÷ú not aware of the that enabled them to make this challenge and that's one simple step that can be taken tob say, look, as soon as you sign your nondisclose sure agreement you sign that i'm aware i can challenge a classification marking that i believe is ÷úimproper. i would also mention that i

think your hundreds of millions. >> i don't want to get into that right now. key challenges? >>÷ú it's easier just to classi and much classification just occurs reflectively and most of those derivativezv classificatis is keep it going, because there's not a thought process on the front end of the first decision, what's the cost÷ú whas that? and you've got to educate them at nondisclose sure agreement point. but i would argue. >> just quickly, it could be career suicide, at thiszv pointe have insider threat investigation and retaliation, so a lot of times as mr. bland said to it, it's a lot easier to

>> it's not a matter of red tape, perhaps, poor advertisement, people don't know, perhapsmy a culture or whatever, but red tape is not the problem. is that correct? all of you would agree with that. >> ibrolutely. lack of accountability is key, too. >> okay. now when it comes to, obviously, we know there's been a lot÷ú of threats to our country and i'm concerned about the lack of information sharing within our federal government, on a scale of one to pten, how serious of problem is ÷úzvymthis?

>> there's been a roll back with respect to some of the rather significant wholesale compromises that have÷ú occur2"y >> it's a serious challenge. when you classify your strict dissemination, there's a flip side of each other.p it's an on-going problem. >> ae greeed. >> so a -- agreed. >> there may be some improvements. we still have a÷ú serious probl with sharing information, even when potential threats are hanging in the balance of our country. and in the mix of all of that, also came up earlier, is the ability of congress to do our job, how serious is the issue or is it at all an issue where agencies are over classifying to

complicate or obstruct congressional poversight. >> i think it varies by agency and i think the intelligence community hasym the worst cultul problem. you've got to go into that. you can't bring out notes, you can't have staff. how are you going to havev: serious consideration some of the most important and sensitive and deadly operations of our entire government. >> any new commissions is going and secrecy issue is why you have to get out of check the box kiéd of audit, are people following procedures but take a look at some specifics where challenges have been raised and

why those things are allowed to be over÷ú classified. >> our time is exspired. >> thank you, mr. chairman. and you mentioned a nazi war crime that happened to have been a bill i authored and it took four years to pass it because the cia was objecting, it opened up the files of nazi germany and japan 50 years after the war. uvery other country opened their file we were choosing to and it took congress to pass a bill to open up these files that's been ooks. it's been turned into all kind of helpful information that's helped our defense strategies and how to operated8v:ymp in a

environment. >> in other words they were not classified atzv the time they we sent or received by her, but then they were reclassified after the fact by staff and the department of the office. and patrick kennedy testified that 1,400 of these documents, or 70% were retroactively

classified because they contain what is foreign government information. so my÷ú question is, it seems t me that this is a con fewing process, foreign government information is not treated like classified information until it's reviewed for public relief and now all of a sudden it's classified. seems toym me how are they suppe to know whenp to treat information if it might change without warnzving. >> he asked this committee to create an exemption for foreign government information, which i think it's a terrible idea for three reasons, one itu! puts standards into our freedom of information law, no thank you, lowest secrecy. i think the second reason is,if there's harm from release of

that foreign government information, it's protected alrea already, that's. jooirk -- how you protect us, they don't want to think about it. i can remind u!you, only suprem court over foreign government information finally got turned out the document issue had been handed and the governmenthad no idea and it wasn't going to damage our relationship with great britain, which is where it came from. so skepticism is inp order. >> -- and i truly understand truly sensitive u!diplomatic. but using the classification what makes it even more confusing andzv i would argue ls effective. we need to have find a better solution, with that statement i would like to ask all of

panelists in my rmhining time, do you have any recommendation of how to improve this process to go right downyuy and we can start with you and go right down the line. >> i agree with it wholeheartedly is providing legislative backing to various systems. in order to ensure uniformity, consistency and most of all÷ú accountability and also for to enable -- toym facilitate the congress to be able to fulfill their article i constitutional authorities, as well. >> the government requires a degree of flexibility and so i would be cautious zvabout, you know, strict provisions, information that's provided in

confidence needs to beym protecd somehow, if one wants to maintain that working relationship. whether that classification seems like a heavy handed way t% do it, but if the alternative is --÷úzv >> -- comprehensive kit on where when and so i think that will be it.zv >> the fundamentalal phenomenon is being driven by agency, like what mr. leonard said, the cia is starting control and no÷ú to state declassify own ÷ú

information. >> it's very important to me y careful not to disclose anything that's classified. about a month ago i went back down to one of those ski+= he was talking about. you can't take notes out. i reread the 28 pages. i brought the redacted version with me so that i want to ask you guy a question later so you can get ready with an answer -- certain reasons that might be legitimate and maybe a law that says when you redact or even small portions, that you have to give the reason. if the reason is to ,cid embarrassment or to protect a source or protect somebody who may not be guilty -- the crimes or infraction could be that you lied about the reason because that's what i want to get to is

28 pages and the reasons for those redactions. and ithink i can disclose my perceived reason for some of these redactions without disclosing anything classified. 20% of the redactions, i would : say. >> they change the nature of the document, the way it's perceived by the public and the impact÷ú that it should have. for instance,z. >> this is going to be a textbook case of how the government over classified something in an effort to control the narrative.

in fact, before the pages came out, there was an opp ed in thes usa today by the chairman on the commission. it said, these are unvetted sources, right. were made to support that -- -- >>ym 20 years now, we'll look bk at this, we'll see the key words and acronyms and sentences were removed. >> with the fact from reading the unredactedzv pages, which i saudi arabia, and i can say that name now because it's in the redacted pages, has soey kind f

civil liability or criminal culpability -- and not because of their citizens but because of their government, acted either in, i would say, acts of omission or c commission and i'm afraid that's been diminished by the redactions that have been over classified. this is a prime example, so one of the questions i want to ask is, you think it's a good idea if we require them to give the reasons for the hthtredacti.

>> and there should be some punitivezv ramification for misleading about the reason. >> somebody thinks it's the right move. becaãof the subjective you and i make disagree, so providing the reason i think will be helpful.

but it wouldn't necessarily resolve theym disagreement. i disagree with that reason. instead, i would suggest that in cases of. >> try to %att it and take the decision away. take it to a third party. there's a public interest declassification board, there may need to be a new omy and say, does this make sense, i want you to evaluate it as a third party and come back to us with a recommendation. >> mr. chairman, i appeal to let the other twoym answer the question. >> just very briefly, exactly, this mechanism exists for mandatory review request, this inner agency appeals panel and it's ruled in favor of openness over 70% of the time. just a third party, the simple maneuver of taking the document away fromv: the original agency and putting it in a panel that includes the original agency, you get a completely different

result. and this is alsop a process wit the freedom of information act.m we use to get a letter back with tons of markings and then introe they will say we redacted things for b three÷ú 34567 and you app this one specific redaction. now they're required to go through documents subject to th% freedom of information act and list right next to each redaction, what exemption was being cited to justify the reason for that and also then you also have an administration appeal we hope that it goes to a different entity inside of the department rather than the person that made that marking and there's also a pr sesz to challenge those determinations and go to in essence, an arbitrati arbitration, it's funny that we havep a better procedure than w

do for that classification process. >> i've seen this document and they're somewhat helpful.o@ r(t% they classified the stuff they sent to us. they try not to disclose. but i haven't seen that on the 28 pages. i've just seen there's nothing and by the way, it was released the day before he was named vice president, which is÷ú another zv thing. >> i guess i will say, what happens when two agencies classified at all. and this is -- this is not a hypothetical in a recent investigation ofzv e-mails, we d multiple examples where the state department said one thing and the intelligence communhdy says another.

specific example, really quite÷ú -- -- the state departmt employee about the late ambassador chris stevens of libya waszv marked clearly centered but unclassified. the management, mr. o'nedy confirms and testimony before the committee that the state department considered the e-mail unclassified and that anyone reading the e-mail would assume it was not classified. but after the e-mail was sent, the intelligence community, nonetheless, claims it wass÷ú classified. explained that the intelligence committee was wrong. the letter from the state department statedht that the

suggestion that the e-mail should have been treated as classified was, and i quote, surprising and in the rj view, incorrect, ÷úym unquote. tom referred to the security classification of appeals panel. i use to serve as executive last year that the full numbers are available, for appeals that came to that panel, which consists from various agencies, 95% of the timev: that determination was written and in part or in whole, 95% of the time, since -- since 1995.

>> yes,ht but in this case, mr. the originating agency did not want to see it pclassified. even though it was in the state department document and the state department said, no, it isn't. >> so let's hypothetically say wezv invite the fbi, a nonpolitical organization, to come and look and see if there were violatrd's of our secrecy laws, well, how is this -- determine whether violation

occurred when two major agencies or:emtities looking at classification have different views about the nature of the document, the sourcing of the document andym what it should b classified as. >> part of the÷ú problem and that's the reality of our classification system. õ they're both classified and unclassified simultaneously, different agencies are sometimes the same reviewer. >> but --zvht the other one is

saying don't you there, it's classified. i'm trying to be diligent, what is it. and am iym exposing myself by living at my desk, for ÷úexampl. >> that's not how it works. i was at the private sector, we went around checking to make sure nobody was sloppy andç it' not going to go to the attorney general, you've got a thing because i saw that document on your zvdesk.

and they say this, they put people at risk and frankly i'mu glad i can be arbitrated at some point. i'm certainly glad the attorney general can ultimately adjudicate. we're talking about, you know, thousands of documents,ko thousands ofdisputes are a real delima for people trying in good faith to with the ÷úlaw. >> the reality it disputes drive, the issue to the lowest common denominator. they result. they end up adopting the view that it's ÷úcaused.

send it to your grandmother. i have an opinion when he was the head of information securit! oversight office. you take it to the bank, you can keep it on your web site, even if somebody else, sorry, mr. blatant, that's classified, no, wrong, send it to your ÷ú grandmother. >> we're told the government -- which is the stunning amount of money and if÷ú it's 100 billion over ten years it must be going up like a rocket, that seems like five million doessanyone

care to comment, how do you wind up spending that amount of money. it seems like phenomenonzv numb. >> that's a difficult thing to evaluate. let's put it this way, i spent many yearszv on the defenseym that rightfully or not, the mentality for those types of things, how many cases are you willing to indoor. the mindset is, zero tolerance

and as a result, there isym no. >> we have michaelko bradley. >> you know, it was never goings to be an open i think mr. bradley is a good pick because he has a broad understanding of the problem of secrecy, he was aid to the lateym senator.

he is has a doj national security lawyer has degree of credibility with the national security agencies that others might have trouble matching. >> we look forward to meeting with mr. bradley as soon as he's s a9 the job. . you can look at the previous, and you can see those folks make some real differences in the security difference, i can hope for that trend. >> certainly when you're back out to our ÷úcommunity. they know it's a burden on

secrecy, but then on openness and have providedv: the proper weight test to that and i think that's been beneficial to the å&,áuqs >> there was inspector general report in 2013 that said that 33% of the employees didn't understand theirko zvrole. but could you comment on that and answer to us why thatg# v: happened. >> i think based on my experience for over 40 years that's rather typical.

it's a reflection of as÷ú much÷ do not spend comparable amount of money in terms of trying to train people in theu! basis. we make distinction between original classification and derivative. my experience has been is thatt when people have drif etting, they're classifying information based on gut÷ú instinct. >> any other comments. by the way. -- for that, 200,000 people at 80 grand compensation a yearmy that's --zv -- think about this

and how we might approach the problem. and also walter jones on themy pages. >> as we were asking for disclose sure and÷ú declassification, administration was pushing back and saying know this was too sensitive. we had some of the agencies saying, no, it's method and sources. they flipped -- they flipped and

said there's nothing here and the information is not valid and they took totally different tact. now, we're struggling with theh dea and fbi in regard to classified -- excuse me, confidential informants, so we've learned from the office÷úf the inspector general for the dea that we've got 18,000, they've got 18,000 confidential informants out there that are underym÷ú they don't know the way they're operating. dea headquarters isn't independently involved. this is all operated at the field level. so that -- and that's just the dea. from our conversations with the

fbi, i believe that the numbers are double. probably about 500 million that the fbi is paying to confidential informants. probably double the number, probably in the area of 30,000 or 40,000 informants. confidential informants. that's totally out of our purview. i'm wondering, you have all hit on this, you know, with the interagency panel reviewing classifications, is there some way to super charge that, that process? because it is painstakingly slow, and it doesn't work in the timeframe in which the information would be useful to us. mr. leonard, i know that you said that the last time somebody took a good swing at this was during the clinton administration, in your remarks. your earlier comments. is there some way we can get this interagency declassification review panel resourced and equipped to give

congress, and i have seen -- i have seen my colleagues across the aisle tear their hair out when they couldn't get information. i have been in the same position. is there some way we can formalize this process to get the information in a timely manner? >> one way i would suggest would be to make provisions to allow appeals directly to that panel under certain circumstances. right now, requesters have to go to the individual agency. if they get turned down in whole or part, they have to appeal to the same agency. it's only after that process that they can go to the interagency panel. even that panel then has its own coordination of things which can be problematic, which is easier to address, but the individual agency time delays can be problematic. also, for purpose of congress, congress does have the public

interest declassification board that they can refer to. and that is another avenue that quite frankly i never believe is utilized enough. but that's another avenue. >> yeah. to expedite it, you know, maybe we just have to figure this out legislatively, to introduce an expedited process where the information we believe is so critical and i guess i'm just thinking, is there a way to get the judiciary involved here so they would review -- i don't want to create a political question that the courts can't rule on, but we're being stonewalled in wide areas of public interest, and i feel like it's hampering congress' ability to do its job. >> one of the things is the interagency panel is actually exercising on behalf of the president. it's exercising his article ii authority, and the public interest declassification board, ultimately, they just make recommendations to the president

who makes the final decision. >> you have something you want to add? >> yes, sir, you mentioned sources and methods. i think it goes right to your informants problem and one of the big drivers of classification, which is under the current statutory system, anything that is a source of method can be claimed to be withheld, whether or not its release would actually harm a security value or get a source killed. i think congress can take very simple action, both in the intelligence field and the law enforcement field to say sources and methods is not a burka. it should only cover the things that would do damage. get somebody killed, ruin an investigation. right now, that identifiable harm standard, which is now in the freedom of information statute, it doesn't apply in this informants and sources method. it needs to apply. congress has to take that action. >> and that recommendation was in the moynahan commission report, and it hasn't been acted

on now in almost 20 years. so it may be time for congress to enter that world. >> yeah. i know that attorney general reno issued some guidelines, but they're not being followed. i actually have legislation. i don't even want to know who the informants are. i just want to know how many are out there, what they're being paid and what crimes if any they have committed while being a part of this government program. we had a difficult time getting that through. but that's all i have, mr. chairman. thank you for your indulgence. i yield back the balance of my time. >> the chair now recognizes mr. duncan for five minutes. >> thank you very much, mr. chairman. first of all, i want to say that i want to go on record as saying i agree with mr. grothman in saying i'm astounded by the amount of spending that's being done on this, this $16 billion estimate and over $100 billion in the last ten years. i think we lose sight up here of how much a billion dollars actually is.

but having said that, i had two other meetings so i unfortunately didn't get to hear your testimony. i apologize if you have gone into some of this earlier. but mr. blanton, in skimming over some of this testimony, i was fascinated by your report about the moynahan commission and that we went through all of this 20 years ago, basically. and also, i think the thing that impressed me the most was, i mean, there seems to be general agreement here today that there is a real problem of over classification. but i saw where mr. mcdaniel, who was president reagan's national security adviser, said that only 10% of what's being classified probably really needed to be classified. is that correct?

and why do you think -- you mentioned there that this was a tremendously bipartisan commission, had jesse helms and daniel patrick moynahan. and obviously, you're disappointed that not -- very little was done with that, those recommendations. why do you think that was? and do you think we should take another look at that? what -- just go into that a little bit for me. >> i think in the testimony i quoted mr. mcdaniel, who the moynahan commission quoted and said based on my experience with a few million pages of declassified documents, he's right, especially about the historical materials. i think an estimates that's closer to reality for current material, the material on terrorists and isis, the best estimate came from the republican head of the 9/11 commission tom kane.

he said 75% of what i read about al qaeda and osama bin laden that was classified shouldn't have been, and we would have been safer as a country. so i think the range is in there. the 75% to 90%. it's a bureaucratic problem. bill knows it better than anybody. steve aftergood has been studies it, pogo. every incentive is to classify. there's almost no disincentive. there are no penalties. there has to be, i think, this is the main reason why congress needs to take action. because y'all can change the minds of the bureaucracy and how it actually works. you can change the laws and their hearts and minds will follow. >> i actually believe that the executive branch in general agencies in particular actually want the ambiguity because the ambiguity gives them almost unlimited discretion. in dealing with issues. and yes, it results in dumb things, but it's the ultimate trump card to pull out whether you're dealing with the courts, whether you're dealing with

congressional oversight or whatever. nobody wants to be the one who compromised truly sensitive information. so there tends to be this over deferential to any assertion, and that's what it is, a simple assertion. it cannot be demonstrated that it truly should be classified. >> well, there's so many other things i would like to add or comment on, but mr. amey, i'm assuming -- this committee has requested through the years a great deal of classified material. and do you think that agencies are classifying some material or a lot of material that really doesn't need to be classified? just to avoid or get around effective congressional oversight? >> yes, but it's hard to know at what level. i don't know what i don't know. that's unfortunately when something shows up and it's a blackened out page and marked classified, and then a foia exemption attached to it, it's hard to know.

sometimes we get documents released to us, and at that point, you can do the comparison. that can allow you to ask some questions. unfortunately, with the amount of classification we have, its very difficult to put your finger on it, the experts that have taken a look at it, the 75% to 90%, but the culture. i think that's it. even after 9/11 with the 9/11 commission, you have a culture who the default setting is err on the side of caution. >> i have run out of time, but i will say this. we're going to have to, it seems to me, go to much more of a carrot and stick approach on all of this, and incentivize good behavior and penalize bad behavior in this area. and at any rate, thank you very much. >> thank the gentleman. the chair now recognizes miss lujan grisham for five minutes. >> thank you, mr. chairman.

and hearing some of the comments at the tail end, you may have to repeat some of that because representing my district and of course new mexico, we're home to world-class national security defense operating labs and related defense. both private and public sector institutions and businesses. and i understand unequivocally the need for being very clear that sensitive, classified security aspects related to information, that we have to be very clear about protecting the integrity of those systems and that information. having this committee work on furthering our effort at transparency and recognizing that across agencies that we don't have an effective handle of that, who's determining and what parameters apply and what circumstances before, during, and after information is being shared in a variety of what i would call sort of post and

pre-security issues. i also worry about unintended consequences. and being a long-standing bureaucrat, i can argue either way that having ambiguity is -- can be a protective mechanism to not change anything, because you fear those unintended consequences and your own accountability, particularly here where national security is at stake. right? there's no incentive to be a little bit -- to talk about being less risk averse when we need better transparency in order to inform ourselves in a way that's productive so we can do policy making and you can increase the way in which we address national security issues. both in the congress, both in the bureaucracy, and defend and secure the nation. but i also know that it's very frustrating not to have clear direction so that you can make recommendations and include reforms. it's both.

and so to provide those leaders with better guidance, help me with some very specific ideas about balancing our efforts, the need for transparency and the clear issue that we have, which is also protecting classified, secure information and the national security interests of this country, because my constituents are going to say, and they're right, be very careful about unintended consequences here. once it's out of the box, it's out. anyone. >> i think one way to understand the issue is that classification is treated as a security function. understandably. the people who are making the classification decisions are asking about the security consequences of disclosure. that's fine. that makes perfect sense. the problem is that security is not the only consideration. because classifying has implications from oversight, it

has implications for public understanding, for diplomacy, for technological development. it can have all kinds of implications. to ask the security officer to weigh the public interest or weigh the diplomatic effects is totally unrealistic, i think. what that -- where that takes me is that in areas of significant interest by congress or the public, there needs to be an additional venue where this original security classification decision can be reconsidered in the light of broader issues. what is the public interest? what is the need for oversight? what are the undesirable unintended consequences of continuing to classify? don't ask the poor security officer to make this complicated assessment. take it somewhere else and re-evaluate it in light of the

big picture. >> anyone else? that is in and of itself sort of a balance and a chance for a re-review as a lawyer and what i would fashion in an appellate aspect. again, making those decisions and then creating the parameters for asking for that guidance is also a set of reforms that can also have unintended consequences. are there specifics in that regard, and the concept, i think, is one i'm very interested in. getting to the concept, are there ways to include the agencies in terms of their recommendations about what those parameters would look like? without having them protected on interest. that's the other problem. in a way that doesn't get you, then, to that appellate level, which gets us right back where we started. >> right. we really need more experimentation in this area than what we've had. i think one model is the ice cap model, the interagency panel that's been discussed.

there may be others. you would want the voice of security represented, of course, but it would not be the only voice. so you would want diversity and diversity of opinion and perspective brought to bear. you would also want to define who could elevate the issue. a congressional committee, maybe just a member of congress. you know, who else could ask for this kind of review and under what circumstances. these are all questions that could be hashed out. i don't think the answers are obvious. they might not become obvious until they're tried in practice. >> well, mr. chairman, thank you very much for giving me this extra time, and thank you very much for weighing in on what i think is a really critical issue for us to deal with. so thank you. >> thank the gentle lady. the chair now recognizes mr. amash for five minutes. >> i yield my time to mr. massie.

>> i would like to thank the gentleman from michigan. i have tons of stuff i want to discuss. we try to get three things in in the last five minutes. the first two fall under the category of there's good news but. okay, there's good news in terms of the intelligence budget, right? because the 9/11 commission recommended that at least the aggregate number be disclosed. so it is disclosed. and the executive branch, actually in this case, does a better job than the legislative branch. they disclose their request for the budget. but the situation we had last week is you had 435 members of congress, probably less than 80 knew what was in the budget, but they all voted for it. they can find out what's in it two years from now. like the 2015 number, i can tell you, it's on the website. but we still don't disclose the top line number, aggregate number for intelligence appropriations until a year after it's been voted on. so that's the good news is that

it's disclosed. the bad news is most of congress is voting on it to see what's in it. they can go down to -- like my colleague and i from michigan did, and see what's in it. that's the good news, but some of this is just lack of attention on our part. another good news but. mr. desantis capably and appropriately pointed out the executive branch has to have secrets to conduct its diplomacy, et cetera, et cetera. then mr. blanton, you talked about how you could use the power of the purse. there is one department that does effectively use the power of the purse for oversight. and that's the intelligence committee. they don't give the intelligence community a tranche of money and say, okay, you have no strings attached and we don't want to know anything until next year. they're continuously -- that money is contingent upon certain things and also when certain things happen, they have to be reported back to that committee. the judiciary committee would do

well to follow that example. you could -- the judiciary could fence money and say we will give you part of it but you're not getting the rest until we get this answer. so to the theoretical point of can you get this information from the executive branch or can you not based on the constitution and article i versus article ii, the answer is what you provided, mr. blanton. the key is in the power of the purse. and you can always get that information. so that's the good news is that you can get the information and the intel committee does it. the bad news is doj doesn't do it. the other bad news is the intel committee controls this information very tightly and it's hard for a rank and file member to access that. it's basically 20 questions and a skiff. and without staff walking out. that's the bad news. now, and if i have time, i'll let you comment on that, but here's the third thing i want to talk about. i think it falls within this committee hearing today.

and this question is for mr. aftergood. the federation of american scientists keeps a bootleg copy of all the congressional research service reports. is that correct? >> not all of them. >> well, the ones that you can obtain? >> yes. >> okay. this is -- the congressional research service, for those who don't know about it, is this enormous wonderful resource available to congress, and they have all the historical context for the reasons of things. they prepare these wonderful reports. but they're confidential to congress. and the irony here is i could disclose them to a constituent, but the crs has no clearing-house for this. a greater irony is on a weekend, i go to your website to find out what the congressional research service has prepared. how ridiculous is that? so i would like your comment on that, mr. aftergood. >> um, you know, there's been a

lot of talk lately about fake news and how it's corrupting our public discourse and so forth. to me, i think of crs reports as kind of the antidote and opposite of fake news. >> we get a lot of fake information in congress from various sources. >> i mean, you know, we all need to be critical consumers. but i think the crs product on the whole are extremely informative. they're balanced. they aim to educate. if you read them, you're going to get smarter than you are. and so i'm not -- you know, i'm not -- >> that's not hard to do for a congressman. >> or for a citizen. i don't have too big a chip on my shoulder about doing this. i'm not -- you know, i would just as soon congress do it the right way. i think you have a product that you can be proud of. and you should be making it available to the public. until that happens, i hope to be able to continue doing it through the federation. >> i hope you do, too, because i

need access to that on weekends. thank you very much. >> i would only suggest it's the end of the year. you might want to contribute to steve's web page. >> i thank the gentleman, and i also want to extend a sincere thanks to each of our witnesses for appearing before us here today. if there's no further business, without objection, t

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