specified agencies authority to "originally" classify national defense information. Subsection (d) (4) would make it unlawful for any other agency to "classify" information in the interest of national defense.

These provisions do not take into consideration situations in which an agency not granted classification authority under subsection (d)(2)(A) must deal with information originally classified by an agency included under subsection (d) (2) (A). It is not completely clear whether an excluded agency which, for example, applies the original classification in quoting, paraphrasing, referring to, or commenting upon classified national defense information has thereby "classified" its version of such information in violation of subsection (d) (4). This matter is of particular interest to the General Accounting Office since our reporting responsibilities often involve matters originally classified by executive agencies. Our present practice in this regard is to employ in our reports the classification imposed by such agencies. In fact, our access to classified information has been conditioned upon compliance with executive branch classification restrictions. While we have consistently taken the position that GAO is not an "agency" within the meaning of 5 U.S.C. 551(1), it has been our policy to follow the requirements of 5 U.S.C. 500 et seq. to the extent that such provisions are not inconsistent with the nature and functions of GAO. Accordingly, we suggest that this matter be clarified by inserting the word "originally" after the comma and before the word "classify" in proposed subsection (d)(4), at page 5, line 10 of the bill.

Subsection (f), as added by the bill, would establish a commission composed of nine members, appointed by the President by and with the advice and consent of the Senate, three to be chosen from among individuals recommended by the Speaker of the House, and three to be chosen from among individuals recommended by the President pro tempore of the Senate. This commission will be known as "the Classification Review Commission." The Commission would have authority, inter alia, to promulgate regulations to carry out subsections (d) through (g); to prescribe standards and procedures concerning the handling of national defense information; to hold hearings; to secure such information as it may require; to issue subpenas; to issue decisions, orders, and directives to carry out the provisions of subsections (d) through (g); to make annual reports of its activities; and to conduct continuing investigations and appraisals of classification policies and procedures.

Paragraph (6) (H) of subsection (f) would require the Commission to investigate, upon the vote of at least three of its members, inquiries initiated by any person-including officers or employees of the United States concerning any allegation of improper classification of national defense information or any failure to comply with the provisions of subsections (d) or (e) or regulations, standards, procedures, decisions, orders, or directives of the Commission. The Commission would publish a report describing the results of its investigations and, when appropriate, refer matters to the Attorney General. It appears that the Commission might employ its authority to issue decisions and orders for the purpose of effecting remedies with respect to specific matters arising under paragraph (6) (H), as, for example, ordering the disclosure of information determined to be improperly classified. However, the bill does not expressly so provide. Moreover, the bill does not set forth specific administrative procedures or a mode of judicial review for application under subsections (f) (6) (E) and (H). By contrast, subsection (g) would affirmatively establish a comprehensive system for the adjudication of congressional and GAO requests for information. If subsections (f) (6) (E) and (H) are intended to provide an administrative remedy in specific cases, the Committee might wish to consider application of procedures similar to those to be provided under subsection (g). The Committee might also wish to clarify the relationship between that remedy and the judicial remedy now provided under 5 U.S.C. 552 (a) (3), which would be retained.

Representative William S. Moorhead, the sponsor of H.R. 15172, 92d Congress, a bill substantially the same as H.R. 12004, explained those portions of the bill dealing with the classification of national defense information as follows:

"Mr. Speaker, the statutory security classification system established in this legislation would replace the Presidential Executive Order approach to this problem which our hearings have shown to be unworkable and which has resulted in the massive overclassification and needless classification of documents and undermined the integrity of our entire security classification effort. Obviously, it is impossible to write language-either in an Executive order or in a statute to cover all situations in this complex field. But the machinery that would be established by this legislation would provide the flexibility to deal with

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security classification problem areas on a case-by-case basis, while providing the overall independent administration and regulation of the system to properly enforce its provisions and insure its effectiveness within the framework of our representative system of government."

In view of mounting interest and concern regarding the problem of excessive use in Government of classification and secrecy, and the desirable objective of assuring the widest dissemination of information consistent with national security, we agree that general policies governing the classification of national defense information should be established by the Congress. We also agree that the overall administration of such policies should be entrusted to an essentially independent authority. For these reasons we favor the purposes and approach of the bill as it relates to the classification of national defense information. Subsection (f) (6) (I) and subsection (g) would authorize the Classification Review Commission to pass upon requests by the Congress, congressional committees, subcommittees and joint committees, and the Comptroller General for classified information within the executive branch. Under the procedures set forth in paragraphs (2) through (7) of subsection (g), the Commission would, upon a request under this subsection for specific information, obtain from the agency concerned the information requested together with the agency's recommendations as to the disposition of the request. If the agency recommended release of the information, the Commission would comply. If the agency opposed the request, it would submit in writing a detailed and specific justification of its objections. In disputed cases the Commission would conduct a hearing, receive evidence and oral argument, and enter an order granting or denying the request. Proceedings under subsection (g) would be expedited. Under paragraph (g) (8) final decisions of the Commission under subsection (g) could be appealed to the United States Court of Appeals for the District of Columbia; and decisions of the Court of Appeals could be appealed, of right, to the Supreme Court.

It is apparent that subsection (g) would afford a procedure for review in all instances of refusal on the part of the executive branch to furnish classified information to the Congress or to GAO on any grounds. It also appears that the procedures of subsection (g) could be invoked by the submission of a request for classified information to the Commission under subsections (f) (6) (I) and (g) (1) (A) where an executive agency simply procrastinates in responding to a congressional or GAO request for such information directed initially to the agency. We favor in the strongest terms the objective of rendering information more readily accessible to the Congress and the GAO. However, we have reservations concerning the approach employed by the bill in seeking this objective.

It has traditionally been maintained that the constitutional authority of the Congress to legislate and to oversee the operations of the Government carries with it the right to secure all information which is necessary to the exercise of these functions. See McGrain v. Dougherty, 273 U.S. 135, 160-175 (1927); see generally Berger, Executive Privilege v. Congressional Inquiry, 12 U.C.L.A. L. Rev. 1044 (1965). Accordingly, the Congress has not recognized limitations upon its authority to obtain access to information within the executive branch. Thus for example, 5 U.S.C. 2954 requires executive agencies to submit "any information requested" by the Senate or House Committee on Government Operations, or a certain number of the members thereof, "relating to any matter within the jurisdiction of the committee." In add..ion, 5 U.S.C. 552(c) provides that the exceptions from disclosure set forth in that section do not constitute authority to withhold information from Congress. We believe that GAO also has a general right of access to information within the executive branch founded upon statute, such as section 313 of the Budget and Accounting Act, 1921, 31 U.S.C. 54, and arising from the nature and functions of the agency as an investigative arm of Congress. Several provisions of the bill recognize this authority. Thus section 4 provides:

"It is the sense of the Congress that the President, in conformity with article II, section 3, and article I, section 8 of the Constitution of the United States, shall keep Congress fully and currently informed with respect to all activities of agencies covered under this Act."

In addition, subsection (f) (6) (I), as added by the bill, would require the Commission to furnish to the Congress, congressional committees, and to the Comptroller General information "necessary for Congress to discharge fully and properly all of its constitutional responsibilities." However, we question whether the determination of matters involving assertion of constitutional or statutory authority on the part of the Congress or the Comptroller General-which would ndoubtedly invoke claims of constitutional authority to the contrary on the

part of the executive branch-should be entrusted to any administrative agency. Our concern is accentuated in view of the broad and general standards set forth in proposed subsection (g) (5) (B) as follows:

**** In making such determination, the Commission shall weigh the constitutional rights and powers of the parties concerned, including (i) the extent to which such information is necessary to Congress so that Congress may fully and properly discharge its constitutional responsibilities, and (ii) the extent to which the disclosure of such information to Congress would be contrary to the public interest or would seriously endanger the national defense of the United States. *

We recognize the difficulties which confront actual attempts to exercise the right of access to classified executive information which now exist in theory; and we appreciate that the bill is designed to afford a practical remedy. It is impossible to predict whether this practical objective would be achieved. Thus, for example, while this remedy might well be of great utility in cases which would otherwise devolve into irreconcilable conflict between the legislative and executive branches, it is also possible that officials of the executive branch might employ these procedures as a device to obfuscate many requests for classified information which might presently be granted without substantial difficulty, or might seek to utilize these procedures as a general vehicle for congressional and GAO requests for such information. In any event, we believe that the responsibility which would be placed upon the Commission under subsection (g) is simply too great. As an alternative, we would favor the approach of conferring initially upon the courts the jurisdiction to be exercised by the Commission under subsection (f) (6) (I) and subsection (g). In this regard, the Comptroller General has submitted to the Congress a bill-H.R. 12114-title IV of which contains procedures for resolving in the courts access-to-records disputes between GAO and the executive branch. In view of the status of the parties, and the fundamental constitutional and other legal issues involved-which still remain generally untested-we believe that such determinations could be undertaken authoritatively by the judiciary. Moreover, the same considerations strongly suggest that, as a practical matter, most if not all of the difficult cases arising under subsection (g) would ultimately be determined by the courts through appeal and review of the Commission's orders.

If the Committee determines to follow the approach set forth in proposed subsection (g), we recommend several specific matters for consideration which are set forth as an attachment to my statement.

In addition to testimony on H.R. 12004, we were requested to address our statement to the operation of Executive Order No. 11652 in the General Accounting Office. Executive Order No. 11652 grants authority to originally classify information or material only to certain stipulated departments and agencies in the executive branch and expressly provides that any department not referred to therein shall not have authority to originally classify information or material thereunder, unless specifically authorized by an Executive order. The General Accounting Office is not included in the order. The order also provides for the issuance by the President, acting through the National Security Council, of policy directives concerning access, marking, safekeeping, accountability, transmission, disposition and destruction of classified information and material. It is the position of our Office that in view of the fact that we are an agency in the Legislative branch of the Government, we are not subject to the provisions of Executive Order No. 11652. Moreover, we do not originally classify any information or material. As stated previously, in the course of performing our work we frequently find it necessary to quote, paraphrase, refer to, or comment upon national defense information originally classified by executive agencies. It is our practice in this regard to employ the classification imposed by such agencies. Likewise, while we do not believe we are subject to the Executive order, our practice concerning access, marking, safekeeping, accountability, transmission, disposition and destruction of classified information and material conforms to the policy directives issued under such order.

This concludes our statement, Mr. Chairman. We will be glad to answer any questions.

ATTACHMENT 1

DETAILED COMMENTS ON PROPOSED SUBSECTION (g) or 5 U.S.C. 552

Under paragraph (7)(A) of subsection (g), the Commission would be authorized to enter an order in each case arising under this subsection "either

granting or denying the request." In order to afford greater flexibility, the Committee might wish to change this language, at page 26, lines 2 and 3 of the bill, to read:

"*** the Commission is authorized to enter an order in each case granting or denying the request, in whole or in part."

Paragraph (8) (A) of subsection (g) would vest in the United States Court of Appeals for the District of Columbia exclusive original jurisdiction to review final decisions of the Commission "upon complaint filed by a party to the proceeding at which such decision was made * The Commission is not granted authority to enforce its decisions; and paragraph (8) (C) provides that the procedure set forth in paragraph (8) (A), together with the further right of appeal to the Supreme Court, shall be the exclusive mode of judicial review. It is not entirely clear what result would follow if the Commission entered a final order granting a request and the party against whom the order was directed neither complied nor filed a complaint. In other words, there might be some doubt whether paragraph (8)(A) extends to complaints for enforcement. Accordingly, the Committee might wish to change the language of paragraph (8) (A), at page 27, lines 2 and 3 of the bill, to read as follows:

“*** upon complaint filed by a party to the proceeding at which such decision was made, either seeking to enforce or to set aside such decision * * *.”

Finally, it appears that the standards set forth in paragraph (5) (B) of subsection (g) impliedly encompass the so-called "doctrine of executive privilege"; or would at least authorize the Commission to do so. Whether legislative recognition should be given to "executive privilege" is, of course, a matter for determination by the Congress. However, we believe that if the doctrine is recognized, its exercise should be restricted to the President alone.

Mr. MOORHEAD. As you go through, can you keep the subcommittee advised where you are?

Mr. DEMBLING. All right, sir.

We appreciate the opportunity to appear before your committee at your request to testify on H.R. 12004. This bill would amend the Freedom of Information Act to provide a statutory system for the classification, downgrading, and declassification of official information in the interest of national defense.

Section 3 of the bill would amend section 552 of title 5 of the United States Code by adding new subsections. These subsections would establish detailed procedures and limitations concerning the classification, downgrading, and declassification of information in the interest of national defense, to be known as national defense information.

Subsection (d) (2) (A) would limit to certain specified agencies authority to "originally" classify national defense information. Subsection (d) (4) would make it unlawful for any other agency to "classify" information in the interest of national defense.

These provisions do not take into consideration situations in which any agency not granted authority under (d) (2) (A) must deal with information originally classified by an agency included under subsection (d) (2) (A).

It is not completely clear whether an excluded agency which, for example, applies the original classification in quoting, paraphrasing, referring to, or commenting upon classified national defense information has thereby classified its version of such information in violation. of subsection (d) (4). This matter is of particular interest to the General Accounting Office since our reporting responsibilities often involve matters originally classified by executive agencies.

Our present practice in this regard is to employ in our reports the classification imposed by such agencies. In fact, our access to classified information has been conditioned upon compliance with executive branch classification restrictions.

While we have consistently taken the position that GAO is not an agency within the meaning of 5 U.S.C. 551 (1), the Freedom of Information Act, it has been our policy to follow the requirements of 5 U.S.C. 500 et seq. to the extent that such provisions are not inconsistent with the nature and functions of GAO. Accordingly, we suggest that this matter be clarified by inserting the word "originally" after the comma and before the word "classify" in proposed subsection (d) (4), at page 5, line 10 of the bill.

Subsection (f), as added by the bill, would establish a commission composed of nine members, appointed by the President by and with the advice and consent of the Senate.

The Commission would have the authority, among other things, to promulgate regulations to carry out subsections (d) through (g); to prescribe standards and procedures concerning the handling of national defense information; to hold hearings; to secure such information as it may require; to issue subpenas, to issue decisions, orders, and directives to carry out the provisions of subsections (d) through (g); to make annual reports of its activities; and to conduct continuing investigations and appraisals of classification policies and procedures. Paragraph (6) (H) of subsection (f) would require the Commission to investigate, upon the vote of at least three of its members, inquiries initiated by any person concerning any allegation of improper classification of national defense information or any failure to comply with the provisions of subsection (d) or (e) or regulations, standards, procedures, decisions, orders or directives of the Commission.

The Commission would also publish a report describing the results of its investigations and, when appropriate, refer matters to the Attorney General.

It appears that the Commission might employ its authority to issue decisions and orders for the purpose of effecting remedies with respect to specific matters arising under paragraph (6) (H), as, for example, ordering the disclosure of information determined to be improperly classified. However, the bill does not expressly so provide. Moreover, the bill does not set forth specific administrative procedures or a mode of judicial review for application under subsections (f) (6) (E) and (H).

By contrast, subsection (g), would affirmatively establish a comprehensive system for the adjudication of congressional and GAO requests for information.

If subsections (f) (6) (E) and (H) are intended to provide an administrative remedy in specific cases, the committee might wish to consider application of procedures similar to those to be provided under subsection (g). The committee might also wish to clarify the relationship between that remedy and the judicial remedy now provided under 5 U.S.C. 552(a) (3), which would be retained.

As the chairman of this committee has explained, and did explain when he introduced this bill, evidently the Executive order approach has been unworkable.

In view of mounting interest and concern regarding the problem of excessive use in government of classification and secrecy, and the desirable objective of assuring the widest dissemination of information con