IT IS TIME TO ESTABLISH CONGRESSIONAL OVERSIGHT ON WHITE HOUSE NATIONAL SECURITY DECISIONS -- H.R. -- (Extension of Remarks - June 04, 1991)
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- Mr. CONYERS. Mr. Speaker, today I am introducing, on behalf of myself and Mr. Brooks, chairman of the Committee on the Judiciary and former chairman of the Committee on Government Operations, and Mr. Hamilton, chairman of the Subcommittee on Europe and the Middle East, the Presidential Directives and Records Accountability Act.
- The purpose of this bill is to establish a routine process for congressional oversight on the issuance of national security directives. This bill seeks to bring these critical decision documents under the control of the law and provide for increased public accountability.
- National security decision directives, now called NSD's or NSDD's under prior administrations form a significant body of national law and policy. They may regulate anything from the war on drugs, to policy governing space exploration, to nuclear proliferation, to actions in the Persian Gulf. They are, however, cloaked in secrecy. They are not called to the attention of anyone outside the executive branch, even after they are declassified. This legislation would bring them under an appropriate level of congressional oversight.
- This is intended to treat NSD's the same manner as other Presidential directives. If the President issues an Executive order or other proclamation, that directive must be registered pursuant to the terms of the Federal Register Act. However, directives such as NSD's are not covered. This bill would extend the coverage of the Federal Register Act to any Presidential directive which establishes policy, directs the carrying out of law or policy, authorizes or requires the use of appropriated funds or other resources--including personnel, or otherwise asserts or appears to assert an authority of the President.
- I believe that the excesses of recent years are a clear warning that secret policymaking is dangerous to our national government. Under our Constitution, the Congress is an equal partner in the creation and development of national policy. All too often we have discovered that the executive branch has been carrying out policies of which Congress has not been informed. On occasion, particularly during the Iran-Contra affair, the executive branch has acted despite the law. We all remember that the Iran-Contra scandal was launched by Presidential directives not shared with Congress because the authors of this criminal act knew the Congress would know better.
- During the past year, as chairman of the Government Operations Committee, I have been engaged in an ongoing dialog, with General Scowcroft, the President's National Security Adviser. The White House has refused to provide even a list of NSD's issued by the Bush administration. I did not seek the actual NSD's themselves, just a numbered list with the titles and a brief summary of each.
- It is interesting to note that the National Security Adviser and his legal counsel insist that they do provide to the appropriate congressional committees information about relevant policies when asked to do so. Unfortunately, there is no way for congressional committees to know about the existence of these executive policy directives when they are cloaked in secrecy. Similarly, when Congress is not informed, how can it know of new directives which replace old policies or which break new ground?
- This bill would place no restrictions upon the President's authority to establish and carry out national policy. It would only require that such policies be numbered and registered with the Office of the Federal Register and that copies of each such directive be transmitted to the Speaker of the House and the President of the Senate. If necessary for reasons of national security, they could be classified.
- If such a practice had been in effect during the decade of the eighties, Congress would have had an early-warning system which might have permitted us to escape the disastrous consequences of the failed Iran hostage policy.
- Until recently the executive branch claimed the need for such excessive secrecy about national policy because of the exigencies of the cold war and the Soviet threat. That threat has now evaporated. It is time for the executive to recognize that the Congress is not an adversary from whom its policies must be concealed.
- The text of the bill follows:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Presidential Directives and Records Accountability Act'.
SEC. 2. CONTROL OF THE USE OF EXECUTIVE DIRECTIVES.
(a) Definition of Executive Directive.--Section 1501 of title 44, United States Code, is amended--
(1) by designating the 4 indented paragraphs thereof in order as paragraphs (1), (2), (3), and (4);
(2) in paragraph (3), as so designated by striking `and' after the semicolon at the end;
(3) in paragraph (4), as so redesignated, by striking the period at the end and inserting `; and'; and
(4) by adding at the end the following new paragraph:
`(5) `Executive directive' means any written instrument, other than a Presidential proclamation or Executive order, that--
`(A) is signed or endorsed by, or is issued at the direction of, the President, or an appointee in the Executive office of the President; and
`(B)(i) establishes policy, (ii) directs the carrying out of law or
policy, (iii) authorizes or requires the use of appropriated funds or other
resources (including personnel), or (iv) otherwise asserts or appears to
assert an authority of the President;
except that such term does not include a finding under section 662 of the
Foreign Assistance Act of 1961 (22 U.S.C. 2422).'.
(b) Filing and Registration of Executive Directives.--Section 1503 of title 44, United States Code, is amended--
(1) by inserting `and directives' after `Filing documents' in the heading of such section;
(2) by designating the text of such section as subsection (a); and
(3) by adding at the end the following new subsection:
`(b)(1) The original and 3 duplicate originals or certified copies of each
Executive directive shall be filed with the Office of the Federal Register on
the next business day following the date the Executive directive is issued.
The Archivist of the United States shall cause to be noted on the original
and copies of each such Executive directive the day and hour of the filing
and shall number such filings sequentially in the order filed. The original
of all Executive directives shall be permanently retained as a part
of the Archives of the United States.
`(2) Upon filing, one copy of each Executive directive shall be immediately transmitted by the head of the Office of Records Management to each of the Speaker of the House of Representatives and the President pro tempore of the Senate. In the case of directives which contain information which may be withheld from disclosure under section 552(b)(1) of title 5, such copies shall be transmitted and maintained in the manner required by the rules and procedures of the House of Representatives and the Senate, respectively, to protect the information therein from improper disclosure.'.
SEC. 3. PROTECTION OF PRESIDENTIAL AND OTHER FEDERAL RECORDS.
(a) Informing Employees of Presidential Records Act Requirements: Chapter 22 of title 44, United States Code, is amended by adding at the end the following new section:
`2208. Informing Employees of Requirements
`(a) Each officer or employee who is appointed or detailed to, or otherwise employed in, a position in the Executive Office of the President or Vice President, or on the immediate staff of the President or Vice President, shall receive, and shall at the time of employment sign a receipt for, a notice describing the requirements of this chapter and of the procedures for controlling, managing, and preserving Presidential or Vice Presidential records.
`(b) Each such officer or employee shall, at the time of vacating any such position, receive a copy of the notice required by subsection (a) shall be prepared jointly by the Archivist and the counsel to the President.'.
(b) Establishment of Office of Records Management: Chapter 22 of title 44, United States Code, is further amended by adding at the end the following new section:
`2209. Office of Records Management.
`There shall be in the Executive Office of the President an Office of Records Management. The Office shall be responsible for securing compliance with the requirements of this chapter and for carrying out such other functions as may be assigned by the President. The Office shall consult with the Archivist before making any significant change in the practices or procedures used to secure such compliance.'.
(c) Authority of the Archivist To Define Record: Section 3301 of title 44, United States Code, is amended by adding at the end the following: `The Archivist of the United States shall have final authority in the Executive branch to determine what constitutes such a record for purposes of chapter 21 through 33 of this title and may issue such rules, regulations, and guidelines as may be necessary for such purposes.'.
(d) Conforming and Technical Amendments:
(1) Chapter analysis: The analysis for chapter 22 of title 44, United States Code, is amended--
(A) by striking out the item pertaining to section 2205 and inserting the following:
`2205. Exceptions to restricted access.'
and
(B) by inserting after the item pertaining to section 2207 the following:
`2208. Information employees of requirements.
`2209. Office of Record Management.'.
(2) Technical Correction: Section 2201(3) of title 44, United States Code, is amended by striking `thereof' and inserting `thereof'.
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