Tuesday, June 1, 2010

HR 553 Reported in Senate

Last week the Senate Homeland Security and Governmental Affairs Committee finally got around to publishing their report on HR 553, the Reducing Over-Classification Act. The Committee held their hearing on this bill back in November of last year and ordered the bill reported favorably; on Wednesday that report was officially filed and the GPO posted the official copy of that report on Friday. This is just one of a number of delinquent reports that we should be seeing in the coming weeks. This report is important because the Committee made some important changes to the legislation, changes that had not been available for public scrutiny until this report was published. Actually the reported version of the bill is a substantial re-write of the original bill that passed in the House back in February of 2009. The original bill was the work of Rep. Harmon (D, CA) and was intended to reduce the over classification of information in the Department of Homeland Security so that more information could be more easily shared with State and local governments and private entities responsible for protecting critical infrastructure and key resources (CIKR). The Senate bill extends the reach of this bill well beyond just DHS and makes it specifically targeted at intelligence information. Classified Information Advisory Officer In DHS it would require the designation of a Classified Information Advisory Officer to “assist State, local, tribal, and private sector entities that have responsibility for the security of critical infrastructure, in matters related to classified materials” (S. Rept 111-200, pg 5). The ‘private sector entities’ would certainly include high-risk chemical facilities under CFATS. The report makes it clear that the Committee intends for this Officer to “serve as both a valuable resource for information and an advocate for these non-federal entities”. Intelligence Dissemination Probably the most important part of this revised bill is the establishment of procedures to try to make counter-terrorism intelligence information more available for those that are actually charged with protecting CIKR. It would specifically task the Director of National Intelligence with ensuring the maximum sharing of intelligence sharing with “appropriately-cleared individuals in federal, State, local and tribal governments” (pg 6). I am disappointed that this section (Section 4) does not include ‘private sector entities that have responsibility for the security of critical infrastructure’, but that is probably because DHS would be the agency responsible for that specific communication. I would still have preferred to see that specifically mentioned in this section. The revised bill would require the standardization of format for intelligence products and require portion marking of those products to ensure that it is clear what portions of the intelligence reports is actually classified (which is already included in the general rules for marking classified documents). Then it would require each intelligence agency to determine which reports “could benefit a state, local, or tribal government, law enforcement agency, or private sector entity” (pg 7) and forward those reports to the Interagency Threat Assessment and Coordination Group (ITACG). The ITACG would then recommend to the DHS Undersecretary for Intelligence and Analysis (DHS I&A) to “produce a product at the lowest possible classification level that can be provided to appropriate entities” (pg 7). While first responders are specifically mentioned as a potential target audience (a great idea) of such reports, I am again concerned that ‘private entities’ are not mentioned. There does appear to be enough ‘buts’ and ‘ifs’ in the language to allow for adequate protection of ‘methods and sources’. This has always been the (semi) legitimate justification for keeping intelligence reports closely held. The parenthetical ‘semi’ is there because this justification has been used on occasion to provide cover for things completely separate from methods and sources. The one short coming in this legislation is that it still solely relies on intelligence agencies to voluntarily share their information with ITACG. While the agency IG’s are tasked with reporting on accurate classification efforts, there is no requirement for independent verification of the sharing of appropriate information with ITACG. I think that it would be beneficial for the provision of a officer in the Office of the DNI to review compliance with this sharing requirement. Preventing Over-Classification Only two sections in the bill address the original intent of HR 553, the prevention of over classification of information. It doesn’t appear that these provisions are nearly as robust at those proposed by Rep. Harmon, but they will have some affect the on the level of classification of intelligence information. The Way Forward This bill is now on the Senate Legislative Calendar and has a reasonable chance of being brought to the floor and being approved by the Senate in June. There doesn’t appear to be anything of significant political interest to delay its consideration. The bill will then have to go to Conference because of the Senate changes to the bill. The House has generally been slow to appoint conferees to bills during this session, so it isn’t clear that the bill could come to a final vote in both Houses before the summer recess. Even so, this bill could probably pass after the summer recess, even in this contentious election year.

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