[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 2794 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
1st Session
S. 2794
To provide for the creation of the Missing Armed Forces Personnel
Records Collection at the National Archives, to require the expeditious
public transmission to the Archivist and public disclosure of Missing
Armed Forces Personnel records, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 6, 2019
Mr. Crapo (for himself and Mrs. Shaheen) introduced the following bill;
which was read twice and referred to the Committee on Homeland Security
and Governmental Affairs
_______________________________________________________________________
A BILL
To provide for the creation of the Missing Armed Forces Personnel
Records Collection at the National Archives, to require the expeditious
public transmission to the Archivist and public disclosure of Missing
Armed Forces Personnel records, and for other purposes.
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 ``Bring Our Heroes Home Act''.
SEC. 2. FINDINGS, DECLARATIONS, AND PURPOSES.
(a) Findings and Declarations.--Congress finds and declares the
following:
(1) A vast number of records relating to Missing Armed
Forces Personnel have not been identified, located, or
transferred to the National Archives following review and
declassification. Only in the rarest cases is there any
legitimate need for continued protection of records pertaining
to Missing Armed Forces Personnel who have been missing for
decades.
(2) There has been insufficient priority placed on
identifying, locating, reviewing, or declassifying records
relating to Missing Armed Forces Personnel and then
transferring the records to the National Archives for public
access.
(3) Mandates for declassification set forth in multiple
Executive orders have been broadly written, loosely
interpreted, and often ignored by Federal agencies in
possession and control of records related to Missing Armed
Forces Personnel.
(4) No individual or entity has been tasked with oversight
of the identification, collection, review, and declassification
of records related to Missing Armed Forces Personnel.
(5) The interest, desire, workforce, and funding of Federal
agencies to assemble, review, and declassify records relating
to Missing Armed Forces Personnel have been lacking.
(6) All records of the Federal Government relating to
Missing Armed Forces Personnel should be preserved for
historical and governmental purposes and for public research.
(7) All records of the Federal Government relating to
Missing Armed Forces Personnel should carry a presumption of
declassification, and all such records should be disclosed
under this Act to enable the fullest possible accounting for
Missing Armed Forces Personnel.
(8) Legislation is necessary to create an enforceable,
independent, and accountable process for the public disclosure
of records relating to Missing Armed Forces Personnel.
(9) Legislation is necessary because section 552 of title
5, United States Code (commonly known as the ``Freedom of
Information Act''), as implemented by Federal agencies, has
prevented the timely public disclosure of records relating to
Missing Armed Forces Personnel.
(b) Purposes.--The purposes of this Act are--
(1) to provide for the creation of the Missing Armed Forces
Personnel Records Collection at the National Archives; and
(2) to require the expeditious public transmission to the
Archivist and public disclosure of Missing Armed Forces
Personnel records, subject to narrow exceptions, as set forth
in this Act.
SEC. 3. DEFINITIONS.
In this Act:
(1) Archivist.--The term ``Archivist'' means Archivist of
the United States.
(2) Collection.--The term ``Collection'' means the Missing
Armed Forces Personnel Records Collection established under
section 4(a).
(3) Executive agency.--The term ``Executive agency''--
(A) means an agency, as defined in section 552(f)
of title 5, United States Code; and
(B) includes any Executive department, military
department, Government corporation, Government
controlled corporation, or other establishment in the
executive branch of the Federal Government, including
the Executive Office of the President, any branch of
the Armed Forces, and any independent regulatory
agency.
(4) Executive branch missing armed forces personnel
record.--The term ``executive branch Missing Armed Forces
Personnel record'' means a Missing Armed Forces Personnel
record of an Executive agency, or information contained in such
a Missing Armed Forces Personnel record obtained by or
developed within the executive branch of the Federal
Government.
(5) Government office.--The term ``Government office''
means an Executive agency, the Library of Congress, or the
National Archives.
(6) Missing armed forces personnel.--
(A) Definition.--The term ``Missing Armed Forces
Personnel'' means 1 or more missing persons.
(B) Inclusions.--The term ``Missing Armed Forces
Personnel'' includes an individual who was a missing
person and whose status was later changed to ``missing
and presumed dead''.
(7) Missing armed forces personnel record.--The term
``Missing Armed Forces Personnel record'' means a record that
relates, directly or indirectly, to the loss, fate, or status
of Missing Armed Forces Personnel that--
(A) was created or made available for use by,
obtained by, or otherwise came into the custody,
possession, or control of--
(i) any Government office;
(ii) any Presidential library; or
(iii) any of the Armed Forces; and
(B) relates to 1 or more Missing Armed Forces
Personnel who became missing persons during the
period--
(i) beginning on December 7, 1941; and
(ii) ending on the date of enactment of
this Act.
(8) Missing person.--The term ``missing person'' has the
meaning given that term in section 1513 of title 10, United
States Code.
(9) National archives.--The term ``National Archives''--
(A) means the National Archives and Records
Administration; and
(B) includes any component of the National Archives
and Records Administration (including Presidential
archival depositories established under section 2112 of
title 44, United States Code).
(10) Official investigation.--The term ``official
investigation'' means a review, briefing, inquiry, or hearing
relating to Missing Armed Forces Personnel conducted by a
Presidential commission, committee of Congress, or agency,
regardless of whether it is conducted independently, at the
request of any Presidential commission or committee of
Congress, or at the request of any official of the Federal
Government.
(11) Originating body.--The term ``originating body'' means
the Government office or other initial source that created a
record or particular information within a record.
(12) Public interest.--The term ``public interest'' means
the compelling interest in the prompt public disclosure of
Missing Armed Forces Personnel records for historical and
governmental purposes, for public research, and for the purpose
of fully informing the people of the United States, most
importantly families of Missing Armed Forces Personnel, about
the fate of the Missing Armed Forces Personnel and the process
by which the Federal Government has sought to account for them.
(13) Record.--The term ``record'' has the meaning given the
term ``records'' in section 3301 of title 44, United States
Code.
(14) Review board.--The term ``Review Board'' means the
Missing Armed Forces Personnel Records Review Board established
under section 7.
SEC. 4. MISSING ARMED FORCES PERSONNEL RECORDS COLLECTION AT THE
NATIONAL ARCHIVES.
(a) Establishment of Collection.--Not later than 90 days after the
date of enactment of this Act, the Archivist shall--
(1) commence establishment of a collection of records to be
known as the ``Missing Armed Forces Personnel Records
Collection'';
(2) commence preparing the subject guidebook and index to
the Collection; and
(3) establish criteria for Executive agencies to follow
when transmitting copies of Missing Armed Forces Personnel
Records to the Archivist, to include required metadata.
(b) Regulations.--Not later than 180 days after the date of
enactment of this Act, the Review Board shall promulgate rules to
establish guidelines and processes for the disclosure of records
contained in the Collection.
SEC. 5. REVIEW, IDENTIFICATION, TRANSMISSION TO THE NATIONAL ARCHIVES,
AND PUBLIC DISCLOSURE OF MISSING ARMED FORCES PERSONNEL
RECORDS BY GOVERNMENT OFFICES.
(a) In General.--
(1) Preparation.--As soon as practicable after the date of
enactment of this Act, and sufficiently in advance of the
deadlines established under this Act, each Government office
shall--
(A) identify and locate any Missing Armed Forces
Personnel records in the custody, possession, or
control of the Government office; and
(B) prepare for transmission to the Archivist in
accordance with the criteria established by the
Archivist a copy of any Missing Armed Forces Personnel
records that have not previously been transmitted to
the Archivist by the Government office.
(2) Certification.--Each Government office shall submit to
the Archivist, under penalty of perjury, a certification
indicating--
(A) whether the Government office has conducted a
thorough search for all Missing Armed Forces Personnel
records in the custody, possession, or control of the
Government office; and
(B) whether a copy of any Missing Armed Forces
Personnel record has not been transmitted to the
Archivist.
(3) Preservation.--No Missing Armed Forces Personnel record
shall be destroyed, altered, or mutilated in any way.
(4) Effect of previous disclosure.--Information that was
made available or disclosed to the public before the date of
enactment of this Act in a Missing Armed Forces Personnel
record may not be withheld, redacted, postponed for public
disclosure, or reclassified.
(5) Withheld and substantially redacted records.--For any
Missing Armed Forces Personnel record that is transmitted to
the Archivist which a Government office proposes to
substantially redact or withhold in full from public access,
the head of the Government office shall submit an unclassified
and publicly releasable report to the Archivist, the Review
Board, and each appropriate committee of the Senate and the
House of Representatives justifying the decision of the
Government office to substantially redact or withhold the
record by demonstrating that the release of information would
clearly and demonstrably be expected to cause an articulated
harm, and that the harm would be of such gravity as to outweigh
the public interest in access to the information.
(b) Review.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, each Government office shall, in
accordance with the criteria established by the Archivist and
the rules promulgated under paragraph (2)--
(A) identify, locate, copy, and review each Missing
Armed Forces Personnel record in the custody,
possession, or control of the Government office for
transmission to the Archivist and disclosure to the
public or, if needed, review by the Review Board; and
(B) cooperate fully, in consultation with the
Archivist, in carrying out paragraph (3).
(2) Requirement.--The Review Board shall promulgate rules
for the disclosure of relevant records by Government offices
under paragraph (1).
(3) National archives records.--Not later than 180 days
after the date of enactment of this Act, the Archivist shall--
(A) locate and identify all Missing Armed Forces
Personnel records in the custody of the National
Archives as of the date of enactment of this Act that
remain classified, in whole or in part;
(B) notify a Government office if the Archivist
locates and identifies a record of the Government
office under subparagraph (A); and
(C) make each classified Missing Armed Forces
Personnel record located and identified under
subparagraph (A) available for review by Executive
agencies through the National Declassification Center
established under Executive Order 13526.
(4) Records already public.--A Missing Armed Forces
Personnel record that is in the custody of the National
Archives on the date of enactment of this Act and that has been
publicly available in its entirety without redaction shall be
made available in the Collection without any additional review
by the Archivist, the Review Board, or any other Government
office under this Act.
(c) Transmission to the National Archives.--Each Government office
shall--
(1) not later than 180 days after the date of enactment of
this Act, commence transmission to the Archivist of copies of
the Missing Armed Forces Personnel records in the custody,
possession, or control of the Government office; and
(2) not later than 1 year after the date of enactment of
this Act, complete transmission to the Archivist of copies of
all Missing Armed Forces Personnel records in the possession or
control of the Government office.
(d) Periodic Review of Postponed Missing Armed Services Personnel
Records.--
(1) In general.--All Missing Armed Forces Personnel
records, or information within a Missing Armed Forces Personnel
record, the public disclosure of which has been postponed under
the standards under this Act shall be reviewed by the
originating body--
(A)(i) periodically, but not less than every 5
years, after the date on which the Review Board
terminates under section 7(o); and
(ii) at the direction of the Archivist; and
(B) consistent with the recommendations of the
Review Board under section 9(b)(3)(B).
(2) Contents.--
(A) In general.--A periodic review of a Missing
Armed Forces Personnel record, or information within a
Missing Armed Forces Personnel record, by the
originating body shall address the public disclosure of
the Missing Armed Forces Personnel record under the
standards under this Act.
(B) Continued postponement.--If an originating body
conducting a periodic review of a Missing Armed Forces
Personnel record, or information within a Missing Armed
Forces Personnel record, the public disclosure of which
has been postponed under the standards under this Act,
determines that continued postponement is required, the
originating body shall provide to the Archivist an
unclassified written description of the reason for the
continued postponement that the Archivist shall
highlight and make accessible on a publicly accessible
website administered by the National Archives.
(C) Scope.--The periodic review of postponed
Missing Armed Forces Personnel records, or information
within a Missing Armed Forces Personnel record, shall
serve the purpose stated in section 2(b)(2), to provide
expeditious public disclosure of Missing Armed Forces
Personnel records, to the fullest extent possible,
subject only to the grounds for postponement of
disclosure under section 6.
(D) Disclosure absent certification by president.--
Not later than 10 years after the date of enactment of
this Act, all Missing Armed Forces Personnel records,
and information within a Missing Armed Forces Personnel
record, shall be publicly disclosed in full, and
available in the Collection, unless--
(i) the head of the originating body,
Executive agency, or other Government office
recommends in writing that continued
postponement is necessary;
(ii) the written recommendation described
in clause (i)--
(I) is provided to the Archivist in
unclassified and publicly releasable
form not later than 180 days before the
date that is 10 years after the date of
enactment of this Act; and
(II) includes--
(aa) a justification of the
recommendation to postpone
disclosure with clear and
convincing evidence that the
identifiable harm is of such
gravity that it outweighs the
public interest in disclosure;
and
(bb) a recommended
specified time at which or a
specified occurrence following
which the material may be
appropriately disclosed to the
public under this Act;
(iii) the Archivist transmits all
recommended postponements and the
recommendation of the Archivist to the
President not later than 90 days before the
date that is 10 years after the date of
enactment of this Act; and
(iv) the President transmits to the
Archivist a certification indicating that
continued postponement is necessary and the
identifiable harm, as demonstrated by clear and
convincing evidence, is of such gravity that it
outweighs the public interest in disclosure not
later than the date that is 10 years after the
date of enactment of this Act.
SEC. 6. GROUNDS FOR POSTPONEMENT OF PUBLIC DISCLOSURE OF RECORDS.
(a) In General.--Disclosure to the public of a Missing Armed Forces
Personnel record or particular information in a Missing Armed Forces
Personnel record created after the date that is 25 years before the
date of the review of the Missing Armed Forces Personnel record by the
Archivist may be postponed subject to the limitations under this Act
only--
(1) if it pertains to--
(A) military plans, weapons systems, or operations;
(B) foreign government information;
(C) intelligence activities (including covert
action), intelligence sources or methods, or
cryptology;
(D) foreign relations or foreign activities of the
United States, including confidential sources;
(E) scientific, technological, or economic matters
relating to the national security;
(F) United States Government programs for
safeguarding nuclear materials or facilities;
(G) vulnerabilities or capabilities of systems,
installations, infrastructures, projects, plans, or
protection services relating to the national security;
or
(H) the development, production, or use of weapons
of mass destruction; and
(2) the threat posed by the public disclosure of the
Missing Armed Forces Personnel record or information is of such
gravity that it outweighs the public interest in disclosure.
(b) Older Records.--Disclosure to the public of a Missing Armed
Forces Personnel record or particular information in a Missing Armed
Forces Personnel record created on or before the date that is 25 years
before the date of the review of the Missing Armed Forces Personnel
record by the Archivist may be postponed subject to the limitations
under this Act only if, as demonstrated by clear and convincing
evidence--
(1) the release of the information would be expected to--
(A) reveal the identity of a confidential human
source, a human intelligence source, a relationship
with an intelligence or security service of a foreign
government or international organization, or a nonhuman
intelligence source, or impair the effectiveness of an
intelligence method currently in use, available for
use, or under development;
(B) reveal information that would impair United
States cryptologic systems or activities;
(C) reveal formally named or numbered United States
military war plans that remain in effect, or reveal
operational or tactical elements of prior plans that
are contained in such active plans; or
(D) reveal information, including foreign
government information, that would cause serious harm
to relations between the United States and a foreign
government, or to ongoing diplomatic activities of the
United States; and
(2) the threat posed by the public disclosure of the
Missing Armed Forces Personnel record or information is of such
gravity that it outweighs the public interest in disclosure.
(c) Exception.--Regardless of the age of a Missing Armed Forces
Personnel record--the date on which a Missing Armed Forces Personnel
record was created--disclosure to the public of information in the
Missing Armed Forces Personnel record may be postponed if--
(1) the public disclosure of the information would reveal
the name or identity of a living person who provided
confidential information to the United States and would pose a
substantial risk of harm to that person;
(2) the public disclosure of the information could
reasonably be expected to constitute an unwarranted invasion of
personal privacy, and that invasion of privacy is so
substantial that it outweighs the public interest; or
(3) the public disclosure of the information could
reasonably be expected to cause harm to the methods currently
in use or available for use by members of the Armed Forces to
survive, evade, resist, or escape.
SEC. 7. ESTABLISHMENT AND POWERS OF THE MISSING ARMED FORCES PERSONNEL
RECORDS REVIEW BOARD.
(a) Establishment.--There is established as an independent
establishment in the executive branch a board to be known as the
``Missing Armed Forces Personnel Records Review Board''.
(b) Membership.--
(1) Appointments.--The President shall appoint, by and with
the advice and consent of the Senate, 5 individuals to serve as
a member of the Review Board to ensure and facilitate the
review, transmission to the Archivist, and public disclosure of
Missing Armed Forces Personnel records.
(2) Qualifications.--The President shall appoint
individuals to serve as members of the Review Board--
(A) without regard to political affiliation;
(B) who are citizens of the United States of
integrity and impartiality;
(C) who are not an employee of an Executive agency
on the date of the appointment;
(D) who have high national professional reputation
in their fields who are capable of exercising the
independent and objective judgment necessary to the
fulfillment of their role in ensuring and facilitating
the identification, location, review, transmission to
the Archivist, and public disclosure of Missing Armed
Forces Personnel records;
(E) who possess an appreciation of the value of
Missing Armed Forces Personnel records to scholars, the
Federal Government, and the public, particularly
families of Missing Armed Forces Personnel;
(F) not less than 1 of whom is a professional
historian; and
(G) not less than 1 of whom is an attorney.
(3) Deadlines.--
(A) In general.--Not later than 60 days after the
date of enactment of this Act, the President shall
submit nominations for all members of the Review Board.
(B) Confirmation rejected.--If the Senate votes not
to confirm a nomination to serve as a member of the
Review Board, not later than 90 days after the date of
the vote the President shall submit the nomination of
an additional individual to serve as a member of the
Review Board.
(4) Consultation.--The President shall make nominations to
the Review Board after considering individuals recommended by
the American Historical Association, the Organization of
American Historians, the Society of American Archivists, the
American Bar Association, veterans' organizations, and
organizations representing families of Missing Armed Forces
Personnel.
(c) Security Clearances.--The appropriate departments, agencies,
and elements of the executive branch of the Federal Government shall
cooperate to ensure that an application by an individual nominated to
be a member of the Review Board, seeking security clearances necessary
to carry out the duties of the Review Board, is expeditiously reviewed
and granted or denied.
(d) Confirmation.--
(1) Hearings.--Not later than 30 days on which the Senate
is in session after the date on which not less than 3
individuals have been nominated to serve as members of the
Review Board, the Committee on Homeland Security and
Governmental Affairs of the Senate shall hold confirmation
hearings on the nominations.
(2) Committee vote.--Not later than 14 days on which the
Senate is in session after the date on which the Committee on
Homeland Security and Governmental Affairs holds a confirmation
hearing on the nomination of an individual to serve as a member
of the Review Board, the committee shall vote on the nomination
and report the results to the full Senate immediately.
(3) Senate vote.--Not later than 14 days on which the
Senate is in session after the date on which the Committee on
Homeland Security and Governmental Affairs reports the results
of a vote on a nomination of an individual to serve as a member
of the Review Board, the Senate shall vote on the confirmation
of the nominee.
(e) Vacancy.--Not later than 60 days after the date on which a
vacancy on the Review Board occurs, the vacancy shall be filled in the
same manner as specified for original appointment.
(f) Chairperson.--The members of the Review Board shall elect a
member as Chairperson at the initial meeting of the Review Board.
(g) Removal of Review Board Member.--
(1) In general.--A member of the Review Board shall not be
removed from office, other than--
(A) by impeachment by Congress; or
(B) by the action of the President for
inefficiency, neglect of duty, malfeasance in office,
physical disability, mental incapacity, or any other
condition that substantially impairs the performance of
the member's duties.
(2) Judicial review.--
(A) In general.--A member of the Review Board
removed from office may obtain judicial review of the
removal in a civil action commenced in the United
States District Court for the District of Columbia.
(B) Relief.--The member may be reinstated or
granted other appropriate relief by order of the court.
(h) Compensation of Members.--
(1) Basic pay.--A member of the Review Board shall be
compensated at a rate equal to the daily equivalent of the
annual rate of basic pay prescribed for level IV of the
Executive Schedule under section 5315 of title 5, United States
Code, for each day (including travel time) during which the
member is engaged in the performance of the duties of the
Review Board.
(2) Travel expenses.--A member of the Review Board shall be
allowed reasonable travel expenses, including per diem in lieu
of subsistence, at rates for employees of agencies under
subchapter I of chapter 57 of title 5, United States Code,
while away from the member's home or regular place of business
in the performance of services for the Review Board.
(i) Duties of the Review Board.--
(1) In general.--The Review Board shall consider and render
a decision on a determination by a Government office to seek to
postpone the disclosure of a Missing Armed Forces Personnel
record, in whole or in part.
(2) Records.--In carrying out paragraph (1), the Review
Board shall consider and render a decision regarding--
(A) whether a record constitutes a Missing Armed
Forces Personnel record; and
(B) whether a Missing Armed Forces Personnel
record, or particular information in a Missing Armed
Forces Personnel record, qualifies for postponement of
disclosure under this Act.
(j) Powers.--The Review Board shall have the authority to act in a
manner prescribed under this Act, including authority to--
(1) direct Government offices to transmit to the Archivist
Missing Armed Forces Personnel records as required under this
Act;
(2) direct Government offices to transmit to the Archivist
substitutes and summaries of Missing Armed Forces Personnel
records that can be publicly disclosed to the fullest extent
for any Missing Armed Forces Personnel record that is proposed
for postponement;
(3) obtain access to Missing Armed Forces Personnel records
that have been identified by a Government office;
(4) direct a Government office to make available to the
Review Board, and if necessary investigate the facts
surrounding, additional information, records, or testimony from
individuals, which the Review Board has reason to believe is
required to fulfill its functions and responsibilities under
this Act;
(5) hold such hearings, sit and act at such times and
places, take such testimony, receive such evidence, and
administer such oaths as the Review Board considers advisable
to carry out its responsibilities under this Act;
(6) hold individuals in contempt for failure to comply with
directives and mandates issued by the Review Board under this
Act, which shall not include the authority to imprison or fine
any individual;
(7) require any Government office to account in writing for
the destruction of any records relating to the loss, fate, or
status of Missing Armed Forces Personnel;
(8) receive information from the public regarding the
identification and public disclosure of Missing Armed Forces
Personnel records; and
(9) make a final determination regarding whether a Missing
Armed Forces Personnel record will be disclosed to the public
or disclosure of the Missing Armed Forces Personnel record to
the public will be postponed, notwithstanding the determination
of an Executive agency.
(k) Witness Immunity.--The Review Board shall be considered to be
an agency of the United States for purposes of section 6001 of title
18, United States Code.
(l) Oversight.--
(1) In general.--The Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on
Oversight and Reform of the House of Representatives shall
have--
(A) continuing oversight jurisdiction with respect
to the official conduct of the Review Board and the
disposition of postponed records after termination of
the Review Board; and
(B) upon request, access to any records held or
created by the Review Board.
(2) Duty of review board.--The Review Board shall have the
duty to cooperate with the exercise of oversight jurisdiction
under paragraph (1).
(m) Support Services.--The Administrator of the General Services
Administration shall provide administrative services for the Review
Board on a reimbursable basis.
(n) Interpretive Regulations.--The Review Board may issue
interpretive regulations.
(o) Termination and Winding Up.--
(1) In general.--Two years after the date of enactment of
this Act, the Review Board shall, by majority vote, determine
whether all Government offices have complied with the
obligations, mandates, and directives under this Act.
(2) Termination date.--The Review Board shall terminate on
the date that is 4 years after the date of enactment of this
Act.
(3) Report.--Before the termination of the Review Board
under paragraph (2), the Review Board shall submit to Congress
reports, including a complete and accurate accounting of
expenditures during its existence, and shall complete all other
reporting requirements under this Act.
(4) Records.--Upon termination of the Review Board, the
Review Board shall transfer all records of the Review Board to
the Archivist for inclusion in the Collection, and no record of
the Review Board shall be destroyed.
SEC. 8. MISSING ARMED FORCES PERSONNEL RECORDS REVIEW BOARD PERSONNEL.
(a) Executive Director.--
(1) In general.--Not later than 45 days after the initial
meeting of the Review Board, the Review Board shall appoint an
individual to the position of Executive Director.
(2) Qualifications.--The individual appointed as Executive
Director of the Review Board--
(A) shall be a citizen of the United States of
integrity and impartiality;
(B) shall be appointed without regard to political
affiliation; and
(C) shall not have any conflict of interest with
the mission of the Review Board.
(3) Security clearance.--
(A) Limit on appointment.--The Review Board shall
not appoint an individual as Executive Director until
after the date on which the individual qualifies for
the necessary security clearance.
(B) Expedited provision.--The appropriate
departments, agencies, and elements of the executive
branch of the Federal Government shall cooperate to
ensure that an application by an individual nominated
to be Executive Director, seeking security clearances
necessary to carry out the duties of the Executive
Director, is expeditiously reviewed and granted or
denied.
(4) Duties.--The Executive Director shall--
(A) serve as principal liaison to Government
offices;
(B) be responsible for the administration and
coordination of the review of records by the Review
Board;
(C) be responsible for the administration of all
official activities conducted by the Review Board; and
(D) not have the authority to decide or determine
whether any record should be disclosed to the public or
postponed for disclosure.
(5) Removal.--The Executive Director may be removed by a
majority vote of the Review Board.
(b) Staff.--
(1) In general.--The Review Board may, in accordance with
the civil service laws, but without regard to civil service law
and regulation for competitive service as defined in subchapter
I of chapter 33 of title 5, United States Code, appoint and
terminate additional employees as are necessary to enable the
Review Board and the Executive Director to perform their duties
under this Act.
(2) Qualifications.--An individual appointed to a position
as an employee of the Review Board--
(A) shall be a citizen of the United States of
integrity and impartiality; and
(B) shall not have had any previous involvement
with any official investigation or inquiry relating to
the loss, fate, or status of Missing Armed Forces
Personnel.
(3) Security clearance.--
(A) Limit on appointment.--The Review Board shall
not appoint an individual as an employee of the Review
Board until after the date on which the individual
qualifies for the necessary security clearance.
(B) Expedited provision.--The appropriate
departments, agencies, and elements of the executive
branch of the Federal Government shall cooperate to
ensure that an application by an individual who is a
candidate for a position with the Review Board, seeking
security clearances necessary to carry out the duties
of the position, is expeditiously reviewed and granted
or denied.
(c) Compensation.--The Review Board shall fix the compensation of
the Executive Director and other employees of the Review Board without
regard to chapter 51 and subchapter III of chapter 53 of title 5,
United States Code, relating to classification of positions and General
Schedule pay rates, except that the rate of pay for the Executive
Director and other employees may not exceed the rate payable for level
V of the Executive Schedule under section 5316 of title 5, United
States Code.
(d) Advisory Committees.--
(1) In general.--The Review Board may create 1 or more
advisory committees to assist in fulfilling the
responsibilities of the Review Board under this Act.
(2) Applicability of faca.--Any advisory committee created
by the Review Board shall be subject to the Federal Advisory
Committee Act (5 U.S.C. App.).
SEC. 9. REVIEW OF RECORDS BY THE MISSING ARMED FORCES PERSONNEL RECORDS
REVIEW BOARD.
(a) Startup Requirements.--The Review Board shall--
(1) not later than 90 days after the date on which all
members are appointed, publish an initial schedule for review
of all Missing Armed Forces Personnel records, which the
Archivist shall highlight and make available on a publicly
accessible website administered by the National Archives; and
(2) not later than 180 days after the date of enactment of
this Act, begin reviewing of Missing Armed Forces Personnel
records under this Act.
(b) Determination of the Review Board.--
(1) In general.--The Review Board shall direct that all
records that relate, directly or indirectly, to the loss, fate,
or status of Missing Armed Forces Personnel be transmitted to
the Archivist and disclosed to the public in the Collection in
the absence of clear and convincing evidence that--
(A) the record is not a Missing Armed Forces
Personnel record; or
(B) the Missing Armed Forces Personnel record, or
particular information within the Missing Armed Forces
Personnel record, qualifies for postponement of public
disclosure under this Act.
(2) Postponement.--In approving postponement of public
disclosure of a Missing Armed Forces Personnel record, or
information within a Missing Armed Forces Personnel record, the
Review Board shall seek to--
(A) provide for the disclosure of segregable parts,
substitutes, or summaries of the Missing Armed Forces
Personnel record; and
(B) determine, in consultation with the originating
body and consistent with the standards for postponement
under this Act, which of the following alternative
forms of disclosure shall be made by the originating
body:
(i) Any reasonably segregable particular
information in a Missing Armed Forces Personnel
record.
(ii) A substitute record for that
information which is postponed.
(iii) A summary of a Missing Armed Forces
Personnel record.
(3) Reporting.--With respect to a Missing Armed Forces
Personnel record, or information within a Missing Armed Forces
Personnel record, the public disclosure of which is postponed
under this Act, or for which only substitutions or summaries
have been disclosed to the public, the Review Board shall
create and transmit to the Archivist an unclassified and
publicly releasable report containing--
(A) a description of actions by the Review Board,
the originating body, or any Government office
(including a justification of any such action to
postpone disclosure of any record or part of any
record) and of any official proceedings conducted by
the Review Board; and
(B) a statement, based on a review of the
proceedings and in conformity with the decisions
reflected therein, designating a recommended specified
time at which, or a specified occurrence following
which, the material may be appropriately disclosed to
the public under this Act, which the Review Board shall
disclose to the public with notice thereof, reasonably
calculated to make interested members of the public
aware of the existence of the statement.
(4) Actions after determination.--
(A) In general.--Not later than 14 days after the
date of a determination by the Review Board that a
Missing Armed Forces Personnel record shall be publicly
disclosed in the Collection or postponed for disclosure
and held in the protected Collection, the Review Board
shall notify the head of the originating body of the
determination and highlight and make available the
determination on a publicly accessible website
reasonably calculated to make interested members of the
public aware of the existence of the determination.
(B) Oversight notice.--Simultaneous with notice
under subparagraph (A), the Review Board shall provide
notice of a determination concerning the public
disclosure or postponement of disclosure of a Missing
Armed Forces Personnel record, or information contained
within a Missing Armed Forces Personnel record, which
shall include a written unclassified justification for
public disclosure or postponement of disclosure,
including an explanation of the application of any
standards in section 6 to the President, to the
Committee on Homeland Security and Governmental Affairs
of the Senate, and the Committee on Oversight and
Reform of the House of Representatives.
(5) Referral after termination.--A Missing Armed Forces
Personnel record that is identified, located, or otherwise
discovered after the date on which the Review Board terminates
shall be transmitted to the Archivist for the Collection and
referred to the Committee on Armed Services of the Senate and
the Committee on Armed Services of the House of Representatives
for review, ongoing oversight and, as warranted, referral for
possible enforcement action relating to a violation of this Act
and determination as to whether declassification of the Missing
Armed Forces Personnel is warranted under this Act.
(c) Notice to Public.--Every 30 days, beginning on the date that is
60 days after the date on which the Review Board first approves the
postponement of disclosure of a Missing Armed Forces Personnel record,
the Review Board shall highlight and make accessible on a publicly
available website reasonably calculated to make interested members of
the public aware of the existence of the postponement a notice that
summarizes the postponements approved by the Review Board, including a
description of the subject, originating body, length or other physical
description, and each ground for postponement that is relied upon.
(d) Reports by the Review Board.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, and every year thereafter until the
Review Board terminates, the Review Board shall submit a report
regarding the activities of the Review Board to--
(A) the Committee on Oversight and Reform of the
House of Representatives;
(B) the Committee on Homeland Security and
Governmental Affairs of the Senate;
(C) the President;
(D) the Archivist; and
(E) the head of any Government office the records
of which have been the subject of Review Board
activity.
(2) Contents.--Each report under paragraph (1) shall
include the following information:
(A) A financial report of the expenses for all
official activities and requirements of the Review
Board and its employees.
(B) The progress made on review, transmission to
the Archivist, and public disclosure of Missing Armed
Forces Personnel records.
(C) The estimated time and volume of Missing Armed
Forces Personnel records involved in the completion of
the duties of the Review Board under this Act.
(D) Any special problems, including requests and
the level of cooperation of Government offices, with
regard to the ability of the Review Board to carry out
its duties under this Act.
(E) A record of review activities, including a
record of postponement decisions by the Review Board or
other related actions authorized under this Act, and a
record of the volume of records reviewed and postponed.
(F) Suggestions and requests to Congress for
additional legislative authority needs.
(G) An appendix containing copies of reports
relating to postponed records submitted to the
Archivist under subsection (b)(3) since the end of the
period covered by the most recent report under
paragraph (1).
(3) Termination notice.--Not later than 90 days before the
Review Board expects to complete the work of the Review Board
under this Act, the Review Board shall provide written notice
to Congress of the intent of the Review Board to terminate
operations at a specified date.
SEC. 10. DISCLOSURE OF OTHER MATERIALS AND ADDITIONAL STUDY.
(a) Materials Under Seal of Court.--
(1) In general.--The Review Board may request the Attorney
General to petition any court of the United States or of a
foreign country to release any information relevant to the
loss, fate, or status of Missing Armed Forces Personnel that is
held under seal of the court.
(2) Grand jury information.--
(A) In general.--The Review Board may request the
Attorney General to petition any court of the United
States to release any information relevant to loss,
fate, or status of Missing Armed Forces Personnel that
is held under the injunction of secrecy of a grand
jury.
(B) Treatment.--A request for disclosure of Missing
Armed Forces Personnel materials under this Act shall
be deemed to constitute a showing of particularized
need under rule 6 of the Federal Rules of Criminal
Procedure.
(b) Sense of Congress.--It is the sense of Congress that--
(1) the Attorney General should assist the Review Board in
good faith to unseal any records that the Review Board
determines to be relevant and held under seal by a court or
under the injunction of secrecy of a grand jury;
(2) the Secretary of State should--
(A) contact the Governments of the Russian
Federation, the People's Republic of China, and the
Democratic People's Republic of Korea to seek the
disclosure of all records in their respective custody,
possession, or control relevant to the loss, fate, or
status of Missing Armed Forces Personnel; and
(B) contact any other foreign government that may
hold information relevant to the loss, fate, or status
of Missing Armed Forces Personnel, and seek disclosure
of such information; and
(3) all agencies should cooperate in full with the Review
Board to seek the disclosure of all information relevant to the
loss, fate, or status of Missing Armed Forces Personnel
consistent with the public interest.
SEC. 11. RULES OF CONSTRUCTION.
(a) Precedence Over Other Law.--When this Act requires transmission
of a record to the Archivist or public disclosure, it shall take
precedence over any other law (except section 6103 of the Internal
Revenue Code of 1986), judicial decision construing such law, or common
law doctrine that would otherwise prohibit such transmission or
disclosure, with the exception of deeds governing access to or transfer
or release of gifts and donations of records to the United States
Government.
(b) Freedom of Information Act.--Nothing in this Act shall be
construed to eliminate or limit any right to file requests with any
Executive agency or seek judicial review of the decisions under section
552 of title 5, United States Code.
(c) Judicial Review.--Nothing in this Act shall be construed to
preclude judicial review under chapter 7 of title 5, United States
Code, of final actions taken or required to be taken under this Act.
(d) Existing Authority.--Nothing in this Act revokes or limits the
existing authority of the President, any Executive agency, the Senate,
or the House of Representatives, or any other entity of the Government
to publicly disclose records in its custody, possession, or control.
(e) Rules of the Senate and House of Representatives.--To the
extent that any provision of this Act establishes a procedure to be
followed in the Senate or the House of Representatives, such provision
is adopted--
(1) as an exercise of the rulemaking power of the Senate
and House of Representatives, respectively, and is deemed to be
part of the rules of each House, respectively, but applicable
only with respect to the procedure to be followed in that
House, and it supersedes other rules only to the extent that it
is inconsistent with such rules; and
(2) with full recognition of the constitutional right of
either House to change the rules (so far as they relate to the
procedure of that House) at any time, in the same manner, and
to the same extent as in the case of any other rule of that
House.
SEC. 12. TERMINATION OF EFFECT OF ACT.
(a) Provisions Pertaining to the Review Board.--The provisions of
this Act that pertain to the appointment and operation of the Review
Board shall cease to be effective when the Review Board and the terms
of its members have terminated under section 7(o).
(b) Other Provisions.--The remaining provisions of this Act shall
continue in effect until such time as the Archivist certifies to the
President and Congress that all Missing Armed Forces Personnel records
have been made available to the public in accordance with this Act.
SEC. 13. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated such sums
as are necessary to carry out this Act, to remain available until
expended.
(b) Interim Funding.--Until such time as funds are appropriated
pursuant to subsection (a), the President may use such sums as are
available for discretionary use to carry out this Act.
SEC. 14. SEVERABILITY.
If any provision of this Act, or the application thereof to any
person or circumstance, is held invalid, the remainder of this Act and
the application of that provision to other persons not similarly
situated or to other circumstances shall not be affected by the
invalidation.
<all>
Bring Our Heroes Home Act
#2794 | S Congress #116
Policy Area: Armed Forces and National Security
Subjects: Advisory bodiesAsiaChinaDiplomacy, foreign officials, Americans abroadExecutive agency funding and structureGovernment information and archivesGovernment studies and investigationsLibraries and archivesMilitary personnel and dependentsMissing personsNational Archives and Records AdministrationNorth KoreaPersonnel recordsPresidents and presidential powers, Vice PresidentsRussia
Last Action: Read twice and referred to the Committee on Homeland Security and Governmental Affairs. (11/6/2019)
Bill Text Source: Congress.gov
Summary and Impacts
Original Text