Bring Our Heroes Home Act
This bill: (1) requires the National Archives and Records Administration (NARA) to establish the Missing Armed Forces Personnel Records Collection; and (2) establishes the Missing Armed Forces Personnel Records Review Board, which shall require all missing Armed Forces personnel records to be transmitted to NARA and disclosed to the public in the collection.
Each government office shall: (1) identify, review, and organize each such record in its possession for transmission to NARA; and (2) identify and review for public disclosure each such record previously transferred to NARA that remains classified.
Each presidential archival depository shall: (1) have as a priority the expedited review for public disclosure of such records in its possession, and (2) make such records available to the board.
NARA shall: (1) make each such record identified as classified available for review by the originating body, and (2) prepare and make available to all government offices a standard form for collecting information relating to such records.
All such records shall be publicly disclosed in full and made available in the collection within five years after enactment of this bill unless the President certifies that: (1) postponement is necessary because of an identifiable harm to the military defense, intelligence operations, or conduct of foreign relations; and (2) the harm is of such gravity that it outweighs the public interest in disclosure.
The Board shall: (1) render a decision on a determination of a government office to postpone the disclosure of any such record; (2) determine, within two years after enactment of this bill, whether all government offices have complied with it; (3) terminate after four years; and (4) transfer all of its records to NARA for inclusion in the collection.
The Board may request the Attorney General to petition any U.S. or foreign court to release information relevant to the loss, fate, or status of missing Armed Forces personnel that is held under seal of such court.
[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 120 Introduced in Senate (IS)]
<DOC>
115th CONGRESS
1st Session
S. 120
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
January 12, 2017
Mr. Heller 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 for 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, transferring, reviewing, or
declassifying records relating to Missing Armed Forces
Personnel.
(3) Mandates for declassification set forth in multiple
Executive orders have been broadly written, loosely
interpreted, and often ignored by Federal Government officials
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.
(7) All records of the Federal Government relating Missing
Armed Forces Personnel should carry a presumption of immediate
disclosure, 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 the executive branch of the
Federal Government, 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.
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 or developed
solely within the executive branch of the Federal Government.
(5) Government office.--The term ``Government office''
means a department or agency within the executive branch of the
Federal Government, the Library of Congress, and the National
Archives.
(6) Identification aid.--The term ``identification aid''
means the standard form prepared under section 5(d)(1)(A).
(7) Missing armed forces personnel.--The term ``Missing
Armed Forces Personnel'' means one or more ``missing persons''
as defined in section 1513 of title 10, United States Code.
(8) 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 was created or made
available for use by, obtained by, or otherwise came into the
custody, possession, or control of--
(A) any Government office;
(B) any Presidential library; or
(C) any of the Armed Forces.
(9) National archives.--The term ``National Archives''--
(A) means the National Archives and Records
Administration; and
(B) includes--
(i) any component of the National Archives
and Records Administration; and
(ii) a Presidential archival depository
established under section 2112 of title 44,
United States Code.
(10) Official investigation.--The term ``official
investigation'' means a review, briefing, 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 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 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'' includes a book, paper,
map, photograph, sound or video recording, machine readable
material, computerized, digitized, or electronic information,
regardless of the medium on which it is stored, and other
documentary material, regardless of its physical form or
characteristics.
(14) Review board.--The term ``Review Board'' means the
Missing Armed Forces Personnel Records Review Board established
under section 7.
(15) Third agency.--The term ``third agency'' means a
Government office that originated a Missing Armed Forces
Personnel record that is in the custody, possession, or control
of another Government office whose review and authorization is
required before a record can be designated for disclosure.
SEC. 4. MISSING ARMED FORCES PERSONNEL RECORDS COLLECTION AT THE
NATIONAL ARCHIVES.
(a) Establishment of Collection.--Not later than 60 days after the
date of enactment of this Act, the National Archives shall commence
establishment of a collection of records to be known as the Missing
Armed Forces Personnel Records Collection.
(b) Regulations.--
(1) In general.--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 maintenance of
the Collection.
(2) Requirements.--The rules required to be promulgated
under paragraph (1) shall include guidelines and processes
for--
(A) transmission of records for inclusion in the
Collection;
(B) disclosure of records contained in the
Collection;
(C) fees for copying of records contained in the
Collection; and
(D) availability and security 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, locate, and organize any Missing
Armed Forces Personnel records in the custody,
possession, or control of the Government office; and
(B) prepare for transmission to the Archivist 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 any Missing Armed Forces Personnel
record has been withheld by the office, other than in
accordance with this Act.
(3) Preservation.--No Missing Armed Forces Personnel record
shall be destroyed, altered, or mutilated in any way.
(4) Effect of previous disclosure.--A Missing Armed Forces
Personnel record made available or disclosed to the public
before the date of enactment of this Act may not be withheld,
redacted, postponed for public disclosure, or reclassified.
(5) Non-federal records.--Except for the exclusion of names
or identities in accordance with section 6, a Missing Armed
Forces Personnel record created by an individual or entity that
is not part of the Federal Government may not be withheld,
redacted, postponed for public disclosure, or reclassified.
(6) Withheld records.--For any Missing Armed Forces
Personnel record that is withheld by a Government office from
the Archivist or the Review Board, the head of the Government
office shall submit an unclassified report to the Review Board
and each appropriate committee of the Senate and the House of
Representatives explaining the decision to withhold the record.
(b) Custody of Missing Armed Forces Personnel Records Pending
Review.--During the period during which a Missing Armed Forces
Personnel record is being reviewed by a Government office and any
review activity by the Review Board relating to the Missing Armed
Forces Personnel record is pending, the Government office shall retain
custody of the Missing Armed Forces Personnel record for purposes of
preservation, security, and efficiency, unless--
(1) the Review Board requires the physical transfer of the
Missing Armed Forces Personnel record for purposes of
conducting an independent and impartial review; or
(2) transfer is necessary for an administrative hearing or
other Review Board function.
(c) 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 rules promulgated under paragraph (2)--
(A) identify, locate, review, and organize 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) identify and review for public disclosure each
Missing Armed Services Personnel record previously
transferred to the National Archives that remains
classified in whole or in part.
(2) Requirement.--The Review Board shall promulgate rules
for the disclosure of relevant records by Government offices
under paragraph (1).
(3) Presidential archival depositories.--The Director of
each Presidential archival depository established under section
2112 of title 44, United States Code, shall--
(A) have as a priority the expedited review for
public disclosure of Missing Armed Forces Personnel
records in the custody, possession, or control of the
depository; and
(B) make Missing Armed Forces Personnel records
available to the Review Board as required under this
Act.
(4) National archives records.--Not later than 60 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, possession, or
control of the National Archives 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 Missing Armed Forces Personnel record
located and identified under subparagraph (A) available
for review by the originating body.
(d) Identification Aids.--
(1) Preparation.--
(A) In general.--Not later than 45 days after the
date of enactment of this Act, the Archivist, in
consultation with the appropriate Government offices,
shall prepare and make available to all Government
offices a standard form for collecting information
relating to each Missing Armed Forces Personnel record
subject to review under this Act.
(B) Compatibility.--The Archivist shall prepare and
make available identification aids in a manner that
results in a uniform and compatible system of
electronic records for use by Government offices.
(2) Use.--Upon completion of an identification aid, a
Government office shall--
(A) attach a printed copy to the record to which
the identification aid relates;
(B) transmit to the Review Board a printed copy of
the identification aid; and
(C) attach a printed copy to each Missing Armed
Forces Personnel record described in the identification
aid when the Missing Armed Forces Personnel record is
transmitted to the Archivist.
(3) Records already public.--A Missing Armed Forces
Personnel record that is in the custody, possession, or control
of the National Archives on the date of enactment of this Act,
and that has been publicly available in its entirety without
redaction--
(A) shall be made available in the Collection
without any additional review by the Review Board or
another Government office under this Act; and
(B) shall not be required to have an identification
aid, unless required by the Archivist.
(e) Transmission to the National Archives.--Each Government office
shall--
(1) not later than 180 days after the date of enactment of
this Act, transmit to the Archivist, and make available to the
public, all Missing Armed Forces Personnel records in the
custody, possession or control of the Government office that
may be publicly disclosed under the standards under this Act,
including those that are publicly available on the date of
enactment of this Act, without any redaction, adjustment, or
withholding; and
(2) transmit to the Archivist upon approval for
postponement by the Review Board or upon completion of other
action authorized by this Act, all Missing Armed Forces
Personnel records the public disclosure of which has been
postponed, in whole or in part, under the standards under this
Act, to become part of the protected Collection.
(f) Custody of Postponed Missing Armed Services Personnel
Records.--A Missing Armed Forces Personnel record the public disclosure
of which has been postponed under the standards under this Act shall,
pending transmission to the Archivist, be held for reasons of security
and preservation by the originating body until such time as an
information security program has been established at the National
Archives.
(g) 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 periodically by
the originating body and by the Archivist consistent with the
recommendations of the Review Board under section 9(c)(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 and
publish in the Federal Register an unclassified written
description of the reason for the continued
postponement.
(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 5 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 the President
submits to the Archivist a certification that--
(i) continued postponement is necessary
because of an identifiable harm to the military
defense, intelligence operations, or conduct of
foreign relations; and
(ii) the identifiable harm is of such
gravity that it outweighs the public interest
in disclosure.
(h) Fees for Copying.--An Executive agency--
(1) shall charge a fee for copying Missing Armed Forces
Personnel records; and
(2) may grant a waiver of such a fee in a manner in
accordance with the standards established by the head of the
Executive agency for purposes of section 552(a)(4) of title 5,
United States Code.
SEC. 6. GROUNDS FOR POSTPONEMENT OF PUBLIC DISCLOSURE OF RECORDS.
Disclosure to the public of a Missing Armed Forces Personnel record
or particular information in a Missing Armed Forces Personnel record
may be postponed subject to the limitations under this Act if there is
clear and convincing evidence that--
(1) the threat to the military defense, intelligence
operations, or conduct of foreign relations of the United
States posed by the public disclosure of the Missing Armed
Forces Personnel record or information is of such gravity that
it outweighs the public interest, and such public disclosure
would reveal--
(A) an intelligence agent whose identity requires
continued protection;
(B) an intelligence source or method--
(i) which is in use, or reasonably expected
to be used, by the Federal Government;
(ii) which has not been officially
disclosed; and
(iii) the disclosure of which would
interfere with the conduct of intelligence
activities; or
(C) any other matter relating to the current
military defense, intelligence operations, or conduct
of foreign relations of the United States, the
disclosure of which would demonstrably impair the
national security of the United States;
(2) the public disclosure of the Missing Armed Forces
Personnel record 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; or
(3) the public disclosure of the Missing Armed Forces
Personnel record 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.
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 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;
(D) 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;
(E) not less than one professional historian; and
(F) not less than one attorney.
(3) Deadlines.--
(A) In general.--Not later than 30 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 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 create identification aids
and organize Missing Armed Forces Personnel records;
(2) direct Government offices to transmit to the Archivist
Missing Armed Forces Personnel records as required under this
Act, including segregable portions of Missing Armed Forces
Personnel records and substitutes and summaries of Missing
Armed Forces Personnel records that can be publicly disclosed
to the fullest extent;
(3) obtain access to Missing Armed Forces Personnel records
that have been identified and organized 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; and
(8) receive information from the public regarding the
identification and public disclosure of Missing Armed Forces
Personnel records.
(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 Government 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
1, 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 one 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) Custody of Records Reviewed by Review Board.--Pending the
outcome of the review activity of the Review Board, a Government office
shall retain a Missing Armed Forces Personnel record in the custody,
possession or control of the Government office for purposes of
preservation, security, and efficiency, unless--
(1) the Review Board requires the physical transfer of
records for reasons of conducting an independent and impartial
review; or
(2) such transfer is necessary for an administrative
hearing or other official function of the Review Board.
(b) Startup Requirements.--The Review Board shall--
(1) not later than 90 days after the date on which all
members are appointed, publish a schedule for review of all
Missing Armed Forces Personnel records in the Federal Register;
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.
(c) 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 a 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 publish a copy of the determination
in the Federal Register.
(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
Government 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 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.
(d) 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 publish in the Federal Register 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.
(e) 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 Government
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 (c)(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>
Introduced in Senate
Read twice and referred to the Committee on Homeland Security and Governmental Affairs.
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