No official summary available for this bill.
[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 3226 Introduced in Senate (IS)]
<DOC>
119th CONGRESS
1st Session
S. 3226
To provide for the creation of the missing Armed Forces and civilian
personnel Records Collection at the National Archives, to require the
expeditious public transmission to the Archivist and public disclosure
of missing Armed Forces and civilian personnel records, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 19, 2025
Mr. Crapo (for himself, Mrs. Shaheen, Mr. Risch, Mr. Padilla, Ms.
Klobuchar, Ms. Duckworth, Ms. Rosen, Ms. Hassan, and Ms. Hirono)
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 and civilian
personnel Records Collection at the National Archives, to require the
expeditious public transmission to the Archivist and public disclosure
of missing Armed Forces and civilian 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; PURPOSES.
(a) Findings.--Congress finds that all records of the Federal
Government relating to missing Armed Forces and civilian personnel
should--
(1) be preserved for historical and governmental purposes
and for public research, including for families seeking to
learn the ultimate fate of their loved ones;
(2) carry a presumption of declassification; and
(3) be disclosed under this Act to enable the fullest
possible accounting for missing Armed Forces and civilian
personnel.
(b) Purposes.--The purposes of this Act are--
(1) to provide for the creation of the Missing Armed Forces
and Civilian 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 and
civilian personnel records, subject to narrow exceptions, as
set forth in this Act.
SEC. 3. DEFINITIONS.
In this Act:
(1) Archivist.--The term ``Archivist'' means the Archivist
of the United States.
(2) Collection.--The term ``Collection'' means the Missing
Armed Forces and Civilian 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;
(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; and
(C) does not include any non-appropriated agency,
department, corporation, or establishment.
(4) Executive director.--The term ``Executive Director''
means the Executive Director of the Review Board.
(5) Government office.--The term ``Government office''
means an Executive agency, the Library of Congress, or the
National Archives.
(6) Missing armed forces and civilian personnel.--The term
``missing Armed Forces and civilian personnel''--
(A) means 1 or more missing persons; and
(B) includes an individual who was a missing person
and whose status was later changed to ``missing and
presumed dead''.
(7) Missing armed forces and civilian personnel record.--
The term ``missing Armed Forces and civilian personnel record''
means a record that relates, directly or indirectly, to the
loss, fate, or status of missing Armed Forces and civilian
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 and
civilian 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'' means--
(A) a person described in paragraph (1) of section
1513 of title 10, United States Code; and
(B) any other civilian employee of the Federal
Government or an employee of a contractor of the
Federal Government who serves in direct support of, or
accompanies, the Armed Forces in the field under orders
and who is in a missing status (as that term is defined
in paragraph (2) of such section 1513).
(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 and civilian 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 and civilian 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 and
civilian personnel, about the fate of the missing Armed Forces
and civilian 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 and Civilian Personnel Records Review
Board established under section 5.
SEC. 4. MISSING ARMED FORCES AND CIVILIAN PERSONNEL RECORDS COLLECTION
AT THE NATIONAL ARCHIVES.
(a) Establishment of Collection.--Not later than 90 days after a
quorum of the Missing Armed Forces and Civilian Personnel Records
Review Board has been established under section 7, the Archivist
shall--
(1) commence establishment of a collection of records to be
known as the ``Missing Armed Forces and Civilian Personnel
Records Collection'';
(2) commence preparing the subject guidebook and index to
the Collection; and
(3) establish criteria and acceptable formats for Executive
agencies to follow when transmitting copies of missing Armed
Forces and civilian personnel records to the Archivist, to
include required metadata, including applicable information
privacy safeguards.
(b) Regulations.--Not later than 90 days after the date of the
swearing in of the Review Board members, the Review Board shall
promulgate rules to establish guidelines and processes for the
disclosure of records contained in the Collection, including applicable
information privacy safeguards.
(c) Oversight.--
(1) Senate.--The Committee on Homeland Security and
Governmental Affairs of the Senate shall have continuing
jurisdiction, including legislative oversight jurisdiction, in
the Senate with respect to the Collection.
(2) House of representatives.--The Committee on Oversight
and Government Reform of the House of Representatives shall
have continuing jurisdiction, including legislative oversight
jurisdiction, in the House of Representatives with respect to
the Collection.
SEC. 5. REVIEW, IDENTIFICATION, TRANSMISSION TO THE NATIONAL ARCHIVES,
AND PUBLIC DISCLOSURE OF MISSING ARMED FORCES AND
CIVILIAN 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
and civilian personnel records in the custody,
possession, or control of the Government office,
including intelligence reports, congressional
inquiries, memoranda to or from the White House and
other Federal departments and agencies, Prisoner of War
(POW) debriefings, live sighting reports, documents
relating to POW camps, movement of POWs, exploitation
of POWs, experimentation on POWs, or status changes
from Missing in Action (MIA) to Killed in Action (KIA);
and
(B) prepare for transmission to the Archivist in
accordance with the criteria and acceptable formats
established by the Archivist a copy of any missing
Armed Forces and civilian 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 and
civilian personnel records in the custody, possession,
or control of the Government office; and
(B) whether a copy of any missing Armed Forces and
civilian personnel record has not been transmitted to
the Archivist.
(3) Preservation.--No missing Armed Forces and civilian
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 and civilian
personnel record may not be withheld, redacted, postponed for
public disclosure, or reclassified.
(5) Withheld and substantially redacted records.--
(A) In general.--For any missing Armed Forces and
civilian 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) Rulemaking.--The Archivist shall promulgate
regulations to define the term ``substantially redacted
record'' for purposes of subparagraph (A).
(b) Review.--
(1) In general.--Except as provided under paragraph (5),
not later than 270 days after a quorum of the Review Board has
been established under section 7, each Government office shall,
in accordance with the criteria and acceptable formats
established by the Archivist--
(A) identify, locate, copy, and review each missing
Armed Forces and civilian 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 270 days
after a quorum of the Review Board has been established under
section 7, the Archivist shall--
(A) locate and identify all missing Armed Forces
and civilian 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 and
civilian personnel record located and identified under
subparagraph (A) available for review by Executive
agencies through the National Declassification Center
established under Executive Order 13526 (50 U.S.C. 3161
note; relating to classified national security
information), or any successor order.
(4) Records already public.--A missing Armed Forces and
civilian 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.
(5) Exemptions.--
(A) Department of defense pow/mia accounting
agency.--The Defense POW/MIA Accounting Agency is
exempt from the requirement under this subsection to
declassify and transmit to the Archivist documents in
its custody or control that pertain to a specific case
or cases that the Defense POW/MIA Accounting Agency is
actively investigating or developing for the purpose of
locating, disinterring, or identifying a missing member
of the Armed Forces.
(B) Department of defense military service casualty
offices and department of state service casualty
offices.--The Department of Defense Military Service
Casualty Offices and the Department of State Service
Casualty Offices are exempt from the requirement to
declassify and transmit to the Archivist documents in
their custody or control that pertain to individual
cases with respect to which the office is lending
support and assistance to the families of missing
individuals.
(c) Transmission to the National Archives.--Each Government office
shall--
(1) not later than 270 days after a quorum of the Review
Board has been established under section 7, commence
transmission to the Archivist of copies of the missing Armed
Forces and civilian personnel records in the custody,
possession, or control of the Government office, except for
records described in subsection (a)(5); and
(2) not later than 1 year after a quorum of the Review
Board has been established under section 7, complete
transmission to the Archivist of copies of all missing Armed
Forces and civilian personnel records in the possession or
control of the Government office.
(d) Periodic Review of Postponed Missing Armed Forces and Civilian
Personnel Records.--
(1) In general.--All missing Armed Forces and civilian
personnel records, or information within a missing Armed Forces
and civilian 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(p); 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 and civilian personnel record, or
information within a missing Armed Forces and civilian
personnel record, by the originating body shall address
the public disclosure of the missing Armed Forces and
civilian personnel record under the standards under
this Act.
(B) Continued postponement.--If an originating body
conducting a periodic review of a missing Armed Forces
and civilian personnel record, or information within a
missing Armed Forces and civilian 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 and civilian personnel records, or
information within a missing Armed Forces and civilian
personnel record, shall serve the purpose stated in
section 2(b)(2), to provide expeditious public
disclosure of missing Armed Forces and civilian
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 on which a
quorum of the Review Board has been established under
section 7, all missing Armed Forces and civilian
personnel records, and information within a missing
Armed Forces and civilian 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 the date on which
a quorum of the Review Board has been
established under section 7; 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 on which a
quorum of the Review Board has been established
under section 7; 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 on which a quorum of the Review Board has
been established under section 7.
(e) Records Management.--In carrying out this section, the
Archivist shall comply with any applicable statutory or regulatory
requirement related to records management.
SEC. 6. GROUNDS FOR POSTPONEMENT OF PUBLIC DISCLOSURE OF RECORDS.
(a) In General.--Disclosure to the public of a missing Armed Forces
and civilian personnel record or particular information in a missing
Armed Forces and civilian personnel record created after the date that
is 25 years before the date of the review of the missing Armed Forces
and civilian personnel record by the Archivist may be postponed subject
to the limitations under this Act only--
(1) if--
(A) it pertains to--
(i) military plans, weapons systems, or
operations;
(ii) foreign government information;
(iii) intelligence activities (including
covert action), intelligence sources or
methods, or cryptology;
(iv) foreign relations or foreign
activities of the United States, including
confidential sources;
(v) scientific, technological, or economic
matters relating to the national security;
(vi) United States Government programs for
safeguarding nuclear materials or facilities;
(vii) vulnerabilities or capabilities of
systems, installations, infrastructures,
projects, plans, or protection services
relating to the national security; or
(viii) the development, production, or use
of weapons of mass destruction; and
(B) the threat posed by the public disclosure of
the missing Armed Forces and civilian personnel record
or information is of such gravity that it outweighs the
public interest in disclosure;
(2) if the information is protected from disclosure under
section 552(b) of title 5, United States Code (commonly known
as the ``Freedom of Information Act''); or
(3) if it reveals information described in paragraphs (1)
through (9) of section 3.3(b) of Executive Order 13526 (50
U.S.C. 3161 note; relating to classified national security
information).
(b) Older Records.--Disclosure to the public of a missing Armed
Forces and civilian personnel record or particular information in a
missing Armed Forces and civilian personnel record created on or before
the date that is 25 years before the date of the review of the missing
Armed Forces and civilian 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 and civilian personnel record or
information is of such gravity that it outweighs the public
interest in disclosure.
(c) Exception.--Regardless of the date on which a missing Armed
Forces and civilian personnel record was created, disclosure to the
public of information in the missing Armed Forces and civilian
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, in accordance with
section 552(b)(7)(D) of title 5, United States Code;
(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;
(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; or
(4) the public disclosure of such information would
conflict with United States law, regulations, or executive
orders, including any law, regulation, or executive order
governing the disclosure of classified information.
SEC. 7. ESTABLISHMENT AND POWERS OF THE MISSING ARMED FORCES AND
CIVILIAN 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 and Civilian Personnel Records Review Board'' to
ensure and facilitate the review, transmission to the Archivist, and
public disclosure of missing Armed Forces and civilian personnel
records.
(b) Membership.--
(1) Appointments.--The Review Board shall be composed of 5
members appointed by the President, subject to the advice and
consent of the Senate, of whom--
(A) 1 shall be appointed in consultation with the
Archivist of the United States and shall serve as the
Chairperson of the Review Board;
(B) 1 shall be appointed in consultation with the
majority leader of the Senate;
(C) 1 shall be appointed in consultation with the
minority leader of the Senate;
(D) 1 shall be appointed in consultation with the
Speaker of the House of Representatives; and
(E) 1 shall be appointed in consultation with the
minority leader of the House of Representatives.
(2) Qualifications.--The members of the Review Board
shall--
(A) be appointed without regard to political
affiliation;
(B) be citizens of the United States of integrity
and impartiality;
(C) not be employees of an Executive agency on the
date of the appointment;
(D) have high national professional reputation in
their fields and be 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 and civilian personnel records;
(E) possess an appreciation of the value of missing
Armed Forces and civilian personnel records to
scholars, the Federal Government, and the public,
particularly families of missing Armed Forces and
civilian personnel;
(F) include at least 1 professional historian; and
(G) include at least 1 attorney.
(3) Consultation with the office of government ethics.--In
considering persons to be appointed to the Review Board, the
President shall consult with the Director of the Office of
Government Ethics to--
(A) determine criteria for possible conflicts of
interest of members of the Review Board, consistent
with ethics laws, statutes, and regulations for
executive branch employees; and
(B) ensure that no individual selected for such
position of member of the Review Board possesses a
conflict of interest as so determined.
(4) Consultation.--Appointments to the Review Board shall
be made 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 and civilian
personnel.
(c) Security Clearances.--
(1) In general.--Each member of the Review Board shall seek
appropriate security clearances necessary to carry out the
duties of the Review Board.
(2) Review.--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 a security
clearance under paragraph (1) is expeditiously reviewed and
granted or denied.
(d) Consideration by the Senate.--Nominations for appointment under
subsection (b)(1)(A) shall be referred to the Committee on Homeland
Security and Governmental Affairs of the Senate for consideration.
(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 Needed for Quorum.--A majority of the members of
the Review Board, including the Chairperson appointed and confirmed
pursuant to subsection (b)(1)(A), shall constitute a quorum.
(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.
(3) Notice of removal.--If a member of the Review Board is
removed from office, and that removal is by the President, not
later than 10 days after the removal, the President shall
submit to the leadership of Congress, the Committee on Homeland
Security and Governmental Affairs of the Senate and the
Committee on Oversight and Reform of the House of
Representatives a report specifying the facts found and the
grounds for the removal.
(h) Compensation of Members.--
(1) Basic pay.--A member of the Review Board shall be
treated as an employee of the executive branch and 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 and civilian
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 and civilian personnel record; and
(B) whether a missing Armed Forces and civilian
personnel record, or particular information in a
missing Armed Forces and civilian personnel record,
qualifies for postponement of disclosure under this
Act.
(j) Powers.--
(1) In general.--The Review Board shall have the authority
to act in a manner prescribed under this Act, including the
authority to--
(A) direct Government offices to transmit to the
Archivist missing Armed Forces and civilian personnel
records as required under this Act;
(B) direct Government offices to transmit to the
Archivist substitutes and summaries of missing Armed
Forces and civilian personnel records that can be
publicly disclosed to the fullest extent for any
missing Armed Forces and civilian personnel record that
is proposed for postponement in full or that is
substantially redacted;
(C) obtain access to missing Armed Forces and
civilian personnel records that have been identified by
a Government office;
(D) 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 the functions
and responsibilities of the Review Board under this
Act;
(E) hold such hearings, sit and act at such times
and places, take such testimony, receive such evidence,
administer such oaths, and subpoena documents as the
Review Board considers advisable to carry out the
responsibilities of the Review Board under this Act;
(F) subpoena private persons to compel the
production of documents and other records relevant to
the responsibilities of the Review Board under this
Act;
(G) 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 and
civilian personnel;
(H) receive information from the public regarding
the identification and public disclosure of missing
Armed Forces and civilian personnel records; and
(I) make a final determination regarding whether a
missing Armed Forces and civilian personnel record will
be disclosed to the public or disclosure of the missing
Armed Forces and civilian personnel record to the
public will be postponed, notwithstanding the
determination of an Executive agency.
(2) Enforcement of subpoenas.--Any subpoena issued under
the Review Board under this subsection may be enforced by any
appropriate Federal court acting pursuant to a lawful request
of the Review Board.
(k) Presidential Authority Over Review Board Determination.--
(1) Public disclosure or postponement of disclosure.--After
the Review Board has made a formal determination concerning the
public disclosure or postponement of disclosure of an missing
Armed Forces and civilian personnel record or information
contained in a missing Armed Forces and civilian personnel
record, obtained or developed solely within the executive
branch, the President--
(A) shall have the sole and nondelegable authority
to require the disclosure or postponement of such
record or information under the standards set forth in
sections 5 and 6; and
(B) shall provide the Review Board with an
unclassified written certification specifying the
President's decision within 30 days after the Review
Board's determination and notice to the executive
agency as required under this Act, stating the
justification for the President's decision, including
the applicable grounds for postponement under section
6.
(2) Periodic review.--Any missing Armed Forces and civilian
personnel record for which public disclosure is postponed by
the President shall be subject to the requirements of periodic
review and declassification of classified information and
public disclosure in the Collection set forth in section 5.
(3) Record of presidential postponement.--The Review Board
shall, upon its receipt, publish in the Federal Register a copy
of any unclassified written certification, statement, or other
materials transmitted by or on behalf of the President with
regard to postponement of the public disclosure of missing
Armed Forces and civilian personnel records under section 6.
(l) 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.
(m) 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--
(A) have continuing legislative 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) not later than 10 days after submitting a
request, be provided 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).
(3) Security clearances.--The Chair and Ranking Members of
the Committee on Homeland Security and Governmental Affairs of
the Senate and the Committee on Oversight and Government Reform
of the House of Representatives, and designated Committee
staff, shall be granted all security clearances and accesses
held by the Review Board, including to relevant Presidential
and department or agency special access and compartmented
access programs.
(n) Support Services.--The Administrator of General Services shall
provide administrative services for the Review Board on a reimbursable
basis.
(o) Interpretive Regulations.--The Review Board may issue
interpretive regulations if the Review Board finds such regulation to
be necessary and appropriate.
(p) Termination and Winding Up.--
(1) In general.--On the date that is 2 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 on which members of the
Review Board are sworn in to the Review Board.
(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 AND CIVILIAN 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--
(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) Consultation with the office of government ethics.--In
their consideration of the person to be appointed to the
position of Executive Director, the Review Board shall consult
with the Director of the Office of Government Ethics to--
(A) determine criteria for possible conflicts of
interest of the Executive Director, consistent with
ethics laws, statutes, and regulations for executive
branch employees; and
(B) ensure that no individual selected for such
position of Executive Director possesses a conflict of
interest as so determined.
(4) Security clearance.--
(A) In general.--The individual appointed as
Executive Director shall have the security clearance
necessary to carry out the duties of the position at
the time of appointment.
(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.
(5) 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.
(6) 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) Treatment as employees of executive branch.--The
Executive Director and other employees of the Review Board
shall be treated as employees of the executive branch.
(3) 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 and
civilian personnel.
(4) Consultation with the office of government ethics.--In
their consideration of persons to be appointed as staff of the
Review Board, the Review Board shall consult with the Director
of the Office of Government Ethics to--
(A) determine criteria for possible conflicts of
interest of staff of the Review Board, consistent with
ethics laws, statutes, and regulations for executive
branch employees; and
(B) ensure that no individual selected for such
position of staff of the Review Board possesses a
conflict of interest as so determined.
(5) Security clearance.--
(A) In general.--An individual appointed as an
employee of the Review Board shall have the security
clearance necessary to carry out the duties of the
position at the time of appointment.
(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
described in subsection (b) 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 chapter 10 of title 5,
United States Code.
SEC. 9. REVIEW OF RECORDS BY THE MISSING ARMED FORCES AND CIVILIAN
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 sworn in, publish an initial schedule for review of
all missing Armed Forces and civilian 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 swearing in of the
Review Board members, begin reviewing missing Armed Forces and
civilian personnel records, as necessary, 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 and civilian personnel be
transmitted to the Archivist and disclosed to the public in the
Collection in the absence of clear and convincing evidence that
the record is not a missing Armed Forces and civilian personnel
record.
(2) Postponement.--In approving postponement of public
disclosure of a missing Armed Forces and civilian personnel
record, or information within a missing Armed Forces and
civilian personnel record, the Review Board shall seek to carry
out the following:
(A) Provide for the disclosure of segregable parts,
substitutes, or summaries of the missing Armed Forces
and civilian personnel record.
(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 and
civilian personnel record.
(ii) A substitute record for that
information which is postponed.
(iii) A summary of a missing Armed Forces
and civilian personnel record.
(3) Reporting.--With respect to a missing Armed Forces and
civilian personnel record, or information within a missing
Armed Forces and civilian 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, the Committee on Homeland Security and Governmental
Affairs of the Senate, and the Committee on Oversight and
Government Reform of the House of Representatives 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 30 days after the
date of a determination by the Review Board that a
missing Armed Forces and civilian personnel record
shall be publicly disclosed in the Collection or
postponed for disclosure, 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 and civilian personnel record, or
information contained within a missing Armed Forces and
civilian 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 and
civilian 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 and civilian
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 and civilian
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 Homeland Security and
Governmental Affairs of the Senate;
(B) the Committee on Oversight and Government
Reform of the House of Representatives;
(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 and civilian personnel records.
(C) The estimated time and volume of missing Armed
Forces and civilian 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) Copies and briefs.--Coincident with the reporting
requirements in paragraph (2), or more frequently as warranted
by new information, the Review Board shall provide copies to,
and fully brief, at a minimum, the President, the Archivist,
leadership of Congress, the Chair and Ranking Members of the
Committee on Homeland Security and Governmental Affairs of the
Senate and the Committee on Oversight and Government Reform of
the House of Representatives, and the Chairs, Ranking Members,
Vice Chairs, as the case may be, of such other committees as
leadership of Congress determines appropriate on--
(A) recommendations for periodic review,
downgrading, and declassification, as well as the exact
time or specified occurrence following which specific
missing Armed Forces and civilian material may be
appropriately disclosed;
(B) the rationale behind each postponement
determination and the recommended means to achieve
disclosure of each postponed item;
(C) any other findings that the Review Board
chooses to offer; and
(D) an addendum containing copies of reports of
postponed records to the Archivist required under
subsection (b)(3) made since the date of the preceding
report under this subsection.
(4) 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 and civilian
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 and civilian
personnel that is held under the injunction of secrecy
of a grand jury.
(B) Treatment.--A request for disclosure of missing
Armed Forces and civilian 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 and civilian personnel;
and
(B) contact any other foreign government that may
hold information relevant to the loss, fate, or status
of missing Armed Forces and civilian 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 and civilian
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. REQUESTS FOR EXTENSIONS.
(a) In General.--The head of a Government office required to comply
with a deadline under this Act that is based on the date of
establishment of a quorum of the members of the Review Board under
section 7 may request an extension from the Review Board for good
cause.
(b) Extended Deadline.--If the Review Board agrees to the request,
the deadline applicable to the Government office for the purpose of
such requirement shall be such later date as the Review Board may
determine appropriate.
SEC. 13. 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(p).
(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 and civilian
personnel records have been made available to the public in accordance
with this Act.
SEC. 14. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are necessary
to carry out this Act, to remain available until expended.
SEC. 15. 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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