This is a continuation of the detailed summary of the relevant sections of S.2226 National Defense Authorization Act for Fiscal Year 2024 with a focus on the Unidentified Anomalous Phenomena Disclosure Act of 2023 as amended to the FY 2024 military budget. Part I is available here.
In particular, this section focuses on the creation and operation of the Review Board (an independent 9-person board appointed by the President to investigate, with subpoena and hearing powers, UAP records and materials and prepare them for public disclosure), provides a robust legal framework for accessing and archiving information for the ultimate goal of public disclosure, gives funding and other legal necessities, and curiously compels the Secretary of State to advocate for other nations to engage in disclosure as well.
Sec 9007 Establishment and Powers of the Unidentified Anomalous PHenomena Records Review Board
SEC. 9007 constructs an independent Review Board of nine members with an impressive mandate—managing, reviewing, and disclosing records related to UAP. This represents a fundamental acknowledgment of the public’s right to access such information, implicitly accepting the societal importance of these phenomena. The board’s authority and operational independence are substantial, with extensive powers to direct government offices, access records, hold hearings, subpoena witnesses and documents, issue oaths, and more. This capacity is balanced by rigorous accountability measures, ensuring legislative oversight and preserving the board’s integrity.
The board operationalizes a blend of democratic accountability and meritocracy in board appointments. Not only does the President play a role in the appointment process, but leaders from different spheres of society have a voice, too (including the Academy of Sciences, American Historical Association, and an unnamed UAP nonprofit). This democratic element is then counterbalanced by rigorous qualification criteria for board members which requires at least one member to be a scientist or engineer, a professional historian, an economist, and a sociologist among other professionals. Further, enshrined are protections for whistleblowers to have a safe platform to disclose information.
The Act sets a sunset clause (September 30, 2030), meaning the board has a fixed life, pending a potential extension by Congress, at which point Congress will assume the role.
(a) Establishment is the operative clause establishing the Unidentified Anomalous Phenomena Records Review Board as an independent agency. An independent agency typically operates outside the influence of the executive branch, not being part of a federal executive department. This can insulate its operations from political shifts, but also has implications for accountability and oversight.
(b) Appointment outlines the board’s composition. It indicates that the President, with the Senate’s approval, appoints the board’s nine members, who must be U.S. citizens, within 90 days which are then approved by the Senate (replacements nominated within 30 days). The nominations are made with considerations from bipartisan Congressional leadership, Sec of Defense, National Academy of Sciences, an unnamed UAP nonprofit, and the American Historical Association (once again noting the interest in the historical record).
Interestingly, any individual with direct experience (legacy or current) related to collecting or examining “technologies of unknown origin” or examining “biological evidence” of NHI are excluded from consideration. There is a mandate that the members include at least one current or former national security official, foreign service official, scientist or engineer, economist, professional historian, and sociologist. Clearly, the intention is to measure the historical and societal impact of the revelations the legislators believe are contained within these records. Each individual will be reviewed for conflicts of interest and removed on detection.
(c) Security Clearances are granted to all nominees in an expedited manner. Specifically, these include access to “any and all relevant Presidential, departmental, and agency special access programs.”
(d) Consideration by the Senate simply establishes that senate nominations will be made by the Committee on Homeland Security and Governmental Affairs of the Senate.
(e) Vacancy outlines the procedure to fill a board vacancy, which should be done within 30 days. Prompt filling of vacancies helps maintain the board’s operational efficiency and effectiveness.
(f) Removal of Review Board Member establishes the terms for removing a board member. There are protections against arbitrary removal, enhancing the board’s independence. Any removal must be duly justified and performed either by impeachment or conviction, direct action of the President, or via Judicial Review from civil action. Should the President remove a member, a report documenting the reasons must be submitted to Congress, further enhancing the board’s accountability.
(g) Compensation of Members at a rate equivalent to the daily rate for level IV of the Executive Schedule (approximately $690 per work day as of writing), and they will be allowed reasonable travel expenses. This allows the board to attract and retain qualified individuals by offering competitive compensation.
(h) Duties of the Review Board The Review Board’s main responsibility is to consider and render decisions on the postponement of disclosure of unidentified anomalous phenomena records. This critical duty allows the board to control the pace and extent of public disclosures, balancing transparency with national security and other considerations.
(i) Powers granted are extensive and essential for carrying out its duties. The board can direct government offices, have access to records, hold hearings, subpoena witnesses and documents, hold hearings, administer oaths, and even use the Federal Acquisition Service and United States mails like other executive agencies. These powers underscore the board’s authority to efficiently access and process information related to anomalous phenomena.
(j) Witness Immunity allows the board to grant protections encouraging witnesses to provide information without fear of legal repercussions. It further emphasizes the act’s commitment to uncovering truth and providing a safe platform for whistleblowers.
(k) Oversight is maintained by the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Accountability of the House of Representatives which will take over when the Review Board is terminated. Notably, the Act grants “all security clearances and accesses held by the Review Board, including to relevant Presidential and department or agency special access and compartmented access programs” to members and staff of those committees.
(m) Interpretive Regulations gives the board flexibility and control in defining how it fulfills its mission and implements this legislation.
(n) Termination and Winding Down provides for the board’s termination on September 30, 2030, unless extended by Congress. It ensures that the board’s records are preserved for historical and analytical purposes, and maintains accountability through a final report to the President and Congress.
In sum, this act creates a powerful and independent board charged with the complex task of managing, reviewing, and disclosing records related to unidentified anomalous phenomena. The board’s powers and responsibilities are thoughtfully balanced with measures to ensure accountability, impartiality, and integrity. The underlying philosophical implication is an acknowledgment of the public’s right to be informed about matters of potential national significance, while carefully considering national security and operational concerns.
Section 9008 Unidentified Anomalous Phenomena Records Review Board Personnel
SEC. 9008 of the Unidentified Anomalous Phenomena Records Review Board Personnel Act outlines the details surrounding the establishment and operations of the Review Board’s personnel.
Under subsection (a) concerning the Executive Director, the Act sets out the appointment procedure and qualifications for this role. A key point is the requirement for the Executive Director to be a private citizen (not a current Federal Government employee) of integrity and impartiality. The Act emphasizes that this individual should not have any current or previous engagement with programs or authorities related to the collection, examination, or exploitation of unidentified anomalous phenomena. It enforces mandatory conflict-of-interest reviews for the Executive Director, ensuring this position remains free of any personal biases or conflicting interests that could potentially compromise the mission of the Review Board. The Director shall be awarded all necessary clearance and access “including to relevant Presidential and department or agency special access and compartmented access programs.”
The Executive Director serves as the principal liaison to the Executive Office of the President (which they can make appeals to) and Congress in addition to the administration and coordination of all activities of the Review Board and their review of records.
The Executive Director’s removal is safeguarded by the Act, ensuring that it can only occur under specific circumstances, such as inefficiency, neglect of duty, malfeasance, physical disability, mental incapacity, or any other condition that substantially impairs their performance. This provision is pivotal, as it ensures that the Executive Director can only be removed for substantial cause, reinforcing the role’s independence and protecting it from undue external influences including from the Executive Office itself.
Subsection (b) of the Act focuses on the staff of the Review Board, with the Board given the power to appoint and terminate additional personnel without regard to civil service laws. This autonomy reflects the Board’s independence, allowing it to create its team based on the unique requirements of its mission. The Act reinforces the need for staff to be citizens of integrity and impartiality, and institutes consultation with the Director of the Office of Government Ethics to ensure no potential conflicts of interest. It further stresses the staff will possess all necessary security clearances and access (those that cannot pass the checks necessary for this clearance are immediately terminated).
The Act additionally designates that one representative from the National Declassification Center within the National Archives will advise and support the Review Board’s disclosure postponement review process, bolstering the Board’s resources and knowledge base.
Subsection (c) outlines the compensation process for the Executive Director (~$212,100 annually) and additional personnel, offering them competitive pay rates that are independent of standard federal pay scales. This provision reflects the importance of attracting highly qualified individuals to serve on the Review Board.
Subsection (d) provides the Review Board with the authority to create advisory committees, subject to certain statutory provisions. These committees can enhance the Board’s expertise and contribute to its decision-making processes.
Lastly, subsection (e) underscores the need for all Review Board personnel, including the Executive Director, to qualify for any necessary security clearances before assuming their roles. It allows for conditional employment in accordance with subsection (b)(3)(B), though if failure to obtain clearance occurs, the individual will be terminated from their position.
Section 9009 Review of Records by the Unidentified Anomalous Phenomena Records Review Board
SEC. 9009 focuses on identifying the powers, rights, and obligations of the Review Board, as well as the effects of these powers in the broader context of governance, transparency, and democratic accountability.
(a) Custody of Records Reviewed by Review Board stipulates that while under review, the records of unidentified anomalous phenomena will stay within the custody of the government office from which they originated. This is designed to ensure that the records are securely maintained and managed efficiently. However, the law also provides two exceptions to this rule:
- If the Review Board needs to physically transfer the records to conduct an independent and impartial review, it can do so. This provision could be interpreted as an oversight mechanism, allowing the Review Board to ensure transparency and thorough scrutiny of the records.
- The records may also be transferred if such a transfer becomes necessary for an administrative hearing or other official Review Board function.
(b) Startup Requirements outlines a timeline and a set of obligations for the Review Board once it is appointed. It appears there is desire to ensure the Review Board takes swift action after its establishment as they have 90 days to publish a review schedule and no more than 180 days to begin the review process. They must periodically (no less than twice a year) publish a revised schedule containing any new records discovered.
(c) Determinations of the Review Board delineates the standards for the Review Board’s decisions regarding the disclosure of records. Here, the legislator appears to be balancing the principles of open government and national security. The Review Board is directed to transmit all unidentified anomalous phenomena records to the Archivist for public disclosure, unless there is clear and convincing evidence that either the record isn’t an UAP record, or the record or information within it qualifies for postponement of disclosure.
In cases where the public disclosure of a record is postponed, the Review Board is to ensure that as much information as possible (segregable parts, substitutes, or summaries, for example) is made available to the public in a form that doesn’t compromise the reasons for the postponement.
Further, for postponed records, it must create a “Controlled Disclosure Campaign Plan” to be sent to key political figures and bodies (President, Archivist, relevant Senate and House Committees). This plan needs to include both a description of the actions taken to postpone the disclosure and a benchmark-driven plan for eventual declassification and public disclosure, including an exact time or specified occurrence at which point disclosure will be allowed.
The Review Board is required to notify the head of the originating body of the record about its determination and to publish a copy of the determination in the Federal Register within 14 days.
(d) Presidential Authority Over Review Board Determination establishes that the President retains ultimate authority over the Review Board’s determinations about public disclosure or postponement thereof when the record concerns the executive branch. In such an event, the President must abide by the standards set forth in section 9006. They must provide both an unclassified and classified written certification specifying the decision and its justification. The Review Board is tasked with publishing a copy of any unclassified written certification provided by the President regarding the postponement of records, and it must amend the Controlled Disclosure Campaign Plan as required.
The mechanism is interesting as the board cannot directly overrule the President, but it provides a form of accountability to their actions where they must 1) acknowledge the existence of records and 2) justify their decision to the public (along with whatever electoral response that may engender).
(e) Notice to Public requires the Review Board to publish a summary of approved postponements every 30 days. This mechanism for public notification ensures that the Review Board is held accountable and allows for the public to stay informed of the Board’s activities. The notice must contain a description of the subject, the originating agency, length or other physical description, and each ground for postponement.
(f) Reports by the Review Board provides detailed requirements for the Review Board to report its activities. This obligation encompasses financial reports, progress updates, special problems encountered, and future recommendations. The reporting requirements extend to the President, Archivist, Congress, and all government offices whose records have been reviewed.
The first report will be issued 1 year after the enactment of this Act and will be updated every year until the termination of the board. Within this report will be a financial report of all expenses, progress reports on review, transmission, and public disclosure, estimated time and volume of UAP records remaining, any special problems (including level of cooperation), a record of review activities (including postponement decisions), suggestions to Congress for additional legislative needs.
The board must provide notice of the completion of their work 90 days before such an event. Finally, the all-domain anomaly resolution office (AARO) must be briefed.
Section 9010 Disclosure of Recovered Technologies of Unkown Origin and Biological Evidence of Non-Human Intelligence
This is the big guns of the piece. On enactment of this Act, all UAP related material (including “recovered technologies of unknown origin and biological evidence of non-human intelligence”) become property of the federal government regardless of current possession. These materials must be made available to the Review Board “in a timely manner.” For investigatory purposes, the Review Board is given access to all testimony from UAP “witnesses, close observers and legacy program personnel and whistleblowers.” Further, the Review Board is mandated to solicit additional UAP witness and whistleblower testimony (along with accompanying legal protections which will be granted).
(a) Exercise of Eminent Domain exerts the Federal Government’s power of eminent domain over “recovered technologies of unknown origin and biological evidence of non-human intelligence,” which may currently be in private hands. This provision grants the government a right—primarily a public right—over any such evidence, to take ownership away from private entities (such as the military industrial complex) or individuals. This measure is a crucial first step in ensuring that these materials fall under the purview of a public review board, facilitating transparency and equitable access to information.
(b) Availability to Review Board obligates private entities or individuals to surrender such materials to the Review Board in a timely manner (location permitting).
(c) Actions of Review Board establishes the Review Board’s responsibilities in examining these materials. They are mandated to confirm whether the materials truly constitute evidence of non-human intelligence or unknown technologies. It is noteworthy that the standard of proof demanded is “beyond a reasonable doubt,” reminiscent of the high evidentiary threshold applied in criminal cases. Secondly, they need to determine whether such materials should be postponed from public disclosure in line with the guidelines of this division. Lastly, they need to provide recommendations on any changes that should be made to the current disposition of such materials, ostensibly to facilitate full disclosure to the public.
(d) Review Board Access to Testimony and Witnesses This clause gives the Review Board the right to access any related testimony from witnesses, observers, and whistleblowers within the Federal Government’s possession as of and after the date of the enactment of this Act.
(e) Solicitation of Additional Witnesses empowers the Review Board to seek additional testimonies and provides a level of protection for whistleblowers under section 1673(b) of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (50 U.S.C. 3373b(b)). This clause seeks to ensure that the board has the freedom to gather as much information as possible, while simultaneously safeguarding the rights of those who may have critical but sensitive information about these unexplained phenomena.
Section 9011 Disclosure of Other Materials and Additional Study
SEC. 9011 extends the principles and processes detailed in the previous section (SEC. 9010) to other materials that may be pertinent to understanding UAP and related subject, but which may be protected by court seals or grand jury secrecy. The section allows the Review Board to request the Attorney General to petition any court in the United States as well as abroad to release pertinent information. Further, the Attorney General can be asked to unseal information held under the secrecy of a grand jury (including particularized need by default).
Most interesting though is the following passage:
“the Secretary of State should contact any foreign government that may hold material relevant to unidentified anomalous phenomena, technologies of unknown origin, or non- human intelligence and seek disclosure of such material”
Including this in speculative legislation would be an insane choice, compelling one of the highest ranking members of Government to bring this up with adversarial states. It speaks to the conviction they have about the phenomena and that other major powers are aware and engaging in active retrieval and engineering projects (as Grusch has alleged).
(a) Materials Under Seal of Court authorizes the Review Board to request the Attorney General to petition a court, either in the United States or abroad, to unseal any information relevant to the subject matter. This provision expands the mandate of the Review Board beyond merely examining physical evidence, allowing it to delve into legally protected information that might shed light on unidentified anomalous phenomena. Notably, this authority extends to courts abroad, potentially giving the Review Board an international reach.
The statute further enables the Review Board to call upon the Attorney General to request the unsealing of information related to the subject matter, held under grand jury secrecy. Like the previous provision, this clause seeks to ensure that all relevant information, regardless of the level of legal protection, is accessible to the Review Board for a comprehensive review.
Importantly, the act provides that a request for the disclosure of such materials will automatically be considered a demonstration of “particularized need” under Rule 6 of the Federal Rules of Criminal Procedure. This specification simplifies the legal process of unsealing grand jury records, which typically requires a showing of particularized need. By declaring that such requests inherently meet this standard, the act expedites the unsealing process, reducing potential bureaucratic hurdles.
(b) Sense of Congress serves as a directive from the legislature, indicating its perspective on the roles of various government bodies in assisting the Review Board. The Act calls upon the Attorney General to assist the Review Board in unsealing any relevant records, adding an expectation of “good faith” effort, underscoring the Congress’ intention that there should be active, sincere collaboration from the Attorney General’s office.
The Secretary of State is directed to engage foreign governments that might hold material relevant to the topics at hand, further highlighting the international implications and reach of this effort. This engagement is not confined to merely requesting information, but encompasses seeking active disclosure of such material. All heads of Executive agencies should fully cooperate with the Review Board to facilitate the disclosure of all relevant material.
Section 9012 Rules of Construction
SEC. 9012 articulates the legal and procedural principles that will govern the application of this legislative division, and details the division’s interaction with other laws, rules, and forms of legal authority. This section provides vital clarifications to prevent conflicts and ambiguities in interpretation and implementation. It underscores the commitment to transparency, while preserving existing legal mechanisms and powers.
(a) Precedence Over Other Law a clear statement of dominance: when the division requires the transmission of a record to the Archivist or public disclosure, it shall supersede any conflicting provision of law (except for section 6103 of the Internal Revenue Code of 1986 concerning tax return confidentiality). This includes not just other statutes, but also judicial decisions interpreting those statutes and common law doctrines that might otherwise prohibit disclosure or transmission. The only exception is for deeds governing gifts and donations of records to the US Government. In effect, the provision asserts the primacy of the law at hand, ensuring that its requirements for transparency are not frustrated by other legal principles, such as Department of Energy shenanigans, with limited exceptions.
(b) Freedom of Information Act section does not limit or eliminate the right to file requests under the Freedom of Information Act (FOIA). This maintains the status quo, allowing the public to continue accessing government-held information through FOIA. It serves as a reassurance that the law does not constrain existing rights of public access to information.
(c) Judicial Review makes clear that nothing in this division precludes judicial review of final actions taken or required under it. This provision safeguards the checks and balances inherent in the system, ensuring that the courts can still review and potentially overturn decisions made under this division. It upholds the important principle of legal accountability.
(d) Existing Authority ensures that the division does not revoke or limit the existing authority of the President, executive agencies, the Senate, the House of Representatives, or any other federal entity to publicly disclose records in their possession. This not only preserves current powers but also reiterates the central purpose of the law—to promote transparency.
(e) Rules of the Senate and House of Representatives relates specifically to legislative procedure within the Senate and the House of Representatives. It establishes that any provision of this division that sets a procedural rule in the Senate or the House is to be regarded as an exercise of each body’s rulemaking power and will become part of the rules of that body. However, this only applies to the extent that the provision is inconsistent with existing rules, and it is acknowledged that either House may change these rules as they see fit.
Section 9013, 9014, and 9015
The remainder of the sections are housekeeping. SEC. 9013 dissolves provisions pertaining to the review board once the review board is terminated. All other provisions are to remain in effect until the Archivist certifies to the President and Congress all records are available to the public. AARO, or any successor, is tasked with developing a standardized declassification guidance for any future records.
SEC. 9014 authorizes $20,000,000 for FY 2024 to carry out the provisions of this division.
SEC. 9015 serves as a standard clause in legal documents, stipulating that if any provision of this division, or its application to any person or circumstance, is deemed invalid, the remainder of the division and the application of that provision to other individuals or situations will not be affected by the invalidation. This crucial legal principle ensures that if a court finds a particular aspect of the law unconstitutional or invalid for any reason, the rest of the law remains intact. This maintains the law’s overall integrity and intention, even if individual provisions are contested.