S. 3226 — Bring Our Heroes Home Act

This section sets forth congressional findings that all federal records relating to missing Armed Forces and civilian personnel should be preserved for historical, governmental, and public research purposes (including for families of the missing); carry a presumption of declassification; and be disclosed to enable the fullest possible accounting of such personnel. The section states that the purposes of the Act are to create the Missing Armed Forces and Civilian Personnel Records Collection at the National Archives and to require the expeditious public transmission to the Archivist and public disclosure of such records, subject to narrow exceptions.

This section defines terms used in the Act, including (1) "Archivist" as the Archivist of the United States; (2) "Collection" as the Missing Armed Forces and Civilian Personnel Records Collection established under section 4(a); (3) "Executive agency," which includes all executive branch entities and the Armed Forces but excludes non-appropriated fund agencies; (4) "missing Armed Forces and civilian personnel," meaning one or more missing persons (including those later designated "missing and presumed dead"); (5) "missing person," defined as a person under 10 U.S.C. §1513(1) or any other Federal Government civilian employee or contractor serving in direct support of, or accompanying, the Armed Forces in a missing status; and (6) "missing Armed Forces and civilian personnel record," meaning records relating to such personnel who became missing beginning December 7, 1941, and ending on the date of enactment that were created by, obtained by, or came into the custody of a government office, Presidential library, or the Armed Forces. The section further defines "Review Board" as the Missing Armed Forces and Civilian Personnel Records Review Board established under section 5, "public interest" as the compelling interest in prompt public disclosure of such records to inform families and the public about the fate of missing personnel and related government processes, and other terms such as "official investigation," "originating body," and "record."

This section directs the Archivist of the United States, not later than 90 days after a quorum of the Missing Armed Forces and Civilian Personnel Records Review Board is established, to (1) commence establishment of the Missing Armed Forces and Civilian Personnel Records Collection; (2) commence preparing a subject guidebook and index for the collection; and (3) establish criteria and formats, including required metadata and privacy safeguards, for executive agencies to transmit copies of missing Armed Forces and civilian personnel records. It further requires the Review Board, not later than 90 days after members are sworn in, to promulgate rules establishing guidelines and processes for disclosing records in the collection, including privacy safeguards. Finally, it assigns continuing legislative oversight jurisdiction over the collection to the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Oversight and Government Reform.

This section requires each government office, as soon as practicable after enactment and in advance of specified deadlines, to identify and locate all missing Armed Forces and civilian personnel records in its custody—including intelligence reports, congressional inquiries, POW debriefings, live sighting reports, and documents on POW camps, movements, exploitation, experimentation, or MIA-to-KIA status changes—and to prepare uncertified copies for transmission to the Archivist of the United States in formats established by the Archivist. It further directs each government office to submit a perjury-certified statement on its search and any untransmitted records; prohibits destruction, alteration, or mutilation of such records; bars withholding, redaction, postponement, or reclassification of previously public information in those records; and requires public justification reports to the Archivist, Review Board, and relevant congressional committees for any proposed substantial redactions or full withholdings. The section mandates full review, copying, and transmission—or Review Board review—of all such records by government offices and the Archivist within 270 days after a quorum of the Review Board is established under section 7; exempts the Defense POW/MIA Accounting Agency from declassifying records on active investigations, and exempts Defense and State Department casualty offices from those on cases receiving family support; and requires commencement of transmissions to the Archivist within the same 270-day period. (Thus, the provision accelerates public disclosure of historical MIA and POW records subject to limited national security review under Executive Order 13526.)

This section establishes grounds for the Archivist to postpone public disclosure of missing Armed Forces and civilian personnel records, subject to limitations in the Act. **(a) Records Less than 25 Years Old.** Disclosure may be postponed if (1) the information pertains to specified national security categories—including military plans, foreign government information, intelligence activities or sources, foreign relations, scientific or technological matters relating to national security, nuclear safeguards, system vulnerabilities, or weapons of mass destruction—and the disclosure threat outweighs the public interest; (2) the information is protected under 5 U.S.C. §552(b) (Freedom of Information Act); or (3) it reveals information described in paragraphs (1) through (9) of section 3.3(b) of Executive Order 13526 (classified national security information). **(b) Records 25 Years or Older.** Disclosure may be postponed only upon clear and convincing evidence that release would (1) reveal confidential human or nonhuman intelligence sources or methods, relationships with foreign intelligence services, impair cryptologic systems, reveal active military war plans, or cause serious harm to U.S. foreign relations or diplomatic activities and (2) pose a disclosure threat outweighing the public interest. **(c) Exceptions Regardless of Record Age.** Disclosure may be postponed if it would (1) reveal the identity of a living person who provided confidential information, posing substantial risk of harm (per 5 U.S.C. §552(b)(7)(D)); (2) constitute a substantial unwarranted invasion of personal privacy outweighing public interest; (3) harm Armed Forces survival, evasion, resistance, or escape (SERE) methods; or (4) conflict with U.S. law, regulations, or executive orders, including those governing classified information.

This section establishes as an independent establishment in the executive branch 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. The board consists of five members appointed by the President with Senate advice and consent, including one Chairperson appointed in consultation with the Archivist of the United States; one each in consultation with the Senate majority and minority leaders and House Speaker and minority leader; with qualifications that include U.S. citizenship, non-employee status in the executive branch, no regard to political affiliation, at least one professional historian and one attorney, and consultation with the Office of Government Ethics on conflicts of interest and recommendations from specified historical, archival, legal, veterans', and families' organizations. The section requires expedited security clearances for members; Senate referral of the Chairperson nomination to the Committee on Homeland Security and Governmental Affairs; filling of vacancies within 60 days; a quorum of a majority including the Chairperson; removal only by impeachment or presidential action for cause (with judicial review in U.S. District Court for the District of Columbia and a report to congressional leadership and committees within 10 days); and compensation at the daily equivalent of Executive Schedule level IV pay plus travel expenses. The Review Board must consider and render decisions on determinations by government offices to seek postponement of disclosure of such records.

This section requires the Armed Forces and Civilian Personnel Records Review Board to appoint an Executive Director within 45 days after its initial meeting—with specified qualifications, expedited security clearance, duties as principal liaison and administrator (but without decision authority on record disclosure), and removal by majority vote of the Review Board—and authorizes the appointment of staff without regard to competitive service requirements. It caps compensation for the Executive Director and staff at the maximum rate payable for level V of the Executive Schedule and authorizes advisory committees subject to the Federal Advisory Committee Act.

This section establishes procedures for the Missing Armed Forces and Civilian Personnel Records Review Board to review and disclose records related to missing Armed Forces and civilian personnel. Specifically, it directs the board to (1) publish an initial review schedule on the National Archives website within 90 days after all members are sworn in and begin reviews within 180 days; (2) presume public disclosure of relevant records through the Archivist absent clear and convincing evidence otherwise, and for approved postponements, require segregable parts, substitutes, or summaries from originating bodies; (3) transmit unclassified reports on postponed records—including actions taken, justifications, and recommended future disclosure times—to the Archivist and specified congressional committees; (4) notify originating bodies and post determinations online within 30 days, while informing the President and committees with written justifications; (5) refer records discovered post-termination to the Archivist and Armed Services committees for oversight and potential declassification; (6) post public notices summarizing postponements every 30 days beginning 60 days after the first postponement; and (7) submit annual reports on board activities to the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Oversight and Government Reform, beginning one year after enactment.

This section authorizes the Review Board to request the Attorney General to petition U.S. or foreign courts to release information under seal relevant to the loss, fate, or status of missing Armed Forces and civilian personnel, including grand jury materials (deeming such requests a showing of particularized need under Federal Rule of Criminal Procedure 6). This section expresses the sense of Congress that (1) the Attorney General assist the Review Board in good faith to unseal relevant records; (2) the Secretary of State contact the governments of Russia, China, and North Korea, as well as any other relevant foreign governments, to seek disclosure of such records; and (3) all agencies fully cooperate with the Review Board consistent with the public interest.

This section establishes rules of construction for the Act. Specifically, it (1) provides that the Act's requirements for transmitting records to the Archivist or public disclosure take precedence over other laws (except IRC §6103), judicial decisions, or common law doctrines prohibiting such actions, with an exception for deeds governing gifts and donations to the U.S. government; (2) states that the Act does not eliminate or limit rights to file FOIA (Freedom of Information Act, 5 U.S.C. §552) requests with executive agencies or seek judicial review of agency decisions thereunder; (3) preserves judicial review under the Administrative Procedure Act (5 U.S.C. ch. 7) of final actions taken or required under the Act; (4) clarifies that the Act does not revoke or limit existing disclosure authorities of the President, executive agencies, Congress, or other government entities; and (5) adopts Act procedures applicable to the Senate and House as respective chamber rules, superseding inconsistent rules only to that extent and subject to each chamber's constitutional rulemaking authority.

This section authorizes the head of a government office to request an extension from the Review Board, for good cause, on any deadline under this Act based on the date of establishment of a quorum of the Review Board's members under section 7. If the Review Board approves the request, it sets the applicable extended deadline.

This section terminates the Act's provisions pertaining to the appointment and operation of the Review Board upon the Board's termination and the end of its members' terms under section 7(p). It maintains the remaining provisions in effect until 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 the Act.

This section provides a severability clause stating that if any provision of the Act, or its application to any person or circumstance, is held invalid, the remainder of the Act and the application of that provision to other persons or circumstances remains unaffected.