hidden openness legacy
By Kate Martin
and Tom Blanton
Clinton's veto just before election day in November 2000 of the
proposed "official secrets act" overrode not only the Congress,
but also Clinton's own Justice Department and Central Intelligence
Agency, turning back what was the greatest challenge to national
security openness since the government tried to stop publication
of the leaked Pentagon Papers in 1971. This remarkable veto testifies
to a largely unnoticed Clinton legacy of championing the public's
right to know in matters of foreign policy and security.
As the first
post-Cold War president, Clinton had a special opportunity to reshape
our country's national security apparatus. On substantive policy
there was far more continuity with the Reagan and Bush administrations
than Clinton national security staff would like to admit; but on
national security secrecy, Clinton set a new course, including some
extraordinary successes and some notable failures. Consider the
Clinton ordered the declassification of more pages of previously
secret U.S. government documents than all his predecessors put
together. In the past four years, under the new Clinton executive
order, the government has declassified an average of 180 million
pages per year, compared to an average of less than 13 million
pages per year from 1980 to 1994.
Executive Order 12958, signed in 1995, changed the default settings
on the secrecy system, replacing the Reagan-era's indefinite duration
of new secrets with specific sunsets, five years for "secret"
level, ten years for "top secret." The order required new accountability
for the classifiers and empowered an interagency panel that has
overruled agency stonewalling in 80% of its cases, ordering releases
in full in 40% and in part in another 40%.
- Early in
his administration, Clinton and his Energy Department responded
to journalistic exposes of government-run radiation experiments
on humans during the Cold War, among other previously concealed
nuclear hazards to public health, with openness instead of stonewalling.
Clinton appointed a blue-ribbon commission that fully investigated
the radiation experiments. Energy Secretary Hazel O'Leary launched
an openness initiative that dramatically reduced the backlog of
historic but no longer damaging nuclear secrets. O'Leary also
attempted a new "higher fences" initiative to strengthen protection
of real secrets, but ironically, the Pentagon has prevented implementation
because of increased costs.
- Clinton ordered
the release of tens of thousands of pages of highly classified
documents on human rights abuses in Guatemala, El Salvador, and
Chile, in response to requests from United Nations-sponsored truth
commissions and human rights organizations, over the objections
of his own intelligence agencies. These documents showed U.S.
witting involvement and even complicity in the abuses, including
CIA operations in Guatemala as recently as the 1990s. Even so,
Clinton articulated the historically important realization that
U.S. national security interests can often be best served by disclosure
rather than secrecy, thus encouraging democratization and the
rule of law abroad and at home.
Of course, the
Clinton openness legacy had its share of failures as well. For example:
- Clinton initially
concluded that release of the overall intelligence budget (arguably
compelled by the Constitution, though never required by Congress)
would not harm national security, and we learned the actual numbers
for FY97 and for FY98. Weakened by the impeachment battle, however,
Clinton acquiesced in CIA director George Tenet's decision to
keep classified the FY99 number, on the dubious grounds that revealing
the trend line (according to public reports, an increase up to
$29 billion) would somehow help Saddam Hussein.
- The CIA's
Tenet has also gotten away with reneging on the promises of his
three predecessors at CIA to declassify the historical covert
operations that took place in Italy in 1948, Iran in 1953, and
elsewhere in the early Cold War. And many of the most important
historical archives at both CIA and the FBI were exempted from
the automatic declassification program.
- The Clinton
White House declared that National Security Council records were
not subject to the Freedom of Information Act, although administrations
for 25 years had agreed they were. The Clinton NSC then "voluntarily"
chose to continue to abide by the FOIA's requirements, but this
declaration leaves every future administration free to lock up
both current and historical records.
- The administration
killed Sen. Daniel Patrick Moynihan's secrecy-reform legislation,
mainly over the provision requiring judges to consider the public
interest balancing test when they review agency decisions under
the FOIA. Then, beyond just preserving that status quo, the administration
sought in the Weatherhead case to eviscerate judicial review,
suggesting that the Pentagon Papers case was wrongly decided and
that any ruling that discloses classified information under FOIA
over the government's objections would be unconstitutional.
- The administration
proposed a sweeping amendment that would undermine the FOIA in
the name of protecting critical infrastructure, and the proposal
is still under consideration.
importantly, the administration largely failed to defeat repeated
congressional rollbacks of government openness. Beginning with an
attack on the Energy Department's openness initiative, claiming
it gave away our nuclear secrets to the Chinese, for example, Congress:
- Placed limits
on the total dollars the Pentagon can spend on declassification
($30 million last year, when OMB estimates the government spent
$3.8 billion this year on keeping secrets, not including the CIA,
whose costs are classified).
- Forced a
re-review of 52 million pages of 25-year-old documents, at untold
cost to the taxpayer, only to find about 25 documents totaling
560 pages that should not have been declassified. Energy reported
to Congress that, "Only in one case is there compelling evidence
that classified information was compromised, i.e., obtained and
used by a researcher ... [it was] related to the deployment of
nuclear weapons in a foreign country in the early 1950's. …"
- Slowed to
a crawl the historic advances in declassification achieved in
the past five years.
- Passed without
a single public hearing the statute vetoed by Clinton that would
have made a felony out of any leak of "properly classified" information,
even though Clinton's executive order recognizes that properly
classified data may sometimes be appropriate for release if the
public interest in disclosure outweighs the damage to national
is director of the Center for National Security Studies and the
general counsel of the National Security Archive. Tom Blanton is
director of the archive, which won the 1999 George Polk Award for
"piercing self-serving veils of government secrecy."