Clinton's hidden openness legacy

By Kate Martin and Tom Blanton

President 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 following accomplishments:

• President 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.

• Clinton's 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.

Perhaps most 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 security.

Kate Martin 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."