FOI update: Government secrecy
By Steven Aftergood
The final year
of the Clinton administration was marked by a further loss of the
momentum towards "openness" that had seemed so promising a few years
earlier. Congress imposed new limitations on funding for declassification,
and FOIA backlogs continued to grow in most national security agencies.
the Department of Energy became a discredited notion as congressional
overseers blasted DOE and the nuclear weapons laboratories for recurring
security violations. In a climax of the ongoing security frenzy,
both houses of Congress adopted legislation to make "leaks"
i.e., the unauthorized disclosure of classified information
On the other
hand, there were a number of encouraging developments:
- The congressional
anti-leak measure was vetoed by President Clinton following an
unusually effective campaign by news organizations, press advocates
- The declassification
of documents on U.S. covert action in Chile, including the release
in large part of long-contested CIA files, was an important victory
over cold war secrecy.
- A healthy
127 million pages of historical documents were declassified (though
not necessarily available to the public), according to the latest
statistics of the Information Security Oversight Office.
- A steadily
increasing amount of official national security information was
published online, and more Americans had more access to more government
information than ever before.
- While several
new FOIA (b)(3) exemptions were enacted, others such as
a proposal to categorically exempt Defense Intelligence Agency
"operational files" were successfully resisted.
The outstanding question today is the character of Bush administration
policies concerning official secrecy. To date, there is only slight
evidence of any kind of change in existing policy (such as the refusal
to release an unclassified National Security Presidential Directive).
It is possible that there will be no significant new departures.
The previous Bush Administration left President Reagan's executive
order on classification policy unmodified.
decision point looming on the horizon concerns the October 2001
deadline established by the Clinton administration for "automatic
declassification" of most 25-year historical documents, "whether
or not they have been reviewed." This unprecedented provision is
strongly opposed by various agencies and influential members of
Congress, who will pressure the Bush administration to nullify the
requirement. From a public access point of view, preserving the
October deadline will be critical to maintaining the productivity
of the Clinton Administration's declassification program.
The notion that the security of the United States depends above
all on certain "vital secrets" rather than on our constitutional
system of government, or our economy, or our military strength,
or many other factors was reinforced during the past year
by the controversies over security failures at Los Alamos National
Laboratory, and most recently by the arrest of FBI agent Robert
Hanssen on charges of espionage.
seems to have been learned from the exaggerated claims about damage
to national security that were made by government witnesses in the
Wen Ho Lee case (which ended last September with an extraordinary
apology by the court to Lee). The concept of the "vital secret"
is taken for granted, but no one speaks of "vital disclosure" or
A dash of controversy arose last year over one of the most disturbing
areas of excessive government secrecy, concerning military plans
for fighting a nuclear war. The number of targets selected by military
planners and the number and types of nuclear weapons they believe
are needed to destroy those targets together define the size and
structure of the U.S. nuclear arsenal. Until those plans are changed,
significant reductions in nuclear weapons cannot be accomplished.
this crucial information is entirely exempt from congressional oversight,
as Sen. Bob Kerrey, D-Neb., discovered last year. Not even a small
subset of the congressional leadership is privy to the targeting
plans, and not even on a classified basis. See then-Sen. Kerrey's
discussion of this situation. http://www.fas.org/sgp/congress/2000/kerrey2.html.
history of the 1953 Iran coup
Another highlight of the past year was The New York Times
publication of the CIA's classified history of the 1953 covert action
in Iran, which restored the shah to power. In the course of a FOIA
lawsuit brought by the National Security Archive, the CIA claimed
that no more than one sentence of this 200-page report could be
declassified. But the Times obtained a leaked copy of the
report and published essentially the entire document (deleting a
few agents' names) on its Web site last April.
of the document clearly illustrated the corruption of CIA's FOIA
and classification policies. "After reading the material in the
press," former DCI James Woolsey told a congressional hearing, "I
can see no defensible reason why, after review, it was not released
officially by the government as I had ordered."
Under the congressional
proposal to criminalize leaks, it may be noted, the person who delivered
the classified report to The New York Times would be a felon.
The CIA officials who insisted on withholding the report, on the
other hand, would be guilty of no wrongdoing.
Despite declassification of the intelligence budget total in 1997
(and 1998) as the result of an FOIA lawsuit, the current budget
total remains classified. What's more, the CIA has insisted that
historical intelligence budget data must also remain classified.
The CIA persuaded
the Interagency Security Classification Appeals Board to uphold
the classification of the 1988 budget total (even though the total
from ten years later already had been declassified).
Late last year
the CIA also upheld on appeal a FOIA denial of historical intelligence
budget figures dating back to 1947. The agency's assertion that
such information could damage national security today reflects its
confidence that there are no effective checks and balances of CIA
classification policy. Neither Congress nor the courts, it seems,
will overturn even the most absurd classification decision.
is director of the Project on Government Secrecy for the Federation
of American Scientists.