'We are creating 10,000 secrets a day'

Ombudsman

By Paul McMasters
First Amendment Ombudsman
First Amendment Center
pmcmasters@freedomforum.org

05.11.98

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Text of testimony by Freedom Forum First Amendment Ombudsman Paul McMasters before the Subcommittee on Government Management, Information, and Technology of the House Committee on Government Reform and Oversight, given May 11 in Room 2154 of the Rayburn House Office Building. Although The Freedom Forum does not lobby or take positions on legislation, McMasters frequently appears before congressional committees and government commissions to speak on First Amendment issues.

I would like to begin my remarks today with a question: How should the United States Government approach the enormous problem of declassifying national security documents? Although that is not the immediate subject of H.R. 2635, it is the major issue lurking just below the surface of the bill. In raising the broader issue, I do not mean to suggest that the subject of human right violations in Guatemala and Honduras is unimportant. The sponsors of the legislation have set out compelling findings demonstrating why the public interest would be served by the release of additional documents.

There is an important aspect of this broader issue, however, that must be kept in sharp focus as these matters are deliberated: A vital public interest also is served by the press providing a constant and credible flow of information between government and the people. The press can only do that effectively, however, when common-sense policies are in place for the declassification of secret records. Historically, a culture of secrecy within the federal government has thwarted the press's efforts to get information to the public. That, in turn, has adversely influenced the public's confidence in government, which in turn has a negative impact on elected officials' ability to make public policy. I hope we all agree that maximum access to government information and a presumption of openness by government officials work to improve government and assure the vitality of our democracy. To do otherwise is to foster paranoia and conspiracy theories on the part of the public and a lack of accountability on the part of the government.

In the 104th Congress, this Subcommittee heard testimony on H.R. 1281, the "War Crimes Disclosure Act." That proposal would have made it difficult for the government to continue to rely on outdated national security concerns as an excuse for withholding information about Nazi war criminals. The sponsors of that legislation also made a compelling case that unnecessary government secrecy was contrary to the public interest.

The 102nd Congress enacted into law the "President John F. Kennedy Assassination Records Collection Act of 1992," Public Law 102-526. That law was passed in response to strong public and congressional interest in the immediate disclosure of records related to the assassination of President John F. Kennedy. The law established the Assassinations Records Review Board to direct and oversee the declassification and disclosure process. To date, more than 3 million pages of these files have been made available to the public, the press, researchers, historians, and others. The Board's work is not yet complete, but the process appears to have been highly successful. The public interest has clearly been served by the release of Kennedy assassination documents.

The Kennedy assassination records proposal became law in part because of the tremendous public attention to the subject that resulted from a popular movie. The "War Crimes Disclosure Act" became Public Law 104-309 in October 1996, but only in the form of a sense of the Congress resolution. The substantive provisions of the original proposal were dropped. (I should note that similar legislation is before the present Congress, also.) Now, this Congress is deliberating the prospects for H.R. 2635, the "Human Rights Information Act."

I see nothing wrong with the Congress considering and enacting laws directing the declassification of documents on matters of significant public interest. Decisions about declassification are more routinely made by the agencies that created the documents, but the agencies do not always have a sufficient perspective to determine national priorities in a systematic way. Or, they may have other interests and conflicts that prevent a fair assessment of public priorities. Also, documents on any given national security subject are likely to be scattered throughout the files of many different agencies. Trying to coordinate declassification activities among various agencies under the current process is difficult at best. Everyone who has looked at the classification process has agreed that we continue to classify more records than require protection in the interest of national security. The backlog of document awaiting declassification is measured in the billions of pages. The resources available for declassification are, like the resources for other important functions, limited. The issue is always how do we best apply the available resources so as to provide the most relevant information at the earliest possible date.

The President has the power to direct agencies to declassify documents on subjects of his choosing, although exercising that power is easier said than done. The Congress can enact laws, but legislation is an unwieldy and imperfect instrument for controlling and directing the classification process. The public theoretically has a voice in such matters, but it rarely counts, the Kennedy assassination records being one of the exceptions. What is needed is a more systematic way of assessing priorities for declassification. I note that the "Government Secrecy Act of 1997" (H.R. 1546) is also pending before the Government Reform and Oversight Committee. I would like to call the Subcommittee's attention to one element of that proposal. Section 5(c) of the bill would establish a 12-member National Declassification Advisory Committee. That Advisory Committee would, among other things, make recommendations concerning declassification priorities and activities. The idea for a permanent advisory committee originated with the 1997 report of the Commission on Protecting and Reducing Government Secrecy (the Moynihan Commission).

A broadly based advisory committee is one way to collect and blend the views of the Executive Branch, the Congress, the press, academics, historians, interest groups, and others. As currently drafted, the membership of the advisory committee would be heavily populated with academics. I might suggest other points of view be represented, including the press and public interest groups like the National Security Archive and the Federation of American Scientists. Both of these organizations have been effective advocates for openness and monitors of classification policy and practice.

The idea of a more systematic approach to setting priorities is very attractive. I want to emphasize that I am focusing on the mechanism for setting priorities. The issue of resources has to be considered separately. Government information-disclosure activities, like the Freedom of Information Act, already suffer from a shortage of resources. We have to find a way to support the declassification of documents in a way that does not undermine the disclosure of current information.

Everyone pays a price for secrecy. The Moynihan Commission, which I testified before, did a great job in highlighting the life-cycle cost for classification. In the past, no one paid attention to the cost of classification. This is one reason why we face such an enormous burden in dealing with the mountains of classified information that built up in the past. Sooner or later, we are going to have to pay the cost for declassifying most of that information. In the meantime, we are creating 10,000 secrets a day and spending more than $5 billion a year maintaining as many as 10 billion pages of secrets, 1.5 billion of them 25 years old or older.

No one questions the need for secrecy of some government information. But the need for some secrecy does not justify all secrecy. And we all pay too high a price for excessive secrecy. It deprives both the public and policy-makers of needed information, impoverishes public discourse and dialogue, reduces the sweep and scope of intelligence analysis, erodes public confidence in government at all levels, drains resources from real intelligence gathering, interferes with scientific and technological innovation and development, retards economic competitiveness, and expends billions of tax dollars each year.

Common-sense disclosure of classified material, however, ensures good governance by making officials accountable, encourages confidence in government and its leaders, enlivens public debate that engenders sound, supported policy. In other words, it fulfills the Jeffersonian principle of an informed citizenry making democracy work.

The Clinton Administration took a big step forward with the emphasis on declassification in Executive Order 12958 on Classified National Security Information. Hopefully, that will reduce the volume of classified information that the next generation will have to declassify. In the meantime, we have no choice but to set priorities and assign resources to deal with the decisions made in the past.

H.R. 2635 is a useful proposal in advancing that mandate because it makes us confront a series of important public policy questions surrounding declassification and openness in government.

Thank you for the opportunity to appear before the committee on this important matter. I would be happy to answer any questions you might have later.

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