2001 FOI update: Government secrecy

Friday, March 16, 2001

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.

Openness at 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 — a felony.

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 and others.

  • 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  • A healthy 127 million pages of historical documents were declassified (though not necessarily available to the public), according to the latest statistics of the Information Security Oversight Office.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 Bush administration
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.

However, one 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the October 2001 deadline established by the Clinton administration for “automatic declassification” of most 25-year historical documents, “whether or not they have been reviewed.”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.

Threat inflation
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.

Nothing much 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 “vital accountability.”

Nuclear seapons secrecy
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.

But incredibly, 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.

CIA 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.

Publication 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.

Intelligence budget follies
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.

Steven Aftergood is director of the Project on Government Secrecy for the Federation of American Scientists.