FOI Day keynote address: Openness efforts in Clinton administration

Friday, March 16, 2001

Thank you for those kind words and I want to thank the American Library Association for this profound honor.

First, I should say that I never imagined that I’d be inducted into any hall of fame — no less one that espouses principles so important to me and to the liberty of all Americans. Though frankly, as a kid, if you had mentioned “hall of fame,” I pictured Cooperstown, Ernie Banks and Mickey Mantle — not having my picture between a burning Ford Pinto gas tank and an exploding Firestone 500 tire.

I should also admit I was a little stumped when I first received the good news about the James Madison Award — especially this year, the 250th anniversary of our Founding Father’s birth. I couldn’t help but think, Why me? After all, James Madison grew up the son of a wealthy landowner in Virginia and studied the Scottish Enlightenment at Princeton, the jewel of the Ivy League. Not exactly my pedigree.

But after a little digging, I think I finally discovered the connection. It turns out that James Madison authored Federalist Paper Number 74 — the constitutional argument for the presidential power of … the pardon. As Madison argued, “Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.” Apparently Dan Burton and Arlen Specter don’t agree. Instead, for many of us in the Clinton administration, these last few weeks feel more like Madison’s description that “political institutions … are equal to the severest trials of war.” Now that was perceptive.

Kidding aside, this award, the American Library Association and The Freedom Forum all embody a fundamental tenet that has been a guiding principle during my three decades in public service: the protection of openness in government. Many of you have spent your careers preserving that ideal. James Madison dedicated his political career to building a Constitution, a Bill of Rights, and a government that protects the civil liberties of its citizens. Madison called the “diffusion of information … the best aliment to true liberty” and (said) that “a popular government without popular information or the means of acquiring it is but a prologue to farce or tragedy or perhaps both.”

We often take those words of Madison for granted — but they are worth repeating and remembering every time a new leader takes office.

Today, we celebrate the 250th anniversary of James Madison’s birth. And of course, we celebrate the 35th Anniversary of the Freedom of Information Act.

As we celebrate, we should not forget that passage of the Freedom of Information Act was a long struggle. It began during the height of McCarthyism.

In 1952, when others ran for cover, the American Society of Newspaper Editors asked Professor Harold Cross to dig deep into our nation’s history and develop the legal and policy case that became the foundation of the Freedom of Information Act. His work, published in 1953,
can be summarized in one sentence, in his own words, “The right to speak and the right to print, without the right to know, are pretty empty.”

But it took more than analysis to enact the FOIA; it took the courageous leadership of legislators like the legendary Congressman John Moss of California and Senator Ed Long of Missouri. They, along with their colleagues, were confronted with a provision of the Administrative Procedures Act that had been passed in 1946 to facilitate disclosure of public records, but had been distorted through Cold War interpretation to be one of the principal excuses for expanding government secrecy.

The authors of the FOIA knocked down those barriers to openness and found a balance that enshrined Professor Cross’s right to know while addressing the equally compelling need to protect national security and personal privacy.

Those authors working with President Johnson put openness at the heart of our nation — giving creed to the revolutionary principle that a government’s legitimacy depends on the trust of the governed.

Here’s how Attorney General Ramsey Clark summarized the results:

  • That disclosure be the general rule, not the exception.
  • That the burden be on the government to justify the withholding of a document, not on the person who requests it.
  • That individuals improperly denied access to documents have a right to seek injunctive
    relief in the courts.

How simple; how profound.

Strengthened by the 1974 amendments, which as you all know were enacted through an override of a presidential veto, the Freedom of Information Act now stands out as an underpinning of a democracy built, in Madison’s words, by “a people who mean to be their own governors.”

That underpinning of our democracy is today so essential that my former boss and good friend, Senator Patrick Leahy, is fond of saying that it is hard to remember that the Freedom of Information Act is just a statute and not part of the Constitution.

The successes of the Freedom of Information Act can be counted in the foreign policy mistakes uncovered so as not to be repeated, the unsafe consumer products recalled and the potentially wasted federal dollars that have been saved. But perhaps the greatest success can be seen in
the fact that other democracies, newer democracies around the world, are building their laws, their governments, and their societies around the principle of the public’s right to know. From Hungary, to the Czech Republic, to South Africa, you see that principle enshrined into law by new democracies emerging from days of tyranny, terror and secrecy.

I point to this history because it guided the work of President Clinton, my own work in the White House, and I like to think, with only a few exceptions, the work of the entire Clinton administration.

I believe we did have success and a record to be proud of. I think a few examples are worth noting.

In 1993, reversing the policies of the past two administrations, we became the first administration in history to commit itself to retaining its electronic record history, including e-mail records.

In 1994, President Clinton issued an executive order that declassified in bulk approximately 45 million pages of World War II and Vietnam War era documents — nearly 15 percent of the National Archives’ classified materials.

In 1995, because of the leadership of Vice President Gore, for the first time the overhead imageries from the Corona, Argon and Lanyard intelligence satellite missions were declassified — historic documents that will be of great value to scholars, as well as to the natural resource and environmental communities.

Three years later, again under the vice president’s leadership, undersea military data originally gathered to track enemy submarines was declassified and released to help researchers track marine mammals, predict deadly storms, detect illegal fishing and gain new insights into the complexities of climate change.

In 1996, NSA released extensive information about the Venona project, ending a 50-year silence on one of cryptography’s most successful efforts, and providing valuable information about Soviet attempts to infiltrate the U.S. government. That same year, NSA initiated Project Open Door, releasing over 1 million pages of historic crypto-logic documents that provide insight into some of the century’s most compelling stories.

That year, we also worked with Congress, and in particular with Senator Leahy, to enact the Electronic Freedom of Information Act. Since President Clinton signed the bill into law, literally millions of pages of public information with widespread public interest have been made
available on the Internet.

Over the past several years, President Clinton ordered the release of tens of thousands of pages of 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, which helped encourage democratization and the rule of law.

The administration supported the work of the Kennedy Assassination Records Review Board, which reviewed and voted to release over 27,0000 previously redacted assassination records, and obtained agencies’ consent to release an additional 33,000-plus assassination records. I must say much has been written during the past few months about the decisions the president made on Jan. 19. Perhaps it’s worth noting that he also, on that date, decided the last two appeals of the Assassination Review Board, ordering the release of previously undisclosed records of the Presidents Foreign Intelligence Review Board and Secret Service.

But of the Clinton administration’s accomplishments, two truly stand out. The first is Executive Order 12958, which set tough standards for classifying documents and led to an unprecedented effort to declassify millions of pages from our nation’s diplomatic and national security history.

Before President Clinton signed the executive order, a tiny minority of classified documents — only 5 percent — had a fixed declassification date. Since the signing of the executive order, 10 times that number are now marked for declassification in 10 years or less.

Most significantly, during the five years that the Executive Order was in place, its policies resulted in the declassification of 800 million pages of historically valuable records, with the prospect of many hundreds of millions more pages to be declassified in the next few years. To give you a bit of a comparison, in the previous 15 years, the government had declassified a total of 188 million pages. We departed the White House knowing that the extent to which we opened up our government’s historically valuable records is a singular accomplishment.

For many future generations, our history books will rely on the information contained in these declassified documents. Scholars, historians and everyday researchers from around the world, not just the United States, will explore the past to help guide the future.

I would also note that it is one thing to establish a policy that declares that millions of documents could and should be declassified. It is quite another thing to bring that policy to fruition. To those of you who have been at the forefront of the declassification effort, who have sampled files and reviewed documents page-by-page, line-by-line, word-by-word, I offer the deep and sincere thanks of President Clinton, and, I daresay, of the American people. We are in your debt. I urge your continued commitment as you serve this new administration.

The second great accomplishment, of course, is not something the president achieved, but something he stopped. On Nov. 4, 2000, he vetoed the 2001 Intelligence Authorization Act, which contained the so-called Official Secrets Act provision. That provision would have made any “unauthorized” disclosure of classified information a felony.

I should start by saying that it is beyond dispute that some information must be closely held to protect national security and to engage in effective diplomacy. And often our interest in protecting the method by which information was obtained is even greater than our interest in protecting its content. For example, when disclosures of classified information mention satellite photos, other nations often take heed and conceal their activities.

It is also beyond dispute that unauthorized disclosures can be extraordinarily harmful to United States national security interests and that far too many such disclosures occur. They damage our intelligence relationships abroad, compromise intelligence gathering, jeopardize lives, and increase the threat of terrorism. Every administration is forced to contend with the terrible consequences of national security leaks, and ours was certainly no exception.

The president understood the gravity of the problem that was being addressed by that provision, but he also understood that it was his obligation to protect the rights of citizens to receive information necessary for democracy to work. President Clinton believed that had he signed that provision into law, it would have a chilling effect on legitimate activities ranging from discouraging government officials from engaging in appropriate public discussion to stopping former government officials from teaching, writing or engaging in any activity aimed at public understanding of complex issues for fear of getting snared in the act’s broad reach.

The bill, in his view, simply did not achieve the proper balance between protecting secrets and protecting legitimate expression in a society built on the consent of the governed.

And so, just a few days before the presidential election, he rejected the advice of most of the security establishment, with the notable exception of Sandy Berger, and he vetoed the bill.

He understood the best way to encourage respect for our most important secrets among administration officials and government employees, among members of Congress and their staff, among members of the press, among the American people, is to set clear standards, demand through administrative enforcement that they be respected, and perhaps, most importantly, to return secrecy to a limited but necessary role, ultimately reducing the number of secrets overall. That is the fundamental conclusion reached by the Commission on Protecting and Reducing Government Secrecy chaired by Senator Moynihan. And that’s the principle that drove President Clinton’s commitment to protect secrets critical to our national security, while promoting greater openness in government.

I have been talking about the past eight years. I want to spend just a couple of moments reflecting on the next few years.

When Madison crafted the Bill of Rights nearly two centuries ago, he did so in the wake of the great American Revolution. Many of the challenges Madison — and our nation — grappled with back then are profoundly different from those we confront today. But we stand in the midst of another great revolution — the information revolution — the fundamental principles our Founders embraced remain the same.

From small towns to big cities, the Internet is bringing millions of people closer together, giving them new ways to share information and stay in touch.

Thanks to new technology, the government now has the means to be more open than ever before. For example, every federal agency now has a public Web site where citizens can learn about the policies and programs that affect their lives.

But the Internet also presents new challenges to our personal privacy and national security, and requires us to think about the need for new laws and new protections to maintain them. Because we are so interconnected, more people have easier access to the most personal of information, from bank statements to our medical records. International narcotics traffickers can communicate with each other via encrypted computer messages. Cyberpunks can destroy property by defacing homepages and maliciously manipulating private information. Hackers can break into defense computers and download sensitive military technology.

While in this new century, the Internet and other advances in technology have changed the scope and nature of the challenges we face, the balance between “popular government, popular information” and secrecy is as relevant today as it was in the 1780s. It’s critical we make sure the tools of the information revolution are used to the benefit of the American people — not to their detriment — and that the risks associated with these advances aren’t used by the
government as an excuse to limit our access to information.

As has always been the case, we must strike a balance between openness and security — a balance I believe we can reach in part by taking the following steps:

  • First, we must stay the course and continue our effort to declassify historically valuable documents. I urge the new administration not to turn back but to embrace President Clinton’s lead under Executive Order 12958 and continue to make more information accessible to more people.

    And they need to work with Congress to eliminate the unneeded and unwarranted roadblocks to implementation of the executive order that have been inserted in legislation.

    Does anyone really believe that disclosure of the fact that the U.S. deployed nuclear weapons in NATO ally countries in the early 1950s harms today’s national security? That is the only example critics can cite in their attempts to hobble the implementation of the declassification effort.

  • Second, toward the same end, I encourage the Bush administration to support the Human Rights Information Act, which would facilitate the release of classified documents regarding human rights abuses. In doing so, the United States would be a beacon to other nations, encouraging
    them to open records to their citizens, which would strengthen their democracies and hopefully prevent future human rights abuses. This is one area where we can and must be a leader.

  • Third, even as we take steps to make government more open, we must defend our national security by protecting our computer systems from unauthorized access to classified and sensitive information. In this world of electronic networks, we must construct a framework of trust and security, so that what should be private, stays private — not only classified government information, but also the medical and financial records of our citizens.To do so, it’s important to build on the efforts the Clinton administration began to protect critical infrastructure, to combat cyber-terrorism, and to increase the public-private partnerships that will help protect online commerce and communications.

    However, our effort to build trust and security online should not come at the expense of openness. Like the example of the 1946 provision in the Administrative Procedures Act that I mentioned earlier, some of the contemporary proposals appear well-meaning but, if enacted, would severely limit the freedom of information. For example, staff proposals were developed during the Clinton administration that would scale back access to information about infrastructure protection without any showing that disclosure would cause harm. Such proposals would do little to improve security, but could be used as an excuse to vastly expand secrecy and undermine FOIA. These proposals were not endorsed by our administration and they shouldn’t be embraced by the Bush administration either.

    Finally, with a new president and a new administration, we should all be aware of and take steps to prevent any efforts to use espionage and other security concerns as a blanket excuse to seal off access to government information. I can almost guarantee that legislation similar to the vetoed Intelligence Authorization Act will resurface — but this time under the guise of addressing the Robert Hanssen case. Those in the intelligence community will offer it as the cure-all for our security problems at the FBI surfaced by the Hanssen case. But in truth, it will be the red herring of the year. It will do little to solve our espionage problems, but will go a long way in limiting openness in government and our access to information.

    In the Pentagon Papers case, Justice Stewart wrote, “the only effective restraint upon executive policy in the areas of national defense and international affairs may lie in an enlightened citizenry … an informed and critical public opinion … alone can … protect the values of democratic government.” Finding the right balance between confidentiality and an “informed public opinion” is certainly more difficult than a policy of absolute secrecy or one of unconditional disclosure. But that’s the challenge our nation has struggled with for a generation now; it’s the one James Madison articulated more than two centuries ago; and it’s one that those of you in this room will continue to confront in the future. In the months ahead, it’s more important than ever that we work to maintain that critical balance.

    Thank you again for this extraordinary honor, and for affording me the opportunity to speak with you today.