‘We are creating 10,000 secrets a day’

Monday, May 11, 1998


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for the government to continue to rely on outdated national security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.