In sharp contrast to the House of Representatives, which has seized every opportunity to undermine secrecy reform, the Senate included provisions in several 1996 appropriations bills that would facilitate the declassification program set forth in the pending executive order 12958.
Where the House had moved to eliminate the Information Security Oversight Office (ISOO), which has been assigned a key role in implementing the new order [S&GB 51], the Senate fully funded that organization. In its report on the Treasury Appropriations Bill, the Senate Appropriations Committee said it "believes that ISOO's mission is integral to the security interests of our Nation and to ensuring to the greatest extent possible that Government decisionmaking and actions are open for public review." (Sen. Report 104-121, p. 51).
And where the House Intelligence Committee imposed drastic limits on declassification spending after the CIA submitted an inflated estimate of the costs involved [S&GB 50], the Senate held firm when the Defense Department tried the same trick.
Specifically, the Defense Department had told the Senate that it has "113 million pages falling within this category [more than 25 years old] and that it will cost approximately $215,000,000 over the future years defense plan to meet this [declassification] requirement."
But this Pentagon estimate of nearly $2 per page declassified, like the CIA's earlier estimate, is either ignorant or dishonest. The cost of declassification historically has varied from around a dollar per page for detailed review to a few hundredths of a cent per page for bulk declassification. The type of automatic declassification mandated by the executive order should cost no more than pennies per page on average or no more than a few million dollars altogether.
To its credit, the Senate Appropriations Committee (unlike the retrograde House Intelligence Committee) ignored the exaggerated cost estimate and simply instructed the Pentagon to proceed with declassification. "The Committee directs that the Department provide sufficient funding over the future years defense plan to satisfy this legal requirement." (Sen. Report 104-124, p. 185).
And though the appropriators trimmed funding for the Energy Department's nuclear safeguards and security category, which includes classification policy, the Senate emphasized the importance of complying with the new declassification regime. "The Committee directs the Department [of Energy] to take the necessary action to meet the requirements of the new declassification policies established by the Congress or the executive branch." (Sen. Rep. 104-120, p. 115).
While these and other secrecy-related legislative conflicts await resolution in House-Senate conferences, the National Archives is moving ahead smartly to implement the ambitious declassification program for 1996. In a bold August 1 letter obtained by S&GB, Assistant Archivist Michael J. Kurtz sent affected agencies lists of record groups in the Archives that have been selected for declassification in the coming year. "At the end of the year we will automatically declassify any records on the list that have not been surveyed by us or reviewed by agency personnel," he wrote.
President Clinton's Executive Order 12968, which establishes new procedures for granting security clearances, is eliciting fear and loathing from defense industry officials. The order, signed August 2, appeared in the Federal Register on August 7 (pp. 40245- 54).
Industry officials are particularly concerned about new financial disclosure provisions that require employees holding high clearances to file detailed financial reports. (No one objects to a more sensible requirement to allow access to credit and other financial records when grounds for an investigation exist.) Contractors say the mandatory disclosure requirement-- which has been termed "Aldrich Ames' revenge"-- will increase costs, violate personal privacy, and make it difficult to recruit "top talent."
"The burdensomeness of completing one of the more detailed disclosure forms we have seen, and the very private nature of such information... would have an adverse impact on the willingness of contractor personnel to be cleared at special access levels," senior industry officials wrote to National Security Adviser Anthony Lake in June. Their letter was obtained by and published in Inside the Pentagon (Inside Washington Publs, Arlington, VA), which was the only publication to provide substantive reporting on this divisive issue.
"I think the hysteria over the Ames case overtook logic," industry security official Ron Wade told Inside the Pentagon (8/10/95) referring to the new disclosure requirement. "Sounds like we've created a bureaucratic nightmare with no way out."
Other important provisions of the new order dictate that federal employees whose clearances are denied or revoked will be granted increased due process rights (although less than employee unions and advocates had urged). And agencies are instructed to reciprocally accept the clearances granted by other agencies (although based on experience insiders expect this instruction to be widely violated).
For some reason, the new order was spun by the White House as a change in policy towards homosexuals, and was dutifully reported as such by the national media (e.g. "Clinton Ends Ban on Security Clearance for Gay Workers," New York Times, 8/5/95; "Clinton Overhauls Rules, Allows Gays Top Security Clearance," Washington Post).
In reality, the government has not considered sexual orientation to be a security issue for years. The General Accounting Office reported earlier this year that all of the agencies it investigated said homosexuality was not a criterion in the clearance process and that most agencies already had written procedures prohibiting denial of clearance on the basis of sexual orientation alone. (Report No. GAO/NSIAD-95-21, available from the GAO at 202-512-6000.)
The secret Foreign Intelligence Surveillance Court approved 576 government applications for domestic electronic surveillance of suspected foreign agents last year under the Foreign Intelligence Surveillance Act (FISA) of 1978, up from 509 approvals in 1993, according to annual reports obtained by S&GB from the Justice Department under the Freedom of Information Act.
The integrity of the little-known FIS Court and its utility as an oversight body have been called into question because of the Court's failure to ever deny a single application for electronic surveillance. (The Court has approved a total of 8,130 surveillance actions between 1979 and 1994.)
Government officials say the Court's 100% approval rate is due to careful pre-screening of applications in the executive branch, which they say eliminates the more questionable cases. "Applications and proposed applications are frequently kicked back," said Deputy Attorney General Jamie S. Gorelick. And in fact, Justice Department officials have been criticized recently by some in the intelligence community for refusing to forward certain proposed surveillance applications to the FIS Court. (Washington Times, 5/11/95, p. A4).
Nevertheless, Kenneth C. Bass III, a former Justice Department official who implemented the FISA in the late 1970s, said "I do not think it serves the national interest for every application that has ever been presented to that court to have been approved by that court. I think some turndowns are in the national interest every once in a while. We have not had any [rejections].... That creates an aura of suspicion and an aura of anxiety about the legitimacy of the court that is not well- founded."
At a Congressional hearing last year, former House Intelligence Committee Chairman Dan Glickman said that "In the hands of an oppressive government this [FIS Court] could be an extraordinary tool if national security is not very well defined or if people don't have a basically honest view of what constitutes national security." Mr. Glickman recommended that additional protections be incorporated in the law. ("Amending the Foreign Intelligence Surveillance Act," House Intel Comm, 7/14/94, p. 48).
Mr. Bass offered an impressive proposal to establish an independent advocate for the target who could make the case against approving surveillance, thereby enriching the record before the Court and reducing the likelihood that the process would be abused.
No such enhanced protections were adopted. Instead, in the wake of the Aldrich Ames case, Congress expanded the scope of FISA to include, for the first time, physical searches as well as electronic surveillance, notwithstanding a cogent argument by Kate Martin of the Center for National Security Studies that the move was unconstitutional. The President implemented the revised law in executive order 12949 last February.
The continuing controversy over the FIS Court has recently been reported in Legal Times (11/7/94) and Covert Action Quarterly (Summer 1995).
The following documents obtained by S&GB are available by mail for 10 cents per page or as indicated.
* "Adjudicative Guidelines for Determining Eligibility for Access to Classified Information," U.S. Security Policy Board (SPB), 6/9/95, 20 pp., available at the FAS Secrecy homepage at http://www.fas.org/sgp/.
This document defines new proposed criteria for evaluating an employee's application for a security clearance including: allegiance to the United States, foreign influence, sexual behavior, financial considerations, alcohol consumption, personality disorders, and so forth. One disturbing criterion that "may be disqualifying" is "any service... with any foreign, domestic, or international organization... engaged in analysis, discussion, or publication of material on intelligence, defense, foreign affairs, or protected technology." Does this mean that members of the Federation of American Scientists, the Council on Foreign Relations, or Greenpeace will henceforth be disqualified from holding security clearances? "I don't think that is the case at all," said SPB staff director Peter Saderholm. Otherwise, he said, "a lot of us would lose our jobs."
* "A number of foreign countries pose various levels and types of threats to US economic and technological information," according to the first White House Annual Report to Congress on Foreign Economic Collection and Industrial Espionage (July 1995, 20 pp., available at the FAS Secrecy homepage). U.S. adversaries as well as allies are said to conduct such espionage as part of "a concerted intelligence assault on the United States." The Report describes the various agencies that are attempting to deal with the industrial espionage threat, the options for improving counterintelligence in this area and, most interestingly, the various types of licit and illicit collection methods employed by foreign spies. It "does not address the concept of the US Government offensively collecting foreign proprietary information and providing it to US firms, which is against US policy," the White House wrote.
* Efforts to enhance U.S. competitiveness in aeronautics are impeded by the classification of some key technologies, according to a Pentagon report on "Future Directions in Military Aeronautics" (March 1995, 49 pages). "Many of the highly classified projects are the technology drivers and it is precisely this information which needs to be accessed in order to come up with new ideas and products for the marketplace," the report says (p. 24).
* Two new reports address DOE secrecy policy. "Official Use Only: Ending the Culture of Secrecy in the U.S. Nuclear Weapons Complex," is written by Peter Gray of the Military Production Network, an alliance of citizens groups. The report recounts the environmental, financial and political damage done by excessive secrecy in the nuclear arena and offers several proposals for improved oversight and accountability. Copies may be purchased for $2 from Tides/MPN, 1914 No. 34th Street, Seattle, WA 98103. "A Review of the Department of Energy Classification Policy and Practice" was prepared by a committee of the National Academy of Sciences, the nation's most prestigious advisory body. The Review endorses much of Secretary O'Leary's openness initiative, but notes that increasing openness is a daunting task requiring changes in classification principles and procedures. The report may be purchased for $29 from the National Academy Press at (800)624-6242.
* The General Accounting Office performed a search for government records concerning a 1947 crash of a "flying disc" near Roswell, New Mexico, an incident which continues to catalyze popular interest in UFOs. In its new report (GAO/NSIAD-95-187) the GAO says it located some records, but determined that others had been destroyed. Presidential Decision Directive 9 on "Alien Smuggling" has recently been declassified by the NSC (18 June 1993, 4 pages) but it is silent on the extraterrestrial problem.
For more information, contact Steven Aftergood at <[email protected]>.