Issue Number 61
"We have a problem here," said State Department spokesman Nicholas Burns. "We have somebody inside the U.S. Government who has access to classified information who is passing it on to a certain reporter-- Bill Gertz at the Washington Times. There's been a steady stream of these leaks to him."
Truly. Every few days there is another story by Bill Gertz quoting from classified State Department, Defense Department, or CIA documents, making a mockery of government classification policies and access restrictions.
Lately, Defense Secretary William Perry has called on the Federal Bureau of Investigation to try to identify the source of the leaks. (Associated Press, 8/10/96). In a July 31 letter, Secretary Perry said that "one or more DoD employees are deliberately and illegally releasing" classified intelligence information. He directed DoD officials to ensure that proper procedures for the control of classified documents are followed, and that distribution of classified information is reduced.
Aside from the contents of the disclosures themselves, which range from fascinating to trivial, there are at least a couple of lessons that emerge from the burst of leaks to the Washington Times over the last year or two:
The enunciation of this principle not only precludes efforts at prior restraint-- such as the government's attempt to block publication of the Pentagon Papers or the Progressive article on the H Bomb-- but it also, in effect, transfers disclosure authority to anyone who is skillful, lucky or devious enough to get his hands on classified documents. (Narrow statutory prohibitions against publishing certain kinds of classified atomic energy information, communications intelligence, cryptographic information, and identities of covert intelligence personnel do, however, remain in effect.)
But at a time when a majority of Americans believes that the government keeps too much information secret, the mere act of publishing such information is viewed as neither dangerous nor dishonorable. (A majority of the public does support the classification of advanced military technologies and similar sensitive information, according to a Defense Department survey, but the Washington Times disclosures do not appear to fall into this category.)
If the recent leaks had been consistently directed to another establishment newspaper such as the Washington Post or the New York Times, then conservative publications and the Washington Times itself might well have editorialized against them, challenging the patriotism of the reporter and the integrity of his editors. Rep. Bob Dornan might have made rude gestures to an empty chamber on C-SPAN, and Republicans on the House Intelligence Committee might have called for a special prosecutor to investigate subversives in the Administration and the media.
But with "no enemies on the Right," the Washington Times is not subject to any such criticism. To the contrary, the Times has recently touted its "flood of disclosures of secret arms and technology deals" in its own promotional literature (8/9/96, p. A5).
Because classification policy is so out of sync with genuine national security requirements and with public expectations, there is a temptation to welcome any and all leaks as a necessary corrective, and a satisfying rebuke to retrograde security policies.
But once sporadic disclosures become a steady, unstoppable flood of leaks, then other considerations arise. Selective leaking, like selective classification, can easily be exploited as an instrument of partisan politics. (The Washington Times, for example, has a particular animus against the Anti-Ballistic Missile Treaty, and has published tendentious articles on the subject citing classified documents.) An uncontrolled escalation of leaks can lead to bureaucratic nihilism, crippling the government's ability to function. And it is possible to imagine disclosures that actually would "damage national security" in a non-rhetorical fashion. For these reasons, a rigorous reform of classification policy and practice is still the preferred alternative to a leak-based information policy.
As for the pending FBI investigation, the chance that it will actually identify the leakers is considered slim, and the case is probably destined to end up as an X File. "You never can tell about leaks," said Mr. Burns at the State Department. "You never know where they're coming from. They are routinely investigated-- and I mean routinely. They're always investigated on a routine basis. Our success in finding out who is leaking documents is hit or miss."
In the meantime, he said, "We're not going to be hypnotized by leaked documents."
A copy of Secretary Perry's July 31 letter was obtained by S&GB and is available at http://www.fas.org/sgp/clinton/perry.html.
In a significant blow to the Freedom of Information Act (FOIA), a federal appeals court accepted the Clinton Administration's argument that the National Security Council is not an "agency" and is therefore exempt from the provisions of the FOIA.
The August 2 decision was delivered in the epic lawsuit Armstrong v. Executive Office of the President, which originally concerned the preservation and availability of White House email messages from the Reagan Administration, but ultimately came to revolve around the legal status of the NSC itself.
From a distance, the NSC does not appear to be an executive branch agency quite like any other, but neither is it a purely advisory group that exclusively serves the President. Rather, it is a hybrid of the two. As such, it has until now been subject to the FOIA, with all of the numerous exemptions that the FOIA allows.
The NSC itself had declared that it is an agency in 1978, and successive administrations have always agreed that the NSC had to comply with the FOIA, until the Clinton Administration made the unprecedented claim in 1993 that the NSC is not an agency at all.
In order to accept the Administration's position, the Court had to reach the incredible conclusion that the NSC exists "solely to advise and assist" the President, and that it does not perform any other function whatsoever. Developing, coordinating, implementing, and monitoring national security policies, as the NSC does, do not make it an agency, in the Court's view, because the NSC is acting "on behalf of the President." But agencies by definition are "agents," and it is hard for a non-attorney to think of any executive branch agency that is not in some sense acting "on behalf of the President."
"We must not allow the 'advise and assist' exception to swallow the FOIA rule," wrote Judge David Tatel in a dissenting opinion. "That is exactly what I fear the court has done today."
"I think the framers of the ... FOIA... would be quite surprised to learn from the court's opinion that... FOIA does not guarantee citizens access to nonsensitive NSC documents," Judge Tatel wrote.
In the wake of the Court's decision, any restoration of the Freedom of Information Act will probably have to await legislative action in a Congress that is more sympathetic to the ideals of open government.
Meanwhile, through a kind of Law of Conservation of Openness, some NSC records that were unavailable even when the NSC nominally observed the FOIA are entering the public domain through unauthorized channels. For example, draft minutes from several meetings of the Security Policy Board and the Security Policy Forum over the last year have been provided to S&GB and are now available on the FAS government secrecy website at http://www.fas.org/sgp/spb/.
Some of the most interesting fruits of the Armstrong lawsuit are presented in White House E-Mail (The New Press, New York, $14.95pb), edited with an illuminating commentary by Tom Blanton of the National Security Archive. Copies may be ordered at (800)233-4830.
The new Armstrong decision has been posted on the Internet by the Electronic Privacy Information Center at http://www.epic.org/open_gov/nsc_decision.html.
In a further assault on the Freedom of Information Act, Congress adopted new language that would exempt from disclosure all information about "the organization or any function of" the Defense Intelligence Agency (DIA), the National Reconnaissance Office (NRO), and the new National Imagery and Mapping Agency (NIMA), as well as the number of personnel employed by these agencies, and similar information.
The exemption was included in the Defense Authorization Act for Fiscal Year 1997 (Inside the Pentagon, 8/8/96, p. 17).
Under the FOIA, all properly classified information about these organizations is already exempt from disclosure. The new language would expand that exemption to include practically any information at all. And since this is a statutory exemption, the information it would conceal is not subject to judicial review.
From an information policy point of view, the Congressional action is exactly the wrong thing to do. Most experienced classification professionals recognize that there is an urgent need to limit secrecy specifically to those areas where it is clearly justified by national security requirements or other legitimate concerns such as personal privacy. This is necessary not only to reduce the volume of the swollen secrecy system, but to restore its credibility both inside and outside the government. The indiscriminate Congressional language blurs the distinction between sensitive and non-sensitive information, to the detriment of the system as a whole.
Despite the new language, detailed information on intelligence agency budgets, organization, structure, and size will continue to be available through the FAS intelligence reform homepage at http://www.fas.org/irp/agency/index.html.
Rep. Larry Combest and six other Republican members of the House Intelligence Committee filed an ethics complaint against Rep. Robert Torricelli on July 26 charging that Torricelli had violated his oath not to disclose classified information by writing an op-ed stating that Guatemalan Colonel Julio Roberto Alpirez, who was implicated in the murder of an American citizen, had been a paid CIA informant.
In an embarrassing turnaround, Mr. Combest retracted the complaint almost immediately after Mr. Torricelli responded that this information had been declassified over a year ago by the Defense Intelligence Agency (DIA). (Washington Post, 7/29/96, p. A17).
Although Col. Alpirez' relation to the CIA has been widely reported throughout the world, and strongly intimated (but not expressly stated) by the recent Intelligence Oversight Board report on Guatemala, the DIA claims that it only "declassified" press reports about Alpirez' status, and that it never intended to disclose or validate any assertion that Alpirez was a paid CIA asset.
Mr. Torricelli, unbowed, declared that "If I am presented with evidence of CIA assets involved in the murder of an American citizen in the future, I would take the same actions again."
The House Intelligence Committee has been quite diligent about ensuring the security of classified information in its possession-- which is a necessary (but not sufficient) condition for effective intelligence oversight. Sadly, however, the Committee has shown no comparable zeal with respect to some other aspects of its oversight function and, in particular, has impeded efforts to eliminate unnecessary or improper classification.
In fact, when it comes to government secrecy, Chairman Combest is more Catholic than the Pope, having led the opposition to declassification of the intelligence budget total even after the Director of Central Intelligence announced that it could safely be published.
The exchange of correspondence by Reps. Combest and Torricelli, and related materials, have been posted by the Center for International Policy at http://www.us.net/cip/cia.htm.