The budget total, commonly reported at about $30 billion, is a matter of public interest since Americans have a presumptive right to know how much they are spending on intelligence activities; the Constitution requires a published accounting of "all public Money." But the intelligence budget is even more important as a barometer of secrecy policy generally: It represents the outstanding case of information that is "classified but not secret" and it exemplifies the continuing failure of both the executive branch and Congress to responsibly implement secrecy policy. Further, the FAS lawsuit provides a new test of the FOIA and the ability of the judicial system to exercise checks and balances in the national security field.
The basis for the lawsuit is contained in testimony before Congress by then-DCI John Deutch in April 1996 in which he stated that "the President is persuaded that disclosure of the annual amount appropriated for intelligence purposes will inform the public and not, in itself, harm intelligence activities." Out of courtesy to Congress-- or political gamesmanship-- the White House did not actually declassify the amount. Instead, Mr. Deutch told Congress that "the Administration proposes that you enact legislation to make public the total appropriation for intelligence...."
Subsequently, the Senate approved language last year that would declassify the budget total, but the House did not, and the total remained classified.
Still, the President's finding that disclosure "will inform the public and not, in itself, harm intelligence activities" remains in place, independent of the Congressional failure to act on it. And it clearly means that the budget total is not "properly classified" under the terms of the executive order on classification, thereby creating an opening to request the figure under the FOIA.
Significantly, the CIA conceded in response to the initial FAS appeal that the budget classification is governed solely by executive order-- it is not protected under the infinitely pliable "sources and methods" statute. As a result, the CIA appears to be in an untenable legal position.
FAS is skillfully represented in the CIA FOIA lawsuit by Kate Martin, director of the Center for National Security Studies and an expert in national security law. A copy of the FOIA complaint may be found at http://www.fas.org/sgp/foia/ciafoia.html.
CIA spokesman Mark Mansfield said he could not comment on the matter, since it involves pending litigation.
But at his recent confirmation hearing, DCI-designate George J. Tenet said that "It is time for us to better distinguish that information which really ought to be kept secret from information that ought to be made available to the American public." This unsatisfactory remark acknowledges that CIA withholds too much information from the public but stops short of explaining exactly how that situation is going to change.
Maybe a lawsuit will help.
The Act would establish a statutory framework for the classification of national security information in the belief that this would add needed rigor to future classification and declassification activities. While granting the President authority to define the scope of secrecy and the specific procedures involved, the bill states that classifiers shall weigh the benefit from disclosure against the need for secrecy, and that information shall not be classified if there is significant doubt as to whether secrecy is required.
The Act defines a ten year maximum initial classification period, unless an agency head certifies that the information in question requires protection for a longer period. Any remaining information is to be declassified no more than 30 years after classification, unless continued secrecy is determined to be essential. Agencies are to tackle the declassification of records that are already over 30 years old "as soon as is practicable." A National Declassification Center would be established "to coordinate and oversee" declassification throughout the government. All implementing procedures are to be published for public review and comment.
The impulse behind the new legislation is sound; its backers are clearly well-intentioned. There is probably nothing in the bill that would do any serious damage, and some of its provisions would help to bolster the existing requirements of the executive order. Other provisions, such as the balancing test for classification, are weakly drawn and need to be more clearly articulated. Still others may need to be added.
For all of its merits, the fact is that the Secrecy Commission (and its resulting bill) dodged the truly difficult issues in secrecy policy. Specifically, neither the Commission nor the bill have anything to say in those cases where the need for secrecy is a matter of contention, and so they implicitly reinforce the status quo.
The Commission's principal insight was that "Secrecy is a form of government regulation," which apparently came as a revelation to some. But "regulation" is not a dirty word, and the Commission's dictum fails to provide a basis for distinguishing between "good" regulation-- secrecy that serves the national interest-- and "bad" regulation-- the mindless, habitual secrecy of bureaucracies or the self- serving secrecy that seeks political advantage.
It is interesting to observe that one Commissioner, Rep. Lee Hamilton, voted last year to declassify the intelligence budget total while another Commissioner, Rep. Larry Combest, successfully led the opposition to declassification. Whose position is "right"? Which policy should be adopted?
The answers to such questions cannot be found in the Commission Report, which offers no principles or criteria for deciding classification issues that are in dispute, as all of the most interesting cases are. Nor does the pending legislation establish any new procedural framework for resolving disagreements over classification.
The new bill would legislate a skeletal framework for the scope and duration of classification (with the inevitable allowance for exceptions), but leaves agencies' authority to classify undiluted and unchecked. In one obvious gap, the bill includes no provision for oversight beyond annual reports to Congress. And although the requirement to "certify" the need for continuing secrecy beyond the ten or thirty year periods will create somewhat of a burden for agencies, they will have unlimited discretion to do so.
In short, the Commission insisted on treating the secrecy system as a bureaucracy-- which is the truth, but not the whole truth-- and offered what is essentially a bureaucratic response.
As legislators, the bill's authors naturally have a high opinion of the value of legislation. Thus, the bill finds that:
If the new bill was passed into law, we would not just have a statutory classification system-- we would have two statutory classification systems, one for "national security information" and one for "restricted data" under the Atomic Energy Act. This is poor legislative hygiene and would add needless complexity to what is already a difficult administrative situation.
For the most part, the Government Secrecy Act simply ratifies the framework already established by President Clinton's executive order 12958 and would enshrine it in law. There is nothing wrong with that, though it hardly constitutes a revolution in secrecy policy.
One of the bill's true innovations is the creation of the National Declassification Center to "coordinate" declassification policies. This could have been a profoundly good idea. But as formulated by the Commission and in the new legislation, it falls far short of its potential because it largely consolidates existing practice instead of reforming it.
"Unless the Declassification Center has some independent authority to declassify, it's just not worth doing," one senior security policy official told S&GB.
In other words, one key to expediting the declassification of old documents is to extend the authority to declassify beyond the originating agency.
Agencies naturally take a narrow, proprietary attitude towards their own records, and will always be slow to release them. Far more can be accomplished, consistent with national security requirements, by allowing "outsiders" (i.e., security cleared employees of other agencies) to process records for declassification and, when necessary, to overrule the originating agencies. The effectiveness of this approach has been repeatedly validated, for example, by the Interagency Security Classification Appeals Panel and the Assassination Records Review Board, which have authorized the release of many documents that the agencies would not have released on their own. The lesson should be clear.
If this principle could be incorporated into the bill and the proposed Center could be endowed with independent declassification authority, it would be a genuine breakthrough. Otherwise, it is hard to see the point.
Overall, the bill represents a welcome expression of interest by Congress in secrecy. Unlike the most recent attempt to legislate a statutory secrecy policy in 1994, the new bill has bipartisan sponsorship which should ease its progress. Conversely, however, the bipartisan character of the bill could impede the necessary efforts to strengthen its provisions, since changes that more directly challenge the status quo might lead to defections among the sponsors.
But a key Senate staffer invited constructive criticism
of the bill. "The deliberative process is just starting," he
"There's a breakdown in [security] discipline that is quite fundamental and poses an enormous problem for us," said DCI-designate George Tenet on May 6.
In a world class leak reported the next day, the Washington Post revealed that a senior U.S. official may have passed sensitive information to the Israeli government. The story was based on the leaked transcript of a telephone conversation-- intercepted by the National Security Agency-- between the Israeli embassy in Washington and an official in Tel Aviv.
Israeli officials plausibly denied the allegation, arguing that it was based on a misunderstanding. "They have ears, but do not hear," columnist Amir Oren wrote about the NSA (Haaretz, 5/9/97).
But while Israel may or may not be spying on the U.S., it is clear that the U.S. is spying on Israel. Not only that, but the leaked story seemed to indicate that the NSA had successfully penetrated Israeli communications security (although some reports said the conversation took place on an open line). The revelation reportedly prompted a "mole hunt" within Israel to determine if an Israeli spy had been recruited by the U.S. to disclose the Israeli encryption system (Maariv, 5/9/97). Presumably, the Israeli embassy and every other foreign embassy in Washington must have immediately taken steps to upgrade their security.
This is what "protection of sources and methods"-- that much abused phrase-- is supposed to prevent. Although it is hard to say whether this episode caused "damage to the national security of the United States," it clearly damaged U.S. intelligence collection abilities. And it highlights once again the corruption of government secrecy policy.
"We file crimes reports with the attorney general every week about leaks," noted Mr. Tenet, "and we're never successful in litigating one."
"Things get leaked all the time, every day," said State Department spokesman Nicholas Burns on May 14. "We understand that. We try to deal with it as best we can. Sometimes the leaks are very, very serious and sometimes they're not."
Which is to say, some things should be classified and some should not. Unless and until the government is able to better distinguish between the two, leaks will continue to play an important role in secrecy "reform."
Secrecy & Government Bulletin is written by Steven Aftergood and published by the Federation of American Scientists.
The FAS Project on Government Secrecy is supported by grants from the Rockefeller Family Fund, the CS Fund, the New York Times Foundation, the Greenville Foundation, the Stewart R. Mott Charitable Trust, and the John S. and James L. Knight Foundation.