Secrecy & Government Bulletin
Issue Number 82
- The Lessons of Intelligence Budget Secrecy
- The Bare Bones of CIA's Intransigence
- Automatic Declassification Deadline Extended
The Lessons of Intelligence Budget SecrecyWould you believe that at the dawn of the 21st century, the United States is in such a precarious position that the mere disclosure of the total amount spent on intelligence in 1999 "could reasonably be expected to cause damage to national security?"
That improbable claim is the solemn assessment of the nation's top intelligence official, Director of Central Intelligence George J. Tenet. On the strength of Tenet's sworn declaration, federal judge Thomas F. Hogan issued a November 12 decision dismissing a Freedom of Information Act lawsuit brought by the Federation of American Scientists seeking declassification of the 1999 budget figure.
No great secret was at stake here. It has been widely reported that Congress lavished billions of extra dollars on the intelligence community in 1999, bringing the total to around $29 billion.
In fact, the classification of the budget total "reveals" more about current secrecy and intelligence policies than declassification ever could. In particular, it illustrates how far secrecy has exceeded any threat-driven justification, and how difficult it is to effect even the simplest reforms of the cold war intelligence bureaucracy.
Some of the lessons of intelligence budget secrecy are as follows:
In classification policy, the formula "damage to national security" cannot be taken literally. Mr. Tenet was obliged to say that he foresaw damage to national security in order to legally justify his decision to withhold the 1999 budget total. But in the real world, it is obviously not possible for disclosure of a single budget number to damage the national security of the world's predominant military and economic power.
Although Mr. Tenet won the day, his victory came with some loss of credibility for his agency. "It simply cannot be that the same figures can sensibly be unclassified one year and classified the next," the Washington Post editorialized on November 29, recalling that the budget total had been declassified in 1997 and 1998. "For the CIA to claim they can is to invite public doubt about its other assessments of what does and does not need to be kept secret."
Furthermore, since Tenet's assessment is framed broadly as an estimate of potential damage to US national security, his position also invites skepticism about CIA credibility in other contexts: Does CIA warn that U.S. national security is threatened by cyber-terrorists or North Korean missiles? Well, the Agency says the same thing about disclosure of the 1999 intelligence budget total.
Slippery in the Uphill Direction
The "slippery slope" argument is unfounded. Unlike DCI Tenet, most cold war opponents of budget disclosure did not claim that release of the single figure could damage national security. Instead, they warned of a "slippery slope" by which disclosure of the aggregate intelligence budget would inevitably lead to demands for further disclosures that the government would somehow be unable to resist, and that eventually truly sensitive intelligence information would be placed at risk.
"With each successive year, this [budget disclosure] process -- once started -- would intensify," wrote the late George Carver, a former senior CIA official.
"Soon, one bottom-line total intelligence budget figure, alone, would not suffice. Inexorably, over the course of successive years, that figure would have to be broken out, publicly, in ever greater detail.... Once started, this process might be slowed from time to time, with great difficulty; but it could never be arrested -- let alone reversed -- and it would probably accelerate with the passage of time. Soon, a point would be reached at which so many of the details of the total intelligence budget would be public knowledge that attention would inevitably be drawn to those portions still kept secret -- and attacks would promptly be mounted to open up those compartments as well."
This analysis was incorrect.
Following disclosure of the total budget appropriation in 1997 and 1998, FAS attempted to push the declassification process at least one step down the presumed slippery slope by seeking disclosure of the total budget request. This would have been the next logical category for release, since disclosure of both the appropriation and the request would be required if a single budget line item for intelligence spending were to be created. Annual disclosure of the budget request had also been unanimously endorsed by a 1996 bipartisan commission established by Congress.
Unfortunately, this effort failed and the total budget request has remained classified. It turns out that the slippery slope was merely a polemical device intended to discourage any disclosure at all.
In fact, in George Tenet's CIA, the declassification slope became "slippery" in the uphill direction, and the aggregate budget appropriation information that had been disclosed in 1997 and 1998 was withheld in 1999.
There is no independent review of CIA classification decisions. When George Tenet swears under oath that acknowledging the $29 billion intelligence budget total would damage the security of the United States and jeopardize intelligence sources and methods, there is no government official who is authorized and willing to stand up and explain that this is nonsense.
To a large extent, the current Congress has abdicated its role in this debate, or rather it has tended to reinforce CIA's indiscriminate secrecy policies. It may be no coincidence that the leadership and staffs of the CIA and the Congressional intelligence committees have become interpenetrated to an extraordinary degree. To begin with, Tenet is a former committee staff director, and House Intelligence Committee chairman Porter Goss is a former CIA officer. Budget secrecy -- which also limits congressional accountability -- seems to serve the perceived self-interests of the committees as well as the CIA.
Judicial review is likewise hopeless under current circumstances. At oral arguments in federal court on November 1, Kate Martin of the Center for National Security Studies presented the case in favor of budget disclosure with superb clarity and precision. Judge Hogan appeared to grasp the essence of the issue, and to see that CIA was overreaching. "How am I to know if this [supposed damage due to budget disclosure] is a realistic concern?" he asked the bewildered Justice Department attorneys, who expected him to simply defer to the DCI's sworn statement. In a badly written and weakly argued decision, he did just that. In fact, no federal judge has ever compelled the CIA to release information it wished to withhold. Which is to say, CIA's classification authority is effectively unchecked.
The Interagency Security Classification Appeals Panel (ISCAP), an executive branch body which has boldly overturned CIA classification actions on occasion, is a partial exception to this rule. But lately, confronted by the question of intelligence budget disclosure, the ISCAP embarrassed itself and revealed the limits of its independence. Last month, it endorsed CIA's absurd contention that release of the intelligence budget total from 1988 could cause damage to national security. The Panel did not explain how, given that the 1997 and 1998 budget totals are unclassified, it determined that the number from a decade earlier could still be sensitive.
Since DCI Tenet's claims concerning damage to national security cannot be taken at face value, his insistence on budget secrecy demands an alternate explanation.
Congressional opposition undoubtedly explains much. As noted above, Tenet faces a Congress that, based on its own political calculation, has resisted budget disclosure. If the "overseers" oppose disclosure, it is hard to think of a reason why the "overseen" would volunteer it. But this is evidently not a sufficient explanation, since Tenet did declassify the 1997 budget total in response to a prior FAS lawsuit even after majorities in both houses of Congress had voted to oppose declassification.
Budget secrecy also endures because it symbolizes and manifests the mystique of intelligence. Any encroachment on that mystique meets resistance within the intelligence bureaucracy.
For this reason, opposing budget disclosure may serve DCI Tenet's own interests. Unlike many of his predecessors, Tenet comes from outside of the intelligence community. As a result, he has had to try a little harder just to overcome the tendency toward tissue rejection at CIA. To win acceptance, he has become a forceful champion of his agency in public forums; he has successfully cultivated favorable coverage of his own performance in influential media outlets; and he has expanded recruitment while propounding a heroic mythology of intelligence. As a former staff director of the Senate Select Committee on Intelligence, Tenet significantly placed in his personal dining room at CIA a portrait of former DCI Richard Helms, who was fined in 1977 for lying to a Senate Committee (Washington Post, 11/19/99). In the same vein, he has now demonstrated the ability to preserve a time-honored talisman of secrecy against an impudent legal challenge.
In contrast, "If Bob Gates [who was a career intelligence officer] were still DCI, the budget would be routinely declassified by now," according to one executive branch security official. Unlike Tenet, "He didn't have anything to prove."
"When Gates left as DCI, he had begun to look at these icons [i.e. traditional classification categories] in a far more analytical, less kneejerk way. In other words, there was a real chance that they would no longer be icons, just classified information to be reviewed for declassification on its informational and national security merits," the official said.
Again, however, this explanation does not fully account for the fact that Gates never declassified the budget total when he was DCI, as he had proposed at his confirmation hearing, while Tenet under pressure of litigation actually did do so on two occasions in the past.
The Bare Bones of CIA's IntransigenceCIA secrecy policies are coming under fire not just from openness advocates, as one would expect, but also from officials of other government agencies.
William Z. Slany, the respected Historian of the State Department, recently criticized CIA refusal to release certain historical documents as "unreasonable."
"What has become apparent and obvious is the Agency's unwillingness to acknowledge amounts of money, liaison relationships, and relationships with organizations, information [from over thirty years ago] that any ‘reasonable person' would believe should be declassified," Slany declared. "The process has revealed the bares bones of CIA's intransigence."
Slany's remarks were reported in the minutes of a September 1999 State Department Historical Advisory Committee meeting that were released in December.
At issue is the historical record of CIA covert actions from the early cold war era. A so-called High Level Panel (HLP), composed of representatives of the National Security Council, State, and CIA, had been established to coordinate the release of documents on such covert actions for publication in the official Foreign Relations of the United States (FRUS) series.
"The CIA had initially argued that it would release documents provided the NSC was willing to acknowledge the fact of the covert action. However, now that the HLP has agreed to acknowledge the covert action, the CIA keeps coming up with reasons not to release the information (amounts of money, liaison relationships, activities in-country, etc.)," according to the new minutes.
The first FRUS volume to emerge from the High Level Panel process, concerning U.S. policy towards Iran in the mid-1960s, was published in November 1999. It contains several tortuously declassified documents describing or mentioning U.S. intelligence collection facilities operating in Iran at that time.
Automatic Declassification Deadline ExtendedFacing resistance to declassification from Congress and from recalcitrant agencies, President Clinton issued executive order 13142 on November 19 that extends the deadline for automatic declassification of 25 year old documents by 18 to 36 months.
Under the 1995 executive order 12958, most documents that were 25 years old or more were supposed to be declassified by April 2000. That looming deadline has now been extended until October 2001 in most cases and until April 2003 for records that are replete with intelligence sources and methods or that require multi-agency review.
Significantly, the new executive order preserves the concept of "automatic declassification," which entails minimal or no review. This highly cost-effective and productive approach had been all but outlawed in legislation sponsored by Senator Jon Kyl and, more recently, by Senate Majority Leader Lott.
Furthermore, despite the new extensions, the 25 year automatic declassification clock keeps on ticking. Thus, according to the Information Security Oversight Office, the new October 2001 deadline will apply to records created up to October 1976, and the new April 2003 deadline will apply to records created up to April 1978, and so forth into the future.
While Republican leaders have vigorously attempted to curtail declassification (see the Jan/Feb 2000 FAS Public Interest Report), conservative grass roots groups are becoming increasingly outspoken in favor of an aggressive declassification program.
"The American Legion is concerned about the [declassification] issue in general, and particularly with respect to POW/MIA accounting," wrote Legion National Commander Al Lance in a letter to the President last November. The American Legion is a socially and politically conservative organization of nearly 3 million U.S. military veterans. In his letter, Mr. Lance went on to criticize the new executive order.
"An extension of the deadline for declassification is unacceptable to The American Legion," he wrote. "Federal agencies and their employees are paid to implement and enforce the law. It is not the fault of the public if some government agencies cannot, or will not, carry out their responsibilities. We would recommend that an outside agency, such as the Department of Justice, provide oversight and follow-up on the declassification process and enforce the timeline originally established by E.O. 12958." No response had been received from the White House as of mid-January, a Legion spokesman told S&GB.
Secrecy and 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 John S. and James L. Knight Foundation, the Rockefeller Family Fund, and the HKH Foundation.