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September 24, 1998

The Honorable Lee Hamilton
Ranking Democratic Member
Committee on International Relations
House of Representatives
Washington, D.C. 20515

Dear Representative Hamilton:

As three public-interest organizations that have collectively spent more than 50 years battling excessive government secrecy imposed in the name of national security, we write to applaud S. 712, the Government Secrecy Reform Act of 1998, as a truly important and unprecedented step towards reforming the Cold War secrecy system.

The bill includes the critical ingredient for any real reform, namely the public-interest balancing test and judicial review under the Freedom of Information Act applying that test. The public-interest balancing test -- whereby classification standards must incorporate a weighing of the public interest in knowing the information against the harm to the national security from disclosure -- was one of the key recommendations of the Commission on Protecting and Reducing Government Secrecy in 1997. And the experience of the past 20 years confirms that Congress was correct in 1974, when it recognized that an essential element for an effective Freedom of Information Act is judicial review of whether classification standards are being properly applied when government agencies refuse to release information.

For these reasons, we are deeply disappointed that the Administration objects to the bill's inclusion of the public-interest balancing test for declassification and the concomitant amendment to the Freedom of Information Act. [Letter from Samuel R. Berger to Lee Hamilton, September 17, 1998; sees. 2(c) and (f) in S. 712 as reported out of the Senate Committee on Governmental Affairs.] The Administration's demand to eliminate from the bill the balancing test and its enforcement under the FOIA threatens to eviscerate the bill and to gut any real reform. If the bill were to passed without these provisions, we fear that secrecy reform would suffer a grievous setback. The historic opportunity carved out by the Commission to advance reform beyond the status quo will have been missed, and instead the Congress risks codifying a Cold War understanding of national security secrecy that ill serves democratic principles.

While we understand that the Administration's objections may make it difficult to pass the bill as reported out of Committee in this session of Congress, we urge you to insist on keeping these provisions in the bill.

We believe that the administration's objections can be overridden, if not in this Congress, then in the next one. The objections are based on a dangerous and erroneous view that the President has absolute and unreviewable authority over national security information. This view of exclusive authority challenges not only the judiciary's constitutional role in enforcing the law but also Congress' shared responsibility for national security information. It is inconsistent with Supreme Court precedent [See, EPA v. Mink, 410 U.S. 73 (1973)], and contradicts decades of congressional legislating. [Most recently, the Nazi War Crimes Disclosure Act, but also the JFK Assassinations Records Collection Act, the Foreign Relations Authorization Act of 1992 (concerning the Department of State's Foreign Relations of the United States series), and the Intelligence Oversight Act, among others.] Indeed, this same argument was rejected by the Congress in 1974 when it overrode President Ford's veto of the amendment to the Freedom of Information Act providing that federal courts should deter nine whether information is properly classified. In now objecting to judicial review, the administration is seeking to repeal the most important element of the FOIA.

Moreover, the oft-cited specter of "judicial intrusion on the President's constitutional authority" is not grounded in any real historical experience. The bill would authorize judicial review to determine whether mid-level agency officials have correctly applied declassification standards. In reality, no federal court is ever going to release national security information over the objection of the President or even the head of an agency, and certainly no appeals court would uphold any such decision. At the same time, experience confirms that it is only the availability of judicial review that ensures that agencies do, in fact, live up to their legal obligations under the FOIA. For example, only when the CIA was forced to defend its withholding of the aggregate intelligence budget in 1997 in court did the agency finally release the information.

As Senator Moynihan has written, "[s]ecrecy can be a source of dangerous ignorance.... It is time ... to assert certain American fundamentals, foremost of which is the right to know what government is doing, and the corresponding ability to judge its performance." These key provisions of the bill are essential to allow the public to do just that -- to participate effectively in the political process and to engage in democratic decision making on fundamental issues of foreign policy and national security.

Thank you for considering our views.

Sincerely yours,

Kate Martin
Center for National Security Studies

Steven Aftergood
Federation of American Scientists

Thomas Blanton
National Security Archive

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