Committee on Governmental Affairs
United States Senate
S. 712, The Government Secrecy Act
March 25, 1998
Mr. Chairman, I appreciate the opportunity to address your Committee on the subject of government secrecy.
I believe that this subject is as important as any on the Committee's agenda because it goes directly to the heart of our political system. Government controls on information define the limits of American democracy. Limits on information mean limits on informed debate, limits on the ability of citizens to meaningfully communicate with their representatives, and on their ability to hold elected officials accountable.
At the same time, it is self-evident that some degree of secrecy is necessary in certain matters of national security, including the protection of advanced military technologies and the conduct of diplomatic and intelligence activities.
A sound government information policy is therefore one that strikes a responsible and appropriate balance between the imperatives of open, accountable government and the requirements of national security secrecy.
Such a balance is precisely what has been lacking throughout the modern era of cold war secrecy, leaving us today with a grotesquely distended secrecy system that improperly withholds unimaginable quantities of records from public access while often failing to protect genuine secrets.
My hope is that Congress and this Committee will take steps towards a new balance that corrects the failings of the past, and will enact a government information policy that better serves the national interest.
In the following remarks, I will first present several assertions about secrecy policy by way of background, and I will then draw some specific conclusions concerning the Government Secrecy Act.
1. Most Americans believe that government secrecy is excessive.
One might well suppose that public concern about official secrecy is limited to those who are most immediately affected by it, such as journalists and historians, as well as a small cadre of advocates and activists. But that is not the case.
Public surveys conducted for the Department of Defense in 1994 and 1996 consistently found that a majority (55%) of Americans believe that "the government protects too many documents by classifying them as SECRET and TOP SECRET." 1
In other words, concern about excessive government secrecy is not simply the province of "special interest" groups; it is shared throughout the general public. Reducing government secrecy truly is a matter of "public interest."
Much of this public concern is latent and diffuse, but it crystallizes time and again around specific issues-- the JFK assassination, POW/MIAs in Southeast Asia, UFOs, Nazi war crimes, human rights violations in Latin America, and so forth.
2. Excessive classification is a fact. But independent review can overcome it.
Even if the majority of Americans believe that government secrecy is excessive, they could conceivably be mistaken. But they are not mistaken. It is demonstrably true that government agencies classify too much and fail to declassify information that no longer warrants protection.
This problem is illustrated with particular clarity by the fact that agency refusals to declassify records are frequently overturned-- within the executive branch itself-- by the Interagency Security Classification Appeals Panel (ISCAP), which receives appeals from members of the public for documents that agencies have refused to declassify.
Deputy Assistant Attorney General Roslyn A. Mazer, who was appointed by President Clinton to chair the ISCAP, reported recently on the latest activities of her Panel, which includes representatives of the Departments of Justice, State, Defense, CIA, NSC and the National Archives:
The fact that agency classification policies often cannot withstand scrutiny even within the executive branch points to the root of the problem. The problem is not that classifiers are dishonest or acting in bad faith; in general, they are doing a thankless job the best they can.
The problem rather is the natural and often unconscious tendency of all bureaucracies to limit the flow of information to outsiders. As Sen. Moynihan observed, "The problem is that organizations within a culture of secrecy will opt for classifying as much as possible, and for as long as possible."3 If they go unchecked, agencies will hoard information beyond all reason, which is how we got to where we are today.
Fortunately, Ms. Mazer's remarks also reveal a solution to this unavoidable problem, and that is independent review of agency classification decisions. The record of the ISCAP demonstrates that unnecessary classification can be reduced or eliminated when contested classification actions are reviewed by "outsiders" who share the agency's commitment to national security, but who do not share its Weberian tendencies toward bureaucratic secrecy.
Only such independent reviewers are capable of separating the national security wheat from the bureaucratic chaff. I believe that this is a crucial principle which should inform Congressional action in this area.
3. Congress is free to legislate on secrecy policy.
The Justice Department "strongly opposes a statutory framework for the safeguarding of national security information," arguing in effect not only that the President has the authority to set and implement classification policies, but that he has exclusive authority to do so.4
The Committee should recognize that this is a natural and predictable response from the executive branch, which seeks to preserve its prerogatives and to maximize its own freedom of action. But I believe the Justice Department overstates its case.
There is no question that Congress has the right and, I would say, the obligation to legislate in this area, particularly since the executive branch has failed to manage the secrecy system in a way that best serves the national interest. As Harold Relyea of the Congressional Research Service has pointed out:
Pursuant to its constitutional authority "To make Rules for the Government and Regulation of the land and naval forces" (Article I, Section 8, clause 14), as well as the "necessary and proper" clause (Article I, Section 8, clause 18), Congress has long established rules, regulations, and procedures of general effect for the government and the armed services.... These clauses would appear to empower Congress with authority to legislate policy and procedure comparable to that prescribed by presidential executive order to effect security classification.5
And of course Congress has enacted legislation dictating classification policy on numerous occasions, including the statutory classification framework of the Atomic Energy Act and the National Security Act, in which Congress (not the President) assigned the Director of Central Intelligence the responsibility for protecting intelligence sources and methods from unauthorized disclosure.
Furthermore, Congress has also successfully enacted statutes requiring disclosure of certain classified information, including the JFK Assassination Records Collection Act (P.L. 102-526) and legislation concerning the State Department's Foreign Relations of the United States series (P.L. 102-138). In addition, Congress has granted itself the authority to declassify any information in its possession.7
Today, several more bills mandating declassification are pending before Congress, including: S. 1220, "The Human Rights Information Act"8; S. 1232, a bill to declassify the private journal of Dr. Glenn Seaborg9; and S. 1379, "The Nazi War Crimes Disclosure Act."10 Each of these bills was introduced because the public had no choice but to turn to Congress in order to correct the failings of executive branch classification and declassification policies. If the Justice Department position were to be taken at face value, all of these bills-- as well as the Freedom of Information Act itself-- would be unconstitutional, and executive branch officials would have completely unchecked power to withhold whatever information they chose.
In short, while the executive branch is entitled to advise Congress to stay out of national security information policy, Congress must be guided by the larger national interest and has every right to reject that advice, as it has in the past.
4. The secrecy system is not as bad as it could be.
A statutory secrecy system should be conceived as a means, not an end in itself. In considering legislative changes to secrecy policy, Congress should aim to fix what needs fixing, but also to preserve what warrants preserving.
In particular, the Committee should recognize the changes that were inaugurated with President Clinton's executive order 12958, and which have already produced some impressive results.
Most important, from my point of view, is the order's automatic declassification provision (section 3.4) which requires the declassification of most historically valuable 25 year old documents by April 2000. This provision has generated an unprecedented surge in declassification, reported at nearly 200 million pages in FY 1996 alone.11
So Congress need not and should not consider classification policy in a vacuum. It must start with the reality of classification policy as it is today and "first, do no harm." Legislative changes to the classification system should begin by affirming what is positive in current policy-- and then building on it.
The Government Secrecy Act contains a number of important provisions which are derived from the two-year investigation of the Commission on Protecting and Reducing Government Secrecy. The Act's two most positive innovations-- a "balancing test" and a National Declassification Center-- are also the ones that have elicited the strongest opposition from the executive branch. I will comment briefly on each of these, and suggest one other area for Committee consideration.
1. The balancing test and judicial review.
Section 4(c)(1) of the Act would require officials to weigh or "balance" the potential benefit from disclosure against the need for protection in making classification and declassification decisions, and further dictates that if there is significant doubt about the need to classify the information, it shall not be classified.
From the perspective of a non-governmental consumer of government information, this is the Act's single most important provision.
In the abstract, the idea of "balancing" is unexceptionable and is almost built into the practice of classification. Executive order 12958 includes a discretionary balancing test for declassification (sect. 3.2b) as well as a "significant doubt" standard (sect. 1.2b) for classification. (Interestingly, the CIA promulgated a balancing test during the Carter Administration which remains in effect today [32 C.F.R. 1902.13(c)].)
This provision of the Act has drawn agency opposition not because of its balancing requirement per se, but because it would allow judicial review of agency balancing decisions under the Freedom of Information Act. The idea that courts would presume to "second guess" agency classification decisions is profoundly unwelcome to classifiers, who warn of disastrous consequences if their judgment is questioned.
This warning is self-serving and needs to be taken with large grains of salt. Similar concerns contributed to President Ford's decision to veto the 1974 amendments to the Freedom of Information Act, which allowed judges to determine whether information had been "properly" classified.12 Fortunately, Congress overrode that veto and it turned out that the opponents' fears were not realized.
To the contrary, judicial review has been a potent factor in making the FOIA as useful a tool of democracy as it is. Indeed, it has been persuasively argued that the courts are not sufficiently diligent in reviewing agency classification decisions.13
The CIA has warned of "costly legal challenges that risk second-guessing of DCI/CIA judgments." This is a considerable exaggeration since in practice, no judge would reject a sworn affidavit from the DCI that certain information must be withheld. But at the same time, CIA classification judgments are in need of the checks and balances that judicial review would provide, particularly when it comes to the invocation of "sources and methods." Thus, the Secrecy Commission last year found that:
Dire warnings of the consequences of judicial review of classification have not been borne out by the last 24 years of judicial review under the FOIA, and there is no reason to believe that courts would suddenly become reckless now when confronted with a balancing test.
I would add that any suggestions of a "flood" of lawsuits resulting from this provision are certain to be exaggerated. For the typical FOIA requester, there are huge "barriers to entry" to the judicial system. Legal representation is absurdly expensive, and pro bono assistance is generally available only in cases of considerable national importance or when victory is all but assured. In the last twenty years I must have filed hundreds of FOIA requests, but have brought suit under the FOIA only once.
The absence of effective "checks and balances" on executive branch classification actions has helped to produce today's bloated and highly arbitrary classification system. A balancing test that is subject to judicial review is the most appropriate solution.15
2. A National Declassification Center
The proposed National Declassification Center is a response to the fragmented quality of declassification policy, and to the inadequacy of executive branch oversight, which the Secrecy Commission described as "the critical missing link."16
As currently conceived, however, the Center risks becoming an extraneous bureaucracy that agencies are free to utilize or not, as they wish, and that has little or no independent authority. In order to fulfill its intended purpose, the Center should be assigned specific tasks and authorities. For example:
ISOO, under Steven Garfinkel's leadership, has a profound understanding of the intricacies and shortcomings of secrecy policy and, in my opinion, has generally demonstrated good judgment about what is appropriate and achievable and what is not. But ISOO's staffing and resource levels are laughably low when compared to its nominal responsibilities. This disparity between resources and responsibilities sends a message throughout the executive branch that "we're not going to take secrecy oversight seriously."
The ISCAP, meanwhile, is doing a fine job, but on a tiny scale. And it is already operating at full capacity, although its tasks are expected to escalate sharply in coming years. As ISCAP Chair Roslyn Mazer has noted,
But whether Congress chooses to invigorate the existing oversight entities or to establish a new National Declassification Center, the goal should be one that has been clearly formulated by the Secrecy Commission:
3. What About the "Other" Classification System?
If the Government Secrecy Act became law, we would not just have a statutory secrecy system-- we would have two statutory secrecy systems: one for national security information and one for atomic energy information, prescribed by the Atomic Energy Act of 1954. This may be too much of a good thing.
The existence of two parallel classification systems has proven to be a significant obstacle to efficiency in secrecy policy, as numerous records must undergo separate declassification reviews under each system.
Even the high-level executive branch officials who are members of the Interagency Security Classification Appeals Panel have been flummoxed by the difficulties in coordinating the declassification of information controlled under the Atomic Energy Act. This is particularly absurd because, according to Ms. Mazer,
The perpetuation of two distinct classification systems would represent a significant compromise of the Government Secrecy Act's goal of "a more stable and cost-effective set of policies and a more consistent application of rules and procedures."
Therefore, I would suggest that the Committee consider the feasibility of consolidating both classification systems into one.
Although the Cold War has officially been over for several years now, we still face the challenges of adapting the inherited structures of that era to the present day. Fixing the classification system is foremost among those challenges.
It is only natural that any significant changes to the status quo will be resisted by the bureaucratic systems that are now in place. But the Committee should have confidence in the traditional American mechanism of "checks and balances."
By installing new checks and balances into a classification system that has long been allowed to function unilaterally, Congress can induce prudent changes that will advance the national interest in open and accountable government, while more efficiently protecting genuine national security information.
1. Not inconsistently, a majority of those surveyed also favor "a high level of secrecy" for technology with military applications. "Public Attitudes Towards Security and Counter-Espionage Matters in 1994 and 1996" by Tom W. Smith, National Opinion Research Center, prepared for the Department of Defense Personnel Security Research Center, November 1996. http://www.fas.org/sgp/othergov/perssur2.html.
2. Remarks by Roslyn A. Mazer, Chair, Interagency Security Classification Appeals Panel, before the DoD Historical Records Declassification Advisory Panel, March 6, 1998, emphasis added. http://www.fas.org/sgp/advisory/iscap0398.html.
3. Report of the Commission on Protecting and Reducing Government Secrecy ("Commission Report"), 1997, Chairman's Foreword, page xxxix. Available in searchable "html" format at http://www.fas.org/sgp/library/moynihan/index.html.
4. "Subjecting the protection of national security information to statutorily-required standards or procedures would raise constitutional concerns to the extent that it would limit the President's ability to discharge a core constitutional responsibility as he sees fit." Memorandum from the Deputy Attorney General on the Government Secrecy Act of 1997, September 15, 1997.
5. Statement by Harold C. Relyea, Congressional Research Service, before the House Permanent Select Committee on Intelligence hearing on "A Statutory Basis for Classifying Information," March 16, 1994, page 48ff.
6. 410 U.S. at 83 (1973). See Testimony of Kate Martin, Director, Center for National Security Studies, before the House Permanent Select Committee on Intelligence hearing on "A Statutory Basis for Classifying Information," March 16, 1994, page 66ff, for further elaboration of related Court rulings, and her conclusion that "the only possible constitutional limitation would be that the Congress could not order disclosure of advice given to the President that would constitute a state secret."
7. See Senate Resolution 400, section 8.
11. 1996 ISOO Report to the President http://www.fas.org/sgp/isoo/isoo96.html.
12. See President Ford's veto message at 120 Congressional Record H36243-4.
13. "National Security Information Disclosure Under the FOIA: The Need for Effective Judicial Enforcement," Boston College Law Review 25: 611-643 (1984).
14. Commission Report, Chapter III, page 70, emphasis added.
15. The characteristic risks and benefits of information disclosure, and the mechanics of actually balancing them in practice are elucidated by Arvin S. Quist in Security Classification of Information, Vol. 2: Principles for Classification of Information, Martin Marietta Energy Systems, Inc., Oak Ridge, TN, Report No. K/CG-1077/V2, April 1993, Chaps. 5, 6. Of particular interest, Quist discusses how legal standards for weighing evidence that are already part of the judicial process-- such as "beyond a reasonable doubt," "clear and convincing evidence," and "preponderance of the evidence"-- could be used in balancing and in any subsequent review (pp. 61-69).
16. Commission Report, Chapter 2, page 42.
17. Remarks by Roslyn Mazer, footnote 2 above.
18. Commission Report, Chapter 2, page 44.
19. Remarks by Roslyn Mazer, footnote 2 above, emphasis added.