This age is in large measure past. Major conflict is no longer a prospect; ours is the only nation capable of waging a global war, and we have no such design. The ideological conflicts that arose in 19th century Europe are now largely spent; the totalitarian challenge is no more. (Totalitarian regimes persist, but make no ideological claim on the future.) Atomic peril has begun to recede, although the matter of stable controls in Russia is by no means resolved, and proto-nuclear powers proliferate. On the other hand, credible international regimes have begun to address matters such as chemical warfare. The world, if not at peace, nor likely to be, is even so not in imminent peril.
In this setting, it is reasonable and responsible to consider just how appropriate the security arrangements of that earlier age are to the one we have now entered. It is to be insisted that we are at the outset of a new era, for this fact is anything but plain. Wars used to end with homecoming parades and demobilization. Nothing so unambiguous happened after the Cold War, and so it requires an effort to think anew.
The 103rd Congress enacted legislation directing such an inquiry. Over the course of 80 years, notably in the later period, a vast system of secrecy developed within the American Government. So much that it has been termed a culture of secrecy. The system grew so vast, however, that it began to appear unavailing. Secrecy has been defined as "the compulsory withholding of information, reinforced by the prospect of sanctions for disclosure."1 Almost everything was declared secret; not everything remained secret, and there were no sanctions for disclosure. In the course of 1996, the Select Committee on Intelligence of the United States Senate carried out a detailed inquiry into the decision by the President not to object to the shipment of arms to Bosnia by way of Croatia. A notable aspect of this decision was that it was never put in writing. The Deputy Secretary of State explained this to the Committee in these terms:
This, of course, is a privilege of the privileged within the system. For the grunts the rule is stamp, stamp, stamp. On the occasion, June 29, 1993, that the Subcommittee on International Organizations of the Senate Committee on Foreign Relations reported out the legislation creating the present Commission, Senator John F. Kerry of Massachusetts made this comment concerning classified documents that the Select Committee on POW/MIA Affairs had reviewed:
It was just such anomalies that led to the Commission on Protecting and Reducing Government Secrecy (P.L. 103-236). This is to say, the judgment that unless secrecy is reduced, it cannot be protected.
In the course of the past 80 years, there has been only one other statutory inquiry into this subject. This was the Commission on Government Security, established in 1955 by the 84th Congress, known as the Wright Commission for its Chairman, Loyd Wright, past President of the American Bar Association. This was a distinguished bipartisan body, which included in its membership Senators John C. Stennis of Mississippi and Norris Cotton of New Hampshire, along with Representatives William M. McCulloch of Ohio and Francis E. Walter of Pennsylvania. President Dwight D. Eisenhower named as one his appointees James P. McGranery, Attorney General under Harry S Truman.
The Commission report, issued 40 years ago, is a document of careful balance and great detail. In proposing the Commission along with Senator Stennis, Senator Hubert H. Humphrey had asked, among other things, "What price are we willing to pay for security?" The Commission was especially attentive to this matter.
From 1917 forward, with only a slight lull in the 1920s, the issue of loyalty on the part of government servants had been one of acute concern. In 1931, the Civil Service Commission was provided with funds for fingerprinting Federal employees. In 1941, President Roosevelt ordered that this be done universally under FBI direction. That same year, the Attorney General, as the Commission stated, "advised the FBI that membership in the Communist Party, the German-American Bund, or in any of seven other organizations would constitute questionable loyalty within the intent of Congress." In 1944, the Civil Service Commission established a full-time Loyalty Rating Board to consider derogatory information. After World War II, just as after World War I, there was an extensive "Red Scare" which evoked an equal reaction by those who saw liberty threatened.
The Wright Commission was sensitive to all this and was sensible about it. It observed:
In the firm knowledge that Americans are loyal and devoted to their country, the Commission has striven at every point to emphasize the protection and safeguarding of their rights and liberties equally with the need of protecting our national security from the disloyal few, even though it recognizes that the disloyal are dangerous and the Communist threat is both real and formidable.4
The Commission was equally concerned with classification as a cost. Free inquiry, like free markets, is the most efficient way to get good results:
The first would penalize unlawful disclosures of classified information with knowledge of their classified character by persons outside as well as within the Government. In the past, only disclosures by Government employees have been punishable.
The second recommended legislation would make admissible in a court of law evidence of subversion obtained by wiretapping by authorized Government investigative agencies. Wiretapping would be permissible only by specific authorization of the Attorney General, and only in investigations of particular crimes affecting the security of the Nation.7
In retrospect, the importance of the Wright Commission was not what it proposed, but that its proposals were never seriously considered. It had become clear to the nation, as David Wise and Thomas B. Ross would later write, "that even in a time of Cold War, the United States Government must rest, in the words of the Declaration of Independence, on 'the consent of the governed.' And there can be no meaningful consent where those who are governed do not know to what they are consenting."8
Indeed it could be fairly said that the temperament of the Commission did prevail. This was not an angry or accusatory group; rather the opposite. It proposed to expand the regime of national security as a regulatory mode. But it did so tentatively, and without conviction; certainly without any sense of urgency. There was even a touch of apprehension: had we already gone far enough, or even too far? Thus, the opening statement of the Summary of Recommendations:
Before turning to our own recommendations, it is appropriate to acknowledge the substantial work of the Commission on the Roles and Capabilities of the United States Intelligence Community, also established by the 103rd Congress (P.L. 103-359). The Commission was originally chaired by the Honorable Les Aspin, former Secretary of Defense, with the Honorable Warren B. Rudman as Vice Chairman. Following Secretary Aspin's death, former Secretary of Defense Harold Brown took his place and led the Commission to an incisive and hugely rewarding set of proposals for a now hugely complex system.
This was not the first inquiry into the organization of intelligence. To the contrary, these had proliferated in recent years as the public administration aspects of intelligence became more visible and, accordingly, open to the range of analysis now characteristic of contemporary public administration theory. Begin with the law of emulation. Organizations in conflict become like one another. Bureaucracies are inherently conflictual, competing for resources and position. (On preparing to leave his position as Director of the Central Intelligence Agency, the distinguished scientist and public servant John M. Deutch told the Senate Select Committee on Intelligence that the Director "has very little power" to influence what the dozen or so other intelligence agencies do.1010> ) In an appendix to its report, the Aspin-Brown Commission produced an organization chart showing the relationship of some 21 departments, agencies, offices, or boards to the President.11
The Commission also listed recent administrative enquiries concerning this maze and the overall structure of the Intelligence Community:
The Joint Security Commission issued a report in February 1994 recommending common standards for adjudications and a joint investigative service to standardize background investigations and thus take advantage of economics of scale, improvements in information systems security, a radical new classification system and a special permanent committee to replace the numerous existing fora that independently develop security policies. The classification recommendation was enacted in a Presidential Executive Order in April 1995, some aspects of personnel security were addressed by an Executive Order in July 1995 and a permanent Controlled Access Program Oversight Committee was established in August 1995. [Italics added.]12
The Intelligence Community Revolution Task Force (June 1995) strongly recommended the adoption of common management procedures and processes throughout the Community to facilitate movement of personnel and to cut infrastructure costs by creating a single personnel system, improving performance evaluations, consolidating recruitment and training, and creating common standards of security. The Community leadership is still reviewing these recommendations. [Italics added.]
The Intelligence Community Task Force on Personnel Reform (July 1995 -- also known as the Jehn study) identified four principal problem areas: a largely dysfunctional system of performance appraisal and management; a lack of systematic career planning and professional development across the Community; the variety and complexity of the various personnel systems; and the inadequate promotion of a sense of community among the agencies. This report was briefed to DCI Deutch in August 1995 and the Community is reviewing its recommendations. [Italics added.]13
Our Commission has not been indifferent to organization theory. Our hearings began with an exposition of the writings of Max Weber, who first set forth, over eight decades ago, that secrecy was a normal mode by which bureaucracies conduct their business. These "bureaus" appeared everywhere in 19th century Europe, and were clearly a different mode of governance. Different from princely courts, or for that matter, parliaments. Rulemaking was the distinctive mode of bureaucracy. We came to call it regulation.
If the present report is to serve any large purpose, it is to introduce the public to the thought that secrecy is a mode of regulation. In truth, it is the ultimate mode, for the citizen does not even know that he or she is being regulated. Normal regulation concerns how citizens must behave, and so regulations are widely promulgated. Secrecy, by contrast, concerns what citizens may know; and the citizen is not told what may not be known.
With the arrival of the New Deal agencies in the 1930s, it became clear that public regulation needed to be made more accessible to the public. In 1935, for example, the Federal Register began publication. Thereafter, all public regulations were published and accessible. In 1946, the Administrative Procedure Act established procedures by which the citizen can question and even litigate regulation. In 1966, the Freedom of Information Act, technically an amendment to the original 1946 Act, provided citizens yet more access to government files.
The Administrative Procedure Act brought some order and accountability to the flood of government regulations that at times bids fare to overwhelm us. (It will be recalled that at the outset of his administration, President Jimmy Carter instructed his cabinet members that their departments were not to promulgate any regulation they had not personally read. One by one the cabinet officers came to the White House to confess that the task had proven impossible.)
Even so, "overregulation" is a continuing theme in American public life, as in most modern administrative states. Secrecy would be such an issue, save that secrecy is secret. Make no mistake, however. It is a parallel regulatory regime with a far greater potential for damage if it malfunctions.
This can take the form of espionage when, unknown to us, information presumed to be secret becomes known to adversaries. Given the danger of espionage, a secrecy system can become so constrictive that information is effectively withheld from those who need it. There seems to be no doubt, for example, that the Soviet Union deteriorated not least because the responsible actors rarely really knew what was going on. (If they had, very likely we would have!) Indeed, the study of economics provides the first principles here. Free markets provide the most information to economic players. As information becomes less free, markets become ever more imperfect, decisions less informed and, accordingly, less efficient.
We are not going to put an end to secrecy. It is at times legitimate and necessary. But it is possible to conceive that secrecy, a culture of secrecy, need not remain the only norm in American Government as regards national security. It is possible to conceive that a competing culture of openness might develop which could assert and demonstrate greater efficiency.
There is no way to make certain that this will happen. Yet, the competitive spirit can be put to work here. An example, on a subject that still troubles our foreign relations, is the abortive Bay of Pigs invasion of Cuba in April, 1961. Planned and carried out in secret, the object was to arouse a popular revolt against the regime of Fidel Castro, which had become unmistakably Communist in its orientation. No such uprising occurred, and the events were set in motion that arguably led to the Cuban Missile Crisis of 1962, the closest the United States and the Soviet Union came to a nuclear exchange during the Cold War.
It need not have happened. In the spring of 1960, Lloyd A. Free of the Institute for International Social Research at Princeton (no friend of the new regime, but a social scientist, withal) had carried out an extensive public opinion survey in Cuba. Polling techniques now common to American politics were already quite developed by scholars such as Free and his associate Hadley Cantril; in this case the technique was the "Self-Anchoring Striving Scale." One thousand Cubans were asked to rank their well-being at that time, five years previously, and five years hence. Cubans reported they were hugely optimistic about the future, and mostly dreaded the return of the previous dictator Fulgencio Batista. They would learn better, as peoples the world over would do as the earlier excitements of revolution gave way to Leninist terror and intimidation. But they had not learned yet. Free's report ended on an unambiguous note: Cubans "are unlikely to shift their present overwhelming allegiance to Fidel Castro."15 Cantril later recalled:
A culture of openness will never develop within government until the present culture of secrecy is restrained by statute. Let law determine behavior, as it did in the case of the Administrative Procedure Act. A statute defining and limiting secrecy will not put an end to overclassification and needless classification, but it will help. At present, apart from atomic energy matters, there is almost no statutory basis for this regulatory regime; it has flourished of its own and without restraint.
The Commission, accordingly, judges that the first priority is to give a firm statutory base to the secrecy system. Classification should proceed according to law. Classifiers should know that they are acting lawfully and properly. We need to balance the possibility of harm to national security against the public's right to know what the Government is doing, or not doing. We should establish by statute that secrecy is the realm of national security and foreign policy. It is not a badge of office or a status symbol.
This latter point is to be stressed. To return to an earlier point, organizations emulate one another, especially if they are competitive. The technical term is "isomorphic": being of identical or similar form. After 80 years, half the buildings in Washington have an intelligence bureau tucked away somewhere. Too much. Wasteful and absurd in an information age that gives you most anything you want from open sources.
Accordingly, we propose a statute establishing a general classification regime and creating a national declassification center:
Sec. 2 The President shall, as needed, establish procedures and structures for classification of information. Procedures and structures shall be established and resources allocated for declassification as a parallel program to classification. Details of these programs and any revisions to them shall be published in the Federal Register and subject to notice and comment procedures.
Sec. 3 In establishing the standards and categories to apply in determining whether information should be or remain classified, such standards and categories shall include consideration of the benefit from public disclosure of the information and weigh it against the need for initial or continued protection under the classification system. If there is significant doubt whether information requires protec-tion, it shall not be classified.
Sec. 4 Information shall remain classified for no longer than ten years, unless the agency specifically recertifies that the particular information requires continued protection based on current risk assessments. All information shall be declassified after 30 years, unless it is shown that demonstrable harm to an individual or to ongoing government activities will result from release. Systematic declassification schedules shall be established. Agencies shall submit annual reports on their classification and declassification programs to the Congress.
Sec. 5 This statute shall not be construed as authority to withhold information from the Congress.
Sec. 6 There shall be established a National Declassification Center to coordinate, implement, and oversee the declassification policies and practices of the Federal Government. The Center shall report annually to the Congress and the President on its activities and on the status of declassification practices by all Federal agencies that use, hold, or create classified information.
In one direction we can reach out and touch the time when the leaders of the Soviet Union thought that the explosion at the nuclear reactor in Chernobyl could be kept secret from the rest of the world. In the other direction we can see a time--already upon us--when fourteen-year-old hackers in Australia or Newfoundland can make their way into the most sensitive areas of national security or international finance. The central concern of government in the future will not be information, but analysis. We need government agencies staffed with argumentative people who can live with ambiguity and look upon secrecy as a sign of insecurity.
Or worse. Secrecy can be a source of dangerous ignorance. The great discovery of Western science, somewhere in the 17th century, was the principle of openness. A scientist who judged he had discovered something, published it. Often to great controversy, leading to rejection, acceptance, modification, whatever. Which is to say, to knowledge. In this setting science advanced, as nowhere else and never before.
Clearly, there are scientific discoveries that can be kept secret, for a period at least, especially where weapons systems are involved. But these often verge on the technological, and whilst frequently spectacular, they do not stay secret long. Someone else gets onto the idea.
By contrast, secrecy in the political realm is always ambiguous. Some things should never be made secret. Some things should be made secret, but then released as soon as the immediate need has passed. Some things should be made secret and remain that way. The problem is that organizations within a culture of secrecy will opt for classifying as much as possible, and for as long as possible.
Observe the aftermath of Executive Order 12958, the most recent in a long series of such orders, issued by President William J. Clinton in 1995. Under the Order there are at present twenty officials, including the President himself, with the power to classify as Top Secret "information, the unauthorized disclosure of which could be expected to cause exceptionally grave damage to the national security." This authority to classify Top Secret information has been delegated under that Order to 1,336 "original classifiers." However, some two million government officials, in addition to one million industrial contractors, have "derivative classification" authority. According to the Information Security Oversight Office, in 1995 there were 21,871 "original" Top Secret designations and 374,244 "derivative" designations. Many of these "derivative" designations involve "sources and methods," one of the subjects concerning intelligence mentioned in the National Security Act of 1947. A report about troop movements might reveal that we have satellite photography in the region; such like matters. But consider: can there really have been some 400,000 secrets created in 1995, the disclosure of any one of which would cause "exceptionally grave damage to the national security"?
What can happen is that the failure of information to be accessible throughout the Government, much less to the public, can cause damage in its own right. An organization with a secret will hold onto it unless there is some exchange for releasing it. The Government becomes a market. Sometimes the exchange is quite palpable: I will exchange my secret for your secret. Sometimes less tangible: the willingness to bring along secrets can provide access for other purposes. But whatever the coinage, there are considerable transaction costs, as economists use this term. These are sluggish markets and highly imperfect ones; true prices are rarely known and impossible to determine.
As was to be predicted, power in a culture of secrecy frequently derives from withholding secrets. This was most evident in the poisonous period following World War II when the United States Army Security Agency's VENONA project began breaking the code of Soviet messages recounting espionage activities.17 Beginning in 1948, this information was passed to the Federal Bureau of Investigation where, having been further analyzed, it was in the main kept in the Director's vault. The Central Intelligence Agency was not informed about VENONA until 1952. Soviet cables indicated that the Office of Strategic Services (OSS) in World War II had been thoroughly infiltrated with Communists. As the CIA was widely regarded as the successor to the OSS, the Army and the FBI apparently were simply not willing to entrust it with their secrets.
Nor was President Truman himself informed of VENONA. In their recently published 450-page official history, VENONA: Soviet Espionage and the American Response, 1939-1957, Robert Louis Benson and Michael Warner write of the charges of espionage and treason in that era:
To this cultural distance, if it may be called that, add the singular difficulty posed by the personality of the then-Director of the Federal Bureau of Investigation, J. Edgar Hoover. By the mid-1940s, Hoover saw Communists everywhere. Possibly this reflected a mild paranoia; he gave that impression in person. But more likely it may be called the "Pearl Harbor Syndrome." No one would ever be able to say that his bureaucracy did not give the Commander-in-Chief timely warning.
In point of fact, Hoover was on to some important things. Thus, on May 29, 1946, he sent George E. Allen, a confidant of the President and head of the Reconstruction Finance Corporation, a four-page letter--PERSONAL AND CONFIDENTIAL BY SPECIAL MESSENGER--George from Edgar. (The first two pages of the letter are reproduced below.) The Director reported that a reliable source had revealed "an enormous Soviet espionage ring in Washington." Of some fourteen names listed, Alger Hiss was there, as was Nathan Gregory Silvermaster. But these names were well down the list. The name at the top was "Undersecretary of State Dean Acheson." The third name was "Former Assistant Secretary of War John J. McCloy." Further on was "Bureau of the Budget--Paul H. Appleby." To have known any of these men is to know that Hoover's suggestion was, well, clinical. Further, that it automatically discredited the other accusations, which happened to be on target. (Withal, neither Hiss nor Silvermaster was at that time in a sensitive government post.)
Benson and Warner continue:
Time was short, but what if, say, early in 1949 Washington, busy testing new weapons, had told the American public to expect that the Soviets would get their own bomb, and sooner rather than later--that they had gotten hold of many of our plans. (Their first device was almost an exact copy of ours.) Suppose further that the U.S. Government had told the public that even without our secrets, the Soviet scientists were plenty good enough to figure it out in time.
Of course, we did no such thing. In 1956, Edward A. Shils captured the aftermath in his fine, small study, The Torment of Secrecy: The Background and Consequences of American Security Policy. "The American visage began to cloud over," Shils wrote. "Secrets were to become our chief reliance just when it was becoming more and more evident that the Soviet Union had long maintained an active apparatus for espionage in the United States. For a country which had never previously thought of itself as an object of systematic espionage by foreign powers, it was unsettling."
The larger society, Shils continued, was "facing an unprecedented threat to its continuance." In these circumstances, "The phantasies of apocalyptic visionaries now claimed the respectability of being a reasonable interpretation of the real situation."20 A culture of secrecy took hold within American Government, while a hugely divisive debate raged in the Congress and the press.
That was then, and it was a long time back. The public today is not the least concerned about the infiltration of the Government by ideological enemies of the United States. To the contrary, the Government itself is increasingly the object of the "phantasies of apocalyptic visionaries." It is time to change.
A culture of openness can, and ought to, evolve within the Federal Government. The historical appendix to this report observes the salience of ethnicity at times of perceived national danger, a disposition which appears to remain with us. It is not too soon to note the growing suspicion of Muslim citizens, given our adversarial relations with several Islamic nations. Religious doctrine can be an equally powerful source of arousal. If the age of totalitarianism is behind us, "the clashes of civilizations" is seemingly just now resuming. And, as glum experience has taught us, there are ever those who can be corrupted for nothing more than money.
The more, then, to keep our system open as much as possible, with our purposes plain and accessible, so long as we continue to understand what the 20th century has surely taught, which is that open societies have enemies, too. Indeed, they are the greatest threat to closed societies and, accordingly, the first object of their enmity.
Finally, there is the interest of history. The secrecy system has systematically denied American historians access to the records of American history. Of late we find ourselves relying on archives of the former Soviet Union in Moscow to resolve questions of what was going on in Washington at mid-century. This is absurd. (And, if you are a secrecy buff, hazardous; suppose some commissar, sensing the end was nigh, placed forged KGB documents in the files implicating people he didn't like on both sides of the Iron Curtain? Or suppose some disgruntled American slipped misinformation to the KGB, knowing it would one day reveal the (fictitious but damning) treachery of a one-time colleague who had risen above him!)
And it is unnecessary. Whatever else comes of our Commission's work, we will have the great satisfaction in knowing that it encouraged the National Security Agency at long last to release the extraordinary account of Soviet espionage revealed by the VENONA project and the legendary men and women who broke the code and made the connections. We hope this will provide an example for other agencies. It has brought great credit on the agencies involved, and on the individuals who carried out the often impossible tasks. Impossible, that is, until the likes of Meredith Knox Gardner of the Army Security Agency and Robert J. Lamphere of the FBI came along. This is a history of intellectual dedication that Americans have a right to know about. And to celebrate.
It is time also 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.
1 Edward A. Shils, The Torment of Secrecy, with an introduction by Daniel Patrick Moynihan (Glencoe: The
Free Press, 1956; reprint, Chicago: Ivan R. Dee, Inc., 1996), 26.
2 Senate Select Committee on Intelligence, U.S. Actions Regarding Iranian and Other Arms Transfers to the Bosnian Army, 1994-1995, 103rd Cong., 1st sess., 7 November 1996, 27.
3 Senate Committee on Foreign Relations, Mark-up of Fiscal Year 1994 Foreign Relations Authorization Act: Hearing Before the Subcommittee on Terrorism, Narcotics and International Operations, 103rd Cong., 1st sess., 1993, 32.
4 Commission on Government Security, Report of the Commission on Government Security (Washington, D.C.: Government Printing Office, 1957), xvi.
5 Ibid., xvii.
6 Ibid., xx.
7 Ibid., xxiii.
8 David Wise and Thomas B. Ross, The Invisible Government (New York: Random House, 1964), 6. 9 Report of the Commission on Government Security, xvii.
10 R. Jeffrey Smith, "Having Lifted CIA's Veil, Deutch Sums Up: I Told You So," Washington Post, 26 December 1996, A25.
11 Commission on the Roles and Capabilities of the United States Intelligence Community, Preparing for the 21st Century: An Appraisal of U.S. Intelligence (Washington, D.C.: Government Printing Office, 1996), B-8.
12 In fact, the Joint Security Commission's recommendation to restructure the three-tier classification system was not adopted in the new Executive Order. Chapter II of this report discusses the reasons this recommendation was not implemented, and why, in the views of this Commission, the proposed change would not have addressed the core problems of the present system.
13 Preparing for the 21st Century, 101.
14 Ibid., 131.
15 Lloyd A. Free, "Attitudes of the Cuban People Toward the Castro Regime," Institute for International Social Research (Princeton: July 1960), 26.
16 Hadley Cantril, The Human Dimension: Experiences in Policy Research (New Brunswick: Rutgers University Press, 1967), 5.
17 The VENONA project began in 1943, although the first message was not broken until December 20, 1946.
18 Robert Louis Benson and Michael Warner, eds., VENONA: Soviet Espionage and the American Response, 1939-1957 (Washington, D.C.: National Security Agency, Central Intelligence Agency, 1996), xxiv.
19 Ibid., xxix.
20 Shils, Torment, 70-71.
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