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Secrecy & Government Bulletin

Issue Number 47
April 1995

Guatemala and the Limits of Oversight

The recent disclosures of the CIA's activities in Guatemala constitute "a study in the perils of secrecy," in the words of Senator Bob Kerrey. As such, the Guatemala case holds many lessons. Among them are the limitations of Congressional oversight of intelligence:

Without some external stimulus-- such as a leak-- the oversight process often fails.

Over time, the Congressional oversight committees have attained a perverse equilibrium with the intelligence community, in which investigative efforts are minimized or discouraged.

Only when that equilibrium is disturbed, as it was by Rep. Robert Torricelli's public disclosure of admittedly classified information, do the Congressional committees seem to move swiftly into action.

Thus, in a striking admission, Senator Kerrey said April 5 on the MacNeil Lehrer News Hour that "Although I didn't like, I must say, the manner in which he [Torricelli] disclosed this information, at the end of the day we are having these hearings as a consequence of that disclosure." The regrettable implication is that more such disclosures are necessary to invigorate the oversight process.

When it functions secretly, as a closed system, oversight doesn't work very well.

As Senate Intelligence Committee Chairman Arlen Specter noted, "We just finished a closed session looking for information [from the CIA] and frankly it's just like pulling teeth. It's like cross-examining a hostile witness to find out what went on. They are not as forthcoming as they ought to be."

Senator Specter also said that "It may well be that he [Rep. Torricelli] will turn out to be a hero of a sort."

The oversight committees gain most of their leverage from media attention.

The idea that the Congressional committees can function effectively in secret as "proxies" for the American people has been repeatedly disproved. The most important identifiable service the committees perform is to provide a focus and a forum for media attention after a scandal erupts. Conversely, media attention tends to set the agenda and to determine the intensity and duration of Congressional interest.

Reform of intelligence oversight should be added to the intelligence reform agenda.

None of the current intelligence reform initiatives include a revamping of intelligence oversight. But without a reliable system of "checks and balances" it is doubtful that any other reforms are worthwhile.

And while the rare disclosure that genuinely undermines national security should be punished accordingly, Congressional secrecy "oaths" should be revised to make explicit that they cannot be exploited to conceal criminal behavior from public knowledge.

Public Interest Leaks: The cause is excellent!

In a troubling passage in "A Scandal in Bohemia," Sherlock Holmes asks Doctor Watson to join him on an important case but warns that it might involve breaking the law and running the risk of arrest. Would the Doctor object to taking such a risk?

"Not in a good cause," Watson says.

"Oh, the cause is excellent!" the great detective replies, and off they go.

Acting in what they believe to be a good cause, more and more government officials are, like Rep. Robert Torricelli, disregarding classification rules and providing members of the general public with unauthorized access to classified information, even at the risk of official censure or worse.

Whether it concerns minimally restricted documents like draft executive orders or the most tightly secured government secrets (e.g. unacknowledged special access programs like Timberwind), a growing number of government officials are simply ignoring classification rules whose credibility has diminished due to widespread abuse.

While the increase in unauthorized disclosures is still a trickle rather than a flood, it clearly rivals or exceeds the constipated Freedom of Information Act process as a mechanism of government accountability.

Given any reasonable alternative, no one would prefer a leak- based information policy, which is inherently liable to abuse and manipulation. But the continuing failure to achieve fundamental reform of government secrecy policy means that in many cases there is no reasonable alternative. The mysterious generosity of the growing community of public interest leakers creates the possibility that if the Cold War secrecy system cannot be fixed-- then perhaps it can be circumvented.

Secrecy Undermines Environmental Oversight

In an apparent violation of basic environmental law, some secret government programs are eluding environmental oversight because they are too highly classified to be reviewed by responsible Environmental Protection Agency (EPA) officials.

Under the National Environmental Policy Act, the EPA is supposed to review every Environmental Impact Statement prepared and submitted by other government agencies.

But according to Richard E. Sanderson, Director of EPA's Office of Federal Activities, his office "has no people with suitable clearances to review [environmental] documents for 'black' programs." Moreover, "No one on our current staff recalls being requested to review such a document," he wrote on March 24.

The Sanderson statement was included in an April 5 memorandum prepared by the staff of the Advisory Committee on Human Radiation Experiments concerning "Contemporary Environmental Oversight of Classified Programs" (available from S&GB). The Advisory Committee staff noted with obvious understatement that "the lack of suitably cleared personnel raises serious questions about EPA's ability to review such programs."

Currently, the EPA is the target of a lawsuit filed by the Environmental Crimes Project at George Washington University and the Project on Government Oversight, which alleges that EPA failed to exercise its inspection and oversight responsibilities at the secret military facility near Groom Lake, Nevada, and that injuries to several workers occurred as a result. (National Journal, 4/8/95, p. 870). In another letter released by the Advisory Committee, the EPA confirmed that none of its personnel had ever visited the site.

On April 10, the Air Force seized 4000 acres of public land near Groom Lake location, also known as Area 51. Local hilltops in the seized land had become popular destinations for tourists eager to view a real live "secret military base." Glenn Campbell of the Area 51 Research Center, who opposed the land seizure, said that although the Air Force won the disputed land, the effort may have backfired to the extent that it increased public awareness of the unacknowledged facility.

Moynihan Commission Holds Second Meeting

The Commission on Reducing and Protecting Government Secrecy, chaired by Senator Daniel P. Moynihan, held its second meeting on March 30.

The Commission members, who all have real jobs, did not seem to be entirely familiar with the secrecy policy debates that have been raging for the last several years. Much of the meeting was devoted to tentative forays into the costs of classification, the pros and cons of bulk declassification, and other well-worn themes.

Departing White House Staff Secretary (and Commission member) John Podesta told the Commission that the new executive order on classification could be out "as early as next week." The unstated implication was that it could also be "as late as never." The two year anniversary of President Clinton's call for a new classification system falls on April 26.

Deputy Secretary of Defense (and DCI-designate) John Deutch, who is mired in an internal Pentagon controversy about declassification of records related to Gulf War Syndrome, conceded significantly that "Some form of bulk declassification will be needed at the back end [of the classification cycle]."

A number of alarming notes were sounded by Rep. Larry Combest, Vice-chairman of the Commission and Chairman of the House Intelligence Committee. Mr. Combest suggested that several detailees from the intelligence community should be assigned to make sure that the Moynihan Commission doesn't do "unintended damage." He further suggested that the pending executive order on classification policy may go too far in requiring agencies to declassify old records and that it may have to be revised to permit greater secrecy. Rep. Combest, who marches to a different drummer, recently told Defense Week (3/20/95, p.11) that he is "as opposed as I have ever been" to declassifying the size of the $28 billion intelligence budget.

Senator Moynihan had the best line of the day. During a digression about the CIA's failure to predict the collapse of the Soviet Union, the Senator recalled a remark by Trotsky's biographer Isaac Deutscher who once said "The proof of Trotsky's far-sightedness is that even now not one of his forecasts has come true!"

Security Policy Board Meets More Resistance

The interagency Security Policy Board has hardly done anything yet, but it is already making enemies right and left.

Most recently, the Board has tangled with the Federal Computer Security Program Managers' Forum, a group of federal officials dealing with computer security in the unclassified arena. The Forum criticized the Security Policy Board for attempting to assert authority over unclassified computer systems which, it estimated, comprise 90% of all federal computer systems.

"It is inappropriate in our opinion for the national security and intelligence communities to participate in selecting security measures for unclassified systems at the civil agencies," said Sadie Pitcher, information technology security manager at the Department of Commerce and co-chair of the Forum on March 23.

The Forum specifically objected to the Security Policy Board proposal last November to establish a government-wide computer security framework under its auspices. "We disagree wholeheartedly with the establishment of a national-security dominated information systems security committee," Ms. Pitcher said. "We do not have any concerns about this Board setting policy for the classified world.... It is in the unclassified but sensitive arena that we are very concerned.... We feel that it would undercut the Administration's efforts for an open government [sic] by placing additional regulations on access to information."

Ms. Pitcher addressed a meeting of the Computer System Security and Privacy Advisory Board. Following her presentation, as well as another presentation by SPB staff director Peter Saderholm, that Advisory Board passed a resolution recommending that "the SPB not proceed with its plans to control unclassified but sensitive systems until broader input of issues is gathered."

The Security Policy Board staff are not any less competent than, say, the staff of the NSC. But coming out of the intelligence community as they do, they have totally failed to comprehend public expectations about open, accountable government. If the Board persists in its efforts to expand the scope of the National Security State, the early indications are that it will fail.

The Advisory Board resolution and a related Forum letter to OMB are available from S&GB.

In Print

The record of the Senate Intelligence Committee's August 10, 1994 hearing on the secret construction of a massive new building for the National Reconnaissance Office-- the scandal before last-- has recently been published. A copy of "NRO Headquarters Project" (stock number 552-070-179-82-8) is available for $4.75 from the Government Printing Office (202-512-1808). Declassified excerpts from Congressional Budget Justification Books and other documents appended to the published record represent a significant fraction of all the official information about the NRO that is in the public domain.

The Department of Energy has published an updated edition of its compendium of declassification decisions, first issued last June. "Drawing Back the Curtain of Secrecy: Restricted Data Declassification Policy, 1946 to the Present" (RDD-2, January 1995, 125 pages) provides an historical overview of the evolution of DOE secrecy policy up to the present, listing hundreds of individual declassification actions by subject area. "It is hoped that this document will help educate the public on the technical policy decisions that underlie the Department's formidable classification responsibility." Single copies of the report may be requested free of charge from the DOE Office of Declassification at (301)903-6936 (voice) or (301)903-1230 (fax).

Secrecy and Government Bulletin is written by Steven Aftergood and published by the Federation of American Scientists, 307 Massachusetts Avenue N.E., Washington, DC 20002. For more information call (202)675-1012 or send email to saftergood@igc.apc.org

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