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Secrecy & Government Bulletin

Issue Number 73
March 1998

Intel Committee Chairman: More Secrecy Needed

"We need to consider new and unique categories of secrecy for our most sensitive intelligence operations," said Senate Intelligence Committee Chairman Richard C. Shelby, "perhaps to include very serious penalties for public discussion of these activities."

These remarks were presented as part of a March 3 Senate colloquy concerning the Government Secrecy Act, the bill that was introduced by Senators Moynihan and Helms last year upon the recommendation of the Commission on Protecting and Reducing Government Secrecy.

Senator Shelby's comments are to be understood as a response to the extraordinary breakdown in security discipline within the intelligence community and throughout the executive branch generally, a Senate staffer said.

"I must tell you, the executive branch leaks like a sieve," said Director of Central Intelligence George Tenet at a Senate Intelligence Committee hearing on January 28. "If you look at the leaking that's gone on in the last couple of years, it's unprecedented in our history, from my perspective."

The disclosure of highly sensitive intelligence information has become so routine that some have inferred that it must be officially sanctioned-- and nefarious.

"Some U.S. intelligence services have apparently started to work against their president and government," said Yuri Kobaladze, spokesman for the Russian Foreign Intelligence Service, on February 26. (FBIS-TAC-98-057; Washington Times, 2/28/98). A CIA spokesman denied for the record that the Agency is attempting to undermine the United States Government.

Senator Shelby's call for "new and unique categories of secrecy" is primarily an expression of frustration and has not been fleshed out into a specific proposal. It fails to consider why the old categories are not working and so it holds little promise for improvement.

As for the "very serious penalties for public discussion" of intelligence activities, a Senate staffer explained that any such penalties would be directed at the leakers, not the press or other participants in subsequent public discussion.

At a hearing of the Senate Governmental Affairs Committee last May 7, author David Wise warned that the pending secrecy bill could eventually lead towards new restrictions on a free press and on free speech.

Mr. Wise, author of the classic 1973 book on secrecy called The Politics of Lying, was the only invited witness who opposed the bill. "The statute could lead down the road to criminalizing news stories and prosecuting reporters and writers, although I am sure that is the opposite of the Commission's intent," he testified. "But a statute could be the first step down the road to a draconian, British-style, Official Secrets Act."

That argument was received skeptically at the time. Former Secretary of State Lawrence Eagleburger said that "If in fact we start to slide in the direction [David Wise] suggests, I can assure you there are going to be 38,228 members of the press who are going to be screaming at you so fast that you'll never let it happen."

Secrecy Bill Elicits Opposition-- From Its Supporters

In an odd display of political contortionism, Senate leaders embraced the Government Secrecy Act even as they attacked its central provisions. The Act-- S.712 in the Senate, H.1546 in the House-- is intended to provide a statutory basis for the secrecy system, to promote greater consistency in the secrecy system, and to reduce unnecessary secrecy.

The March 3 Senate colloquy on the proposed legislation revealed that beneath the surface of cordial bipartisanship, there is profound disagreement about the bill, reflecting different perceptions about the nature of the secrecy problem and its proper solution.

In his remarks, Senate Majority Leader Trent Lott announced his co-sponsorship of the bill and then proceeded to criticize its most significant features.

"I am concerned about allowing judicial review of executive branch classification decisions," Senator Lott said, parroting the CIA and Justice Department critiques of the bill that are circulating in Congress. "I do not think it is wise or necessary to allow judges to second-guess classification decisions."

But judicial review of classification decisions is already allowed and has been since the 1974 amendments to the Freedom of Information Act. Those amendments permitted judges to determine whether or not information has been "properly" classified. From a non-governmental viewpoint, judicial review of classification is as wise and as necessary as are checks and balances in other areas of government operations-- it is the most important mechanism for citizens to challenge the universally recognized tendency of the executive branch to overclassify.

In opposition to the bill's proposed National Declassification Center, which would coordinate declassification throughout the government, Senator Lott likewise adopted the CIA and Justice Department position, insisting that "It is the agencies themselves that should retain the authority to declassify documents."

This insistence reflects a puzzling belief that improper declassification-- a relatively rare event-- is a bigger problem than unnecessary classification. Experience has demonstrated that the declassification process is always more effective when declassification authority is extended beyond the originating agency (even if it remains entirely within the executive branch). Thus the Interagency Security Classification Appeals Panel has more often than not overturned agency refusals to declassify. Without this kind of independent declassification authority, the National Declassification Center would be pointless or worse.

With supporters like Senator Lott, the secrecy bill does not need any opposition from the secrecy bureaucracy in the executive branch. But it may still merit opposition from the alert public because in its present form the bill threatens to undo the hard-won gains of the recent past.

As currently written, the bill would require the replacement of President Clinton's executive order 12958 which, with all of its limitations in conception and implementation, has produced dramatic improvements in the pace and volume of declassification. The pending bill would stymie this process and undercut the order's boldest features.

In particular, the bill fails to endorse the most important provision of the Clinton order which states that most 25 year old documents shall be automatically declassified by April 2000 "whether or not the documents have been reviewed."

Instead, the bill says that officials should make unspecified "decisions" about declassifying such documents "as soon as is practicable." The CIA had no objection to that provision of the bill.

CIA Changes Its Mind

Now that just about everyone has given up hope that the CIA can ever be "reformed," the Agency is giving unexpected hints of plasticity.

One such hint is the CIA's decision to declassify its 1961 Inspector General (IG) report on the Bay of Pigs invasion, which was released in February in response to a Freedom of Information Act request from the National Security Archive.

The IG report has great intrinsic historical value, as well as some pertinence to current discussions of the utility of covert action in connection with Iraq.

But its release also represents something of a milestone in the evolution of secrecy policy, since the report was intended to stay classified forever.

The author of the report, Lyman B. Kirkpatrick, Jr., wrote in his 1968 memoir that "The report that was produced was a critical one dealing with operational matters and therefore one that should always remain classified." (The Real CIA, p. 200).

The transition that CIA has made in this case from "declassification never" to "declassification now" is an exhilarating one, particularly if it really does signify a new attitude towards disclosure at the Agency.

More Intelligence Budget Disclosure to Come

When the CIA declassified the 1997 intelligence budget total in response to an FAS lawsuit, it portrayed the decision as a one-shot deal and not a precedent for any future disclosures. Now the Agency is giving mixed signals about whether or not an FAS request for the 1998 budget total will be granted without another lawsuit. The internal decision- making process at CIA is so laborious that a lawsuit may be necessary simply in order to move the paperwork forward.

FAS has also formally requested declassification of the 1999 total intelligence budget request, and has asked for "expedited processing" of the request. It was suggested to CIA that expedited processing is needed so that the public can meaningfully formulate and express its views on the intelligence budget prior to the floor debates this year on the 1999 intelligence authorization bill-- sometime in late spring.

By letter dated February 18, the CIA granted the request for expedited processing. Litigation may still be required, however, to compel actual disclosure in advance of the congressional debates.

Although Congress is on record as opposing any disclosure of the intelligence budget, there is a bipartisan consensus among intelligence experts that both the current budget total and the pending request can be safely disclosed and should be routinely published.

Thus, the 1996 Aspin-Brown Commission "recommends that at the beginning of each congressional budget cycle, the President or a designee disclose the total amount of money appropriated for intelligence activities for the current fiscal year (...) and the total amount being requested for the next fiscal year." (Preparing for the 21st Century, page 142.)

Given this unanimous judgment by distinguished intelligence experts in both parties, it would be difficult not to win a lawsuit seeking disclosure of the budget request, should that become necessary.

Fixing the Constitutional Problem

The Central Intelligence Agency is the only independent agency whose budget is concealed inside that of another agency. Federal budget documents inaccurately report most expenditures for the CIA as if they were Department of Defense (DoD) expenditures. Misrepresentation of the DoD budget in this way would appear to be at odds with the constitutional requirement for a "regular statement and account" of all government expenditures.

In a bid to correct this constitutional anomaly, FAS has submitted requests to three agencies for disclosure of the "true" budget for the DoD-- i.e. the amount of the total DoD budget without the CIA funds which are concealed inside it. Compliance with this request would almost necessarily require declassification of the roughly $3 billion CIA budget.

The CIA Act of 1949 (which may be unconstitutional) allows the size of the CIA budget to remain classified. But there is no law which permits the government to actively misrepresent the DoD budget or to misinform the public. To the contrary, the Secretary of the Treasury is required by law to "prepare reports that will inform... the public on the financial operations of the United States Government." Resolution of these conflicting imperatives is likely to require a judicial decision.

After Secrecy: Toward Global Transparency

At a time when public discourse in Washington is dominated by leaks, whether real or fabricated, and top secret documents are quoted promiscuously in the daily newspapers, it is getting hard to talk about "excessive government secrecy" with a straight face. In some areas (grand jury testimony, for one) a little more secrecy would actually come as a relief.

Although historians of the cold war era remain at a serious disadvantage and declassification of the backlog of old classified documents continues to pose a daunting task, the fact is that there is more government information available today than ever before and the quantity is only growing. If "openness" alone were the guarantee of wisdom, we should all be a lot wiser by now.

One continuing obstacle has to do with access. There is lots of information out there which is unclassified but not readily accessible. Making this information intelligible and available for informing public policy is a necessary next step, both at home and, even more so, abroad.

Fortunately, there are new tools to help accomplish this task which are rapidly creating an unprecedented degree of international transparency.

In anticipation of a possible military strike against Iraq, for example, John Pike of FAS engineered an amazingly rich series of web pages on various dimensions of the conflict at http://www.fas.org/man/dod-101/ops/iraq.htm.

In a February 23 article about the Iraqi conflict and the Internet, the New York Times observed that "The Federation of American Scientists runs perhaps the most complete site, with pictures of Iraqi military installations and information on Iraq's missile capabilities." (In contrast, the Times said, "the Defense Intelligence Agency... runs a relentlessly uninformative Web site.")

Another section of the FAS site caught the attention of the Israeli government because it "describes Israel's nuclear capabilities in great detail" according to a February 26 account in the Israeli daily Ha'aretz, which conveniently published the web site address: http://www.fas.org/nuke/guide/israel/facility/index.html.

Most of the information assembled here has been previously published, although there is some newly available declassified satellite imagery. Some of the information is inaccurate and is gradually being corrected.

After viewing the FAS site, among others, the Israeli Knesset Committee for Scientific and Technological Research asked Israel's chief censor, Brigadier General Yitzhak Shani, to determine whether the availability of such information on the Internet is harmful to state security.

In an interview at his office in the "kiryah" military complex in Tel Aviv last November, S&GB asked General Shani whether the explosion of information on the Internet would soon render Israel's system of military censorship obsolete. "I understand your question," he replied.

Secrecy & 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 HKH Foundation, the John S. and James L. Knight Foundation, and by viewers like you.

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