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Secrecy & Government Bulletin

Issue Number 81
October 1999

Congress Moves to Cripple Declassification

Congress has approved legislation that will require officials to conduct a new review of many of the one-half billion pages of documents that have already been declassified in order to search for nuclear weapons data that may have inadvertently been released into the public domain. Based on an unsavory melange of official falsehoods, distorted news coverage, and crackpot McCarthyism, the new measure will disrupt declassification government-wide.

The new provision, which appeared in section 3149 of the Defense Authorization Act for FY 2000, mandates that "all records subject to Executive Order No. 12958 that were determined ... to be suitable for declassification" between 1995 and 1998 shall be re-reviewed on a page-by-page basis, unless they are specifically certified to be highly unlikely to contain classified nuclear weapons information. This provision makes the restrictions on declassification that were imposed by Congress last year (see S&GB 74) retroactive to the first three years of the 1995 Clinton executive order on classification policy. The bill, which also included a $51 million spending cap for declassification at the Department of Defense, was signed by President Clinton on October 5.

New declassification activity at the Department of Energy and elsewhere will be significantly impeded as declassifiers are sent back to the National Archives to reexamine the vast quantity of records that were previously declassified. "Forty-four DOE declassifiers have already been assigned" to the task, said Roger Heusser, acting director of the DOE Office of Nuclear and National Security Information, on October 12. "I would like to put another twenty people on it." The re-review process could take as long as two years. Since Congress provided no money to fulfill the new requirement, the funds for these reviews must be diverted from other declassification programs.

For three years running, the Clinton Administration has managed to declassify an astonishing 200 million pages per year, according to a new report of the Information Security Oversight Office. This constituted a genuine transformation of a bureaucracy that was as deeply entrenched as any in Washington. Now, with congressional intervention, it seems that the glory days of declassification have come to an end.

A Congressional "Covert Action"

If the new legislation had resulted from an actual deliberative process, involving consideration of the risks and benefits of declassification, the extent to which sensitive nuclear information is present in declassified files, and the consequences of its potential disclosure-- then the result could be respected even by those who find it uncongenial.

But instead of deliberation and debate leading to a considered judgment, the Congressional assault on declassification was more like a covert action, involving secrecy and deception, as well as ignorance and malice.

As has become increasingly common in the current Congress, a significant policy initiative was adopted without hearings or any kind of evidentiary base that had been tested by critical inquiry. (A DOE report that will provide an evaluation of the problem of inadvertent disclosures in previously declassified files is expected later this year, but has not yet been delivered to Congress.)

In the absence of a valid justification for the legislation, a phony justification had to be provided. Senator Jon Kyl, the principal architect of the new requirement, told the Associated Press on August 24 that it was warranted by an official study indicating a frightening volume of inadvertent disclosures: "In a recent 140-page study of improperly released nuclear weapons data, the administration detailed numerous examples of key design information that was not intended to be released, but, in fact, was released," Kyl said (AP, Washington Times, 8/26/99).

Remarkably, however, this is a fabrication. There is no such study. It turns out that Kyl was misrepresenting a January 1999 DOE report entitled "Drawing Back the Curtain of Secrecy: Restricted Data Declassification Decisions, 1946 to the Present." This report describes the categories of nuclear information that have been properly declassified, pursuant to the requirements of the Atomic Energy Act. Inadvertent or improper disclosures are not addressed at all.

In other words, the new legislation is predicated on a falsehood.

The Times: DOE "Gambled" with Declassification

Kyl's false appraisal -- and the resulting legislation -- were inspired in part by a May 30 story in the New York Times, which also cited the January 1999 DOE study, describing it like Kyl as "more than 140 pages long." The Times story, written by the respected William J. Broad, portrayed DOE declassification activity as a tactic intended to advance the Clinton Administration's arms control agenda, even at the risk of adverse consequences to national security: "The U.S. gambled that making secrets public would help stop the weapons race."

By characterizing DOE declassification as a "gamble" and "a high-stakes bet," the Times was implicitly casting doubt on the legitimacy of the whole effort. Only if the declassifications were not properly justified on their own terms could one speak of a "gamble."

It is true that when then-Secretary Hazel O'Leary declassified a complete listing of U.S. nuclear explosive tests, she expressed the hope that the Russians would reciprocate with a similar publication of their testing history. They did so. But even if they had not, the consensus of expert opinion was that declassification was appropriate.

By asserting that declassification was a "prerequisite" for a comprehensive test ban, the Times marked DOE's declassification activity as a target and provided a compelling motivation for Kyl and other congressional Republicans, who probably don't care whether or not historical documents are declassified, but who are relentlessly hostile to anything that smacks of arms control.

In every important respect, the Times' account was in error. As noted in S&GB 79, the Fundamental Classification Policy Review initiated by Secretary O'Leary identified more nuclear secrets for increased classification than for declassification. This is inconsistent with Mr. Broad's assertion that O'Leary and DOE were out to "devalue" nuclear knowledge.

The unstated premise of Mr. Broad's notion of a declassification "gamble" is that greater secrecy translates into greater security, and that declassification means increased vulnerability. This is a limited and naive view. The expansive secrecy of the Reagan Administration, which was entirely compatible with deep foreign penetration of U.S. defense and intelligence agencies, suggests that the opposite may be closer to the truth. Most security professionals favor a risk management approach, with a narrow, discriminating application of classification authority.

More than any of its predecessors, the Clinton Administration has tried to promote such a discriminating approach, in which declassification plays an essential role. DOE declassifications must go through a rigorous review process by technical experts who are not political appointees --and many proposed declassifications have been rejected as a result, though you wouldn't know it from the Times account.

Contrary to claims made by one extremely biased Times source, most DOE declassifications simply have no bearing on arms control one way or another, except insofar as greater transparency generally tends to produce increased stability and a climate of trust. Finally, contrary to the Times' version of events, the 1993 DOE Openness Initiative clearly arose from the controversy over human radiation experiments, not from the debate over a comprehensive test ban.

The power and influence of the New York Times are never more evident than when it gets a story wrong. In this case, the Times took no steps to correct its alarming account, and now the consequences are written in law.

Weldon Muddies the Waters

The reputation of DOE declassification activity was further besmirched by Rep. Curt Weldon, who resumed his campaign of character assassination against former Energy Secretary O'Leary, alleging falsely that she had leaked a classified diagram of the W-87 nuclear warhead to a reporter from U.S. News and World Report. As discussed in S&GB 80, this allegation could not possibly be true.

Rep. Weldon, Senator Kyl's ideological soul mate in the House, renewed his weird campaign against the former Energy Secretary in an article entitled "It Was O'Leary!" in the Washington Times' Insight Magazine (August 23). And he repeated his allegations for at least the fourth time on the floor of the House on September 15.

Like a minor league Joe McCarthy with his variable list of card-carrying Communists, Weldon alters particular details of O'Leary's sin on each occasion: She leaked the information to U.S. News in 1995, or else it was in 1994; she handed over a particular illustration, or perhaps it was "the design" of the W-87. And so forth. But none of that matters, since the underlying charge is a lie from start to finish.

The roots of Weldon's obsession with former Secretary O'Leary are obscure. She has been out of office for years now. But by assaulting the reputation of the figure most publicly identified with openness at the Department of Energy, Weldon's campaign neatly complemented the efforts of Senator Kyl to derail declassification and the New York Times' tale of O'Leary's "gamble" with national secrets.

The fact that the new legislation is based in error and deception does not mean, unfortunately, that the issue it addresses is completely unfounded. Reviewers are discovering a small amount of classified nuclear weapons information within otherwise declassified record collections. "I'd say there's about one ten thousandth of a percent of the material that shouldn't be there," according to one senior official. "The problem is not non-existent," said another official, "but it is certainly small."

By eschewing risk management and insisting on absolute risk avoidance, however, Congress is repudiating the momentous secrecy reforms of recent years, and may end up driving the secrecy system back into the dysfunctional darkness of its cold war origins.

CIA Declassification Leaves Something to be Desired

The CIA delivered three million pages of partially or fully releasable documents to the National Archives this year, the Agency boasted in an October 5 press release. This compares favorably with the one million pages released last year, and the less than 200,000 pages the year before.

Though it may seem churlish to mention it, the CIA is required under executive order 12958 to declassify 15% of its non-exempt files each year -- or more than 9 million pages.

Perhaps an even greater concern is that most of what CIA has previously sent over to the Archives is dreck, according to independent researchers, who question the historical value of records on retirement and personnel policies, and other low-grade materials transferred to the Archives.

"There's a lot of stuff in there that's so mundane -- I swear -- that it would be of interest to nobody," said Prof. David Barrett, a political scientist at Villanova University who studies congressional oversight of intelligence in the early decades of the cold war. Barrett said he had reviewed about 190 of the roughly 250 boxes in the Archives' CIA Declassified Reference Materials collection. He estimated that perhaps one third of this volume consists of withdrawal slips referring to records that have not been declassified.

Barrett acknowledged that "There are some interesting things in there," including declassified National Intelligence Estimates on a variety of topics, notes prepared for a briefing by Allen Dulles to Congress concerning the clandestine service, a study on the use of trained animals for intelligence missions, and other miscellaneous items. Declassified office diaries, recording daily events and transactions, are of particular interest, said Barrett. But overall, he suggested, only "fifteen to twenty percent of these materials would be of interest to somebody."

"I'm not anti-CIA," Barrett said, "I'm really not. But I think any reasonable person would agree that this is a very disappointing collection."

Declassification Comes to the Supreme Court

The Supreme Court will hear its first case concerning Clinton Administration classification policy in December. The case, U.S. v. Weatherhead, concerns a lower court decision to release a classified letter that was sent by the British government to the U.S. Department of Justice in the 1980s. The lower court found the letter "innocuous" and ordered it released. But the Clinton Administration successfully petitioned the Supreme Court to review the case, arguing that release of the two page letter against the wishes of the British government could damage relations with the UK.

To some extent, the Administration appears to be arguing a position contrary to its own declared declassification policies. Under previous administrations, foreign government information was automatically presumed to cause damage to national security. But under President Clinton's executive order 12958, that is no longer true.

Today, foreign government information can remain classified only if release would "seriously and demonstrably impair either relations between the United States and a foreign government" or "on-going diplomatic activities."

One remarkable result of the new policy, said Roslyn A. Mazer, the Chair of the Interagency Security Classification Appeals Panel who spoke at the Freedom Forum on March 16, is that the US will sometimes declassify foreign government information "even if the [foreign] government says ‘Please don't declassify or disclose'."

Accordingly, British objections to release in the present case would seem to be insufficient in themselves to justify continued withholding.


Secrecy and 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 John S. and James L. Knight Foundation, the Rockefeller Family Fund, and the HKH Foundation.

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