Testimony of Senator Daniel P. Moynihan

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Testimony of Senator Daniel Patrick Moynihan

Committee on Governmental Affairs
United States Senate

Hearing on Government Secrecy

Wednesday, May 7, 1997

I am grateful to Chairman Thompson, Senator Glenn, and the other members of this Committee for providing this opportunity to testify on the subject of government secrecy and, in particular, on the work of the Commission on Protecting and Reducing Government Secrecy. I am here this morning with my esteemed Commission colleagues, all of whom have had longstanding interest in these matters: Senator Jesse Helms; our Vice Chairman, Representative Larry Combest; and Representative Lee Hamilton.

Your invitation provides an opportunity to describe what we believe the Commission accomplished in its unanimous report, and what we now hope the Congress and Executive Branch officials can do to implement our key findings and recommendations.

We begin by defining our subject. Secrecy is a form of government regulation. It can be understood in terms of a now considerable literature concerning how organizations function. Begin with the German scholar Max Weber, writing eight decades ago:

"Normal" regulation concerns how citizens are to behave. As the administrative state developed in the United States, beginning with the Progressive Era at the turn of the century and expanding greatly under the New Deal, legal scholars began to ask just what these new rules were. Were they laws? If not, then what? In 1938, Roscoe Pound, Chairman of the American Bar Association's Special Committee on Administrative Law and former Dean of the Harvard Law School, attacked those "who would turn the administration of justice over to administrative absolutism . . . a Marxian idea," and inveighed against those "'progressives,' 'liberals,' or 'radicals' who desire to invest the national Government with totalitarian powers in the teeth of Constitutional democracy . . ."

We managed to get a handle on that system, in no small measure through the efforts of Erwin Griswold, also a Dean of the Harvard Law School, and others who decried the fact that administrative regulations "equivalent to law" had become increasingly important to everyday life and yet were not available to the public. One year after Professor Griswold published a seminal article calling for the publication of such rules and regulations,² Congress enacted the Federal Register Act of 1935. Eleven years later, in 1946, working from the recommendations made in 1941 by the Attorney General's Committee on Administrative Procedure, chaired by Dean Acheson, Congress enacted the Administrative Procedure Act.

Thus, today our system of public regulation is public indeed. Regulations are both widely accessible and subject to the APA's set of procedural requirements --bringing a degree of order and accountability to this regime.

Secrecy, by contrast, concerns what citizens may know, but the citizen does not know what may not be known. Our Commission states: "Americans are familiar with the tendency to overregulate in other areas. What is different with secrecy is that the public cannot know the extent or the content of the regulation." Thus,secrecy is the ultimate mode of regulation; the citizen does not even know that he or she is being regulated! It is a parallel regulatory regime with a far greater potential for damage if it malfunctions.

Flowing from this understanding of secrecy as regulation is the recognition that, to paraphrase Justice Potter Stewart's opinion in the Pentagon Papers case, when everything is secret, nothing is secret. We state: "The best way to ensure that secrecy is respected, and that the most important secrets remain secret, is for secrecy to be returned to its limited but necessary role. Secrets can be protected more effectively if secrecy is reduced overall."

It is time to reexamine the foundations of that secrecy system. The Information Security Oversight Office report to Congress last week estimated the direct costs of secrecy at $5.2 billion in 1996 alone. The same Office reports that in 1995 we had 21,871 "original" new Top Secret designations and another 374,244 "derivative" Top Secret designations. Meaning that, in a single year, roughly 400,000 new secrets were created at the Top Secret level alone -- the disclosure of any one of which would cause "exceptionally grave damage to the national security."³

It is time to examine the appropriateness of security arrangements put in place during an earlier age, when the perceived threats were so different from those of today. In 1957, the only previous commission established by the Congress to examine the secrecy system -- the Commission on Government Security -- issued a report that, for any number of reasons (in particular the fact that its core recommendation that amounted prior restraint of the press) did nothing to change the prevailing mode. (Although the Commission did understand classification as a cost; its report "stresses the dangers to national security that arise out of overclassification of information which retards scientific and technological progress, and thus tend to deprive the country of the lead time that results from the free exchange of ideas and information.")⁴

When the Commission on Government Security presented its report to President Eisenhower and the Congress, we still were consumed with concerns about a Federal Government infiltrated by ideological enemies of the United States. Today, the public and its representatives have few concerns; indeed, today it is the United States Government that increasingly is the object of what Edward Shils in 1956 termed the "phantasies of apocalyptic visionaries."⁵

We are not proposing putting an end to secrecy. It is at times terribly necessary and used for the most legitimate reasons. But secrecy need not remain the only norm: we must develop a competing culture of openness, fully consistent with our interests in protecting national security, but in which power is no longer derived primarily from one's ability to withhold information.

I understand that members of the Committee have received copies of a most remarkable letter I received from George F. Kennan, Professor Emeritus at the Institute for Advanced Study in Princeton, New Jersey, in response to our Commission report. As lucid and thoughtful as ever at age 93, Professor Kennan builds a compelling case for the proposition that much of our secrecy system arose out of our efforts to penetrate the obsessively secretive Soviet Communist regime of the Stalin era. And that the system we put in place remains largely intact today, even as that adversary has disappeared. Professor Kennan writes:

It is my conviction, based on some 70 years of experience, first as a government official and then in the past 45 years as an historian, that the need by our government for secret intelligence about affairs elsewhere in the world has been vastly over-rated. I would say that something upwards of 95% of what we need to know about foreign countries could be very well obtained by the careful and competent study of perfectly legitimate sources of information open and available to us in the rich library and archival holdings of this country.

I should note that Professor Kennan's conclusion about the share of information available from "open sources" also has been reached by other notable observers of the secrecy system -- the estimable George P. Shultz among them.

Developing a culture of openness within the Federal Government requires that secrecy be defined in statute. A statute will not put an end to overclassification and needless classification, but it will help by ensuring that the present regulatory regime cannot simply continue to flourish without any restraint. 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 belongs in the realm of national security and must serve that interest alone. It should not be employed as "a badge of office or a status symbol."

Thus we propose a statute. Today, Senator Helms and I introduce the Government Secrecy Act of 1997. Representatives Combest and Hamilton are cosponsoring a companion measure in the House of Representatives. This legislation -- defining the principles and standards to govern classification and declassification, and establishing within an existing agency a National Declassification Center to coordinate responsibility for declassifying historical documents -- is drawn directly from the Commission's recommendation for such a statute, as set out in the Summary and in Chapter I of our report.

I look forward to reviewing the legislation, as well as the other findings and recommendations of the Commission, with members of this Committee, as well as others in the Congress and the Executive Branch, in the weeks ahead.

1. Max Weber, Essays in Sociology, trans. and ed. H.H. Gerth and C. Wright Mills (New York: Oxford University Press, 1946), 233-34; Wirtschaft und Gesellschaft (Economy and Society), 1922.

2. Griswold, "Government in Ignorance of the Law -- A Plea for Better Publication of Executive Legislation," 48 Harvard L. Rev. 198 (1934).

3. Information Security Oversight Office, 1995 Report to the President (Washington:National Archives and Records Administration, Sept. 1996), 12-17.

4. Commission on Government Security, Report of the Commission on Government Security (Washington: Government Printing Office, 1957), xx.

5. Edward A. Shils, The Torment of Secrecy (Glencoe: The Free Press, 1956; reprint, with an introduction by Daniel Patrick Moynihan, Chicago: Ivan R. Dee, Inc., 1996), 70-71.