Government Secrecy Reform Act
Mr. MOYNIHAN. Mr. President, today the Senate Select Committee on
Intelligence brings to the floor the conference report on the
intelligence authorization bill. While I commend the Committee for
bringing this legislation to the floor, I would like to take this
opportunity to discuss a bill that the committee did not act on this
year: the government Secrecy Reform Act (S. 712).
This legislation stems from the unanimous recommendation of the
Commission on Protecting and Reducing Government Secrecy. Senator Jesse
Helms and I, and Representatives Larry Combest and Lee Hamilton (all
Commissioners), introduced the Government Secrecy Act in May 1997. The
bill sets out a new legislative framework to govern our secrecy system.
Our core objective is to ensure that secrecy proceed according to law.
The proposed statute can help ensure that the present regulatory regime
will not simply continue to flourish without any restraint and without
meaningful oversight and accountability.
A trenchant example of the need for reform in this area came last
week by way of the Assassination Records Review Board. The Board has
now completed its congressionally mandated review and release of
documents related to President Kennedy's assassination. It has
assembled at the National Archives a thorough collection of documents
and evidence that was previously secret and scattered about the
government. The Review Board found that while the public continues to
search for answers over the past thirty-five years:
[T]he official record on the assassination of President
Kennedy remained shrouded in secrecy and mystery.
The suspicions created by government secrecy eroded
confidence in the truthfulness of federal agencies in general
and damaged their credibility.
Credibility eroded needlessly, as most of the documents which the
Board reviewed were declassified. And at considerable cost, as it
represents the best-known and most notorious conspiracy theory now
extant: the unwillingness on the part of the vast majority of the
American public to accept that President Kennedy was assassinated in
1963 by Lee Harvey Oswald, acting alone.
Conspiracy theories have been with us since the birth of the
Republic. This one seems to have only grown. A poll taken in 1966, two
years after release of the Warren Commission report concluding that
Oswald had acted alone, found that 36 percent of respondents accepted
this finding, while 50 percent believed others had been involved in a
conspiracy to kill the President. by 1978 only 18 percent responded
that they believed the assassination had been the act of one man; fully
75 percent believed there had been a broader plot. The numbers have
remained relatively steady since; a 1993 poll also found that three-
quarters of those surveyed believed (consistent with the film JFK,
released that year) that there had been a conspiracy.
It so happens that I was in the White House at the hour of the
President's death (I was an assistant labor secretary at the time). I
feared what would become of him if he were not protected, and I pleaded
that we must get custody of Oswald. But no one seemed to be able to
hear. Presently Oswald was killed, significantly complicating matters.
I did not think there had been a conspiracy to kill the president,
but I was convinced that the American people would sooner or later come
to believe that there had been one unless we investigated the event
with exactly that presumption in mind. The Warren Commission report and
the other subsequent investigations, with their nearly universal
reliance on secrecy, did not dispel any such fantasies.
In conducting this document-by-document review of classified
information, the Board reports that ``the federal government needlessly
and wastefully classified and then withheld from public access
countless important records that did not require such treatment.'' How
to explain this?
Beginning with the concept that secrecy should be understood as a
form of government regulation. This was an insight of the Commission on
Protecting and Reducing Government Secrecy, which I chaired, building
on the work of the great German sociologist Max Weber, who wrote some
eight decades ago:
The pure interest of the bureaucracy in power, however, is
efficacious far beyond those areas where purely functional
interests make for secrecy. The concept of the `official
secret' is the specific invention of bureaucracy, and nothing
is so fantastically defended by the bureaucracy as this
attitude, which cannot be substantially defended beyond
these specifically qualified areas.
What we traditionally think of in this country as regulation concerns
how citizens are to behave. Whereas public regulation involves what the
citizen may do, secrecy concerns what that citizen may know. And the
citizen does not know what may not be known. As our Commission stated:
``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. In our democracy, where the free exchange of ideas is so
essential, it can be suffocating.
And so the Commission recommended that legislation must be enacted.
The Majority and Minority Leaders have been persuaded on the necessity
of such legislation and are cosponsors of the bill. On March 3, 1998,
we engaged in a colleague on the bill with the two Leaders, along with
myself, Senators Helms, Thompson, Glenn, Shelby, and Kerrey. At that
time we all agreed on the importance of considering the bill in this
session. The Majority Leader stated, ``I hope that this process of
committee consideration can be completed this spring and that we can
expeditiously schedule floor time for legislation addressing this
important issue. The Senate Governmental Affairs Committee, chaired by
Senator Thompson, considered the bill and approved it unanimously on
July 22. In its report to accompany the bill, the Committee had this
important insight:
Our liberties depend on the balanced structure created by
James Madison and the other framers of the Constitution. The
national security information system has not had a clear
legislative foundation, but . . . has been developed through
a series of executive orders. It is time to bring this
executive monopoly over the issue to an end, and to begin to
engage in the same sort of dialogue between Congress and the
executive that characterizes the development of government
policy in all other means.
We are not proposing putting an end to government secrecy. Far from
it. It is at times terribly necessary and used for the most legitimate
reasons--ranging from military operations to diplomatic endeavors.
Indeed, much of our Commission's report is devoted to explaining the
varied circumstances in which secrecy is most essential. Yet, the
bureaucratic attachment to secrecy has become so warped that, in the
words of Kermit Hall, a member of the Assassination Records Review
Board, it has transformed into ``a deeply ingrained commitment to
secrecy as a form of patriotism.''
Secrecy need not remain the only norm--particularly when one
considers that the current badly overextended system frequently fails
to protect its most important secrets adequately. We must develop what
might be termed a competing ``culture of openness''--fully consistent
with our interests in protecting national security, but in which power
and authority are no longer derived primarily from one's ability to
withhold information from others in government and the public at large.
Unfortunately, the Intelligence Committee did not take up this bill.
Part of the delay was a result of the tardy administration response to
the changes made by the Governmental Affairs Committee. A formal letter
on the bill was not delivered until September 17. In addition, this
letter sought the removal of the ``balancing test'' contained in the
bill, a change that the administration had not previously sought.
Nevertheless, we were on the threshold of reaching agreement on the
bill. The Intelligence Committee has been reviewing the bill
informally, and I hope the Chairman will agree that the difference
between us are not that great, and that we can pass the bill early in
the 106th Congress.
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I ask unanimous consent that the letter expressing the administration
views on the bill be printed in the Record at this point, along with
comments on the letter made in a joint letter by the National Security
Archives and the Federation of American Scientists, and a letter by
Representative Lee Hamilton.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Congress of the United States,
House of Representatives,
Washington, DC, October 2, 1998.
Mr. Steven Aftergood,
Federation of American Scientists
307 Massachusetts, Ave.,NE.,
Washington, DC.
Dear Mr. Aftergood, Thank you for your letter of September
24, 1998, concerning National Security Adviser Sandy Berger's
letter to me with the Administration's views on S. 712, The
Government Secrecy Reform Act of 1998.
I agree with you. I think it is a serious mistake to accept
the elimination of the public-interest balancing test as the
price for Administration support of the bill. To agree with
the Administration's proposed changes would amount to gutting
the bill. It would amount to a codification of existing
procedures in the Executive branch, and a rejection of the
work of the Secrecy Commission. I want to work with the
Administration in support of secrecy reform, but I cannot
accept a revised bill that does not change the unacceptable
status quo on classification and declassification.
As I read it, secrecy reform is dead in the current
Congress. In the absence of Administration support, moving
the bill forward just will not be possible.
On a personal note, I want to say that the efforts of you
and your organization have been very helpful to me and to
advocates of secrecy reform, and I wish you every success in
the 106th Congress.
With best regards,
Sincerely,
Lee H. Hamilton,
Ranking Democratic Member.
____
September 24, 1998.
Re S. 712, the Government Secrecy Reform Act of 1998
Hon. Daniel Patrick Moynihan,
United States Senate, Washington, DC.
Dear Senator Moynihan: As three public-interest
organizations that have collectively spent more than 50 years
battling excessive government secrecy imposed in the name of
national security, we write to applaud S. 712, the Government
Secrecy Reform Act of 1998, as a truly important and
unprecedented step towards reforming the Cold War secrecy
system.
The bill includes the critical ingredient for any real
reform, namely the public-interest balancing test and
judicial review under the Freedom of Information Act applying
that test. The public-interest balancing test--whereby
classification standards must incorporate a weighing of the
public interest in knowing the information against the harm
to the national security from disclosure--was one of the key
recommendations of the Commission on Protecting and Reducing
Government Secrecy in 1997. And the experience of the past 20
years confirms that Congress was correct in 1974, when it
recognized that an essential element for an effective Freedom
of Information Act is judicial review of whether
classification standards are being properly applied when
government agencies refuse to release information.
For these reasons, we are deeply disappointed that the
Administration objects to the bill's inclusion of the public-
interest balancing test for declassification and the
concomitant amendment to the Freedom of Information Act.
(Letter from Samuel R. Berger to Lee Hamilton, September 17,
1998; secs 2(c) and (f) in S. 712 as reported out of the
Senate Committee on Governmental Affairs.) The
Administration's demand to eliminate from the bill the
balancing test and its enforcement under the FOIA threatens
to eviscerate the bill and to gut any real reform. If the
bill were to be passed without these provisions, we fear that
secrecy reform would suffer a grievous setback. The historic
opportunity carved out by the Commission to advance reform
beyond the status quo will have been missed, and instead the
Congress risks codifying a Cold War understanding of national
security secrecy that ill serves democratic principles.
While we understand that the Administration's objections
may make it difficult to pass the bill as reported out of
Committee in this session of Congress, we urge you to insist
on keeping these provisions in the bill.
We believe that the administration's objections can be
overridden, if not in this Congress, then in the next one.
The objections are based on a dangerous and erroneous view
that the President has absolute and unreviewable authority
over national security information. This view of exclusive
authority challenges not only the judiciary's constitutional
role in enforcing the law but also Congress' shared
responsibility for national security information. It is
inconsistent with the Supreme Court precedent, (See, EPA v.
Mink, 410 U.S. 73 (1973) and contradicts decades of
congressional legislating. (Most recently, the Nazi War
Crimes Disclosure Act, but also the JFK Assassinations
Records Collection Act, the Foreign Relations Authorization
Act of 1992 (concerning the Department of State's Foreign
Relations of the United States series), and the Intelligence
Oversight Act, among others.) Indeed, this same argument was
rejected by the Congress in 1974 when it overrode President
Ford's veto of the amendment to the Freedom of Information
Act providing that federal courts should determine whether
information is properly classified. In now objection to
judicial review, the administration is seeking to repeal the
most important element of the FOIA.
Moreover, the oft-cited specter of ``judicial intrusion on
the President's constitutional authority'' is not grounded in
any real historical experience. The bill would authorize
judicial review to determine whether mid-level agency
officials have correctly applied declassification standards.
In reality, no federal court is ever going to release
national security information over the objection of the
President or even the head of an agency, and certainly no
appeals court would uphold any such decision. At the same
time, experience confirms that it is only the availability of
judicial review that ensures that agencies do, in fact, live
up to their legal obligations under the FOIA. For example,
only when the CIA was forced to defend its withholding of the
aggregate intelligence budget in 1997 in court did the agency
finally release the information.
As you have written, ``[s]ecrecry can be a source of
dangerous ignorance. . . . It is time. . . . 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.'' These key provisions of
the bill are essential to allow the public to do just that--
to participate effectively in the political process and to
engage in democratic decision making on fundamental issues of
foreign policy and national security.
Thank you for considering our views.
Sincerely yours,
Kate Martin,
Center for National Security Studies.
Steven Aftergood,
Federation of American Scientists.
Thomas Blanton,
National Security Archive.
____
The White House,
Washington, September 17, 1998.
Hon. Lee Hamilton,
Ranking Democratic Member,
Committee on International Relations,
House of Representatives,
Washington, DC.
Dear Lee: Thank you for your letter inquiring about the
Administration's views on S. 712, the Government Secrecy
Reform Act of 1998, which was reported out of the Senate
Committee on Governmental Affairs in July. I wrote to
Chairman Thompson on May 11, 1998, conveying Administration
views on this legislation; a copy of that letter is enclosed.
The amended version of S. 712 incorporates most of the
Administration's recommendations regarding the Office of
National Classification and Declassification Oversight
(NCDO); the use of classification and declassification
guidance; and the need to ensure that declassification
decisions are made only by the originating agency. The
Committee also clearly tried to address our concerns about
new rights of judicial review, but further clarification on
this vital point is necessary.
The additional improvements in S. 712 that we believe are
essential are discussed below. Based on recent discussions
with staff of Chairman Thompson. Senator Moynihan, and the
Senate Select Committee on Intelligence, I am hopeful that
needed changes can be made that would enable the
Administration to endorse this legislation. For each of the
key issues, our suggestions are included in a line-in/line-
out version of S. 712 enclosed with this letter.
1. The bill must be modified to make it unambiguously clear
that this legislation confers no new rights of judicial
review. While the text of Section 6 attempts to limit
judicial review, the interplay of other sections would create
new substantive and procedural rights. Section 2(c), which
requires a national security/public interest balancing test
before classifying or declassifying any information, also
sets forth specific standards for defining harm to national
security and the public interest. Section 2(f), which amends
the FOIA, clearly would make the application of a balancing
test subject to judicial review under FOIA. Indeed, the
Government Affairs Committee Report states that ``the
legislation necessarily imports into its new secrecy regime
the judicial review available under the Freedom of
Information Act (FOIA). For example, proper application of
the public interest/national security balancing test would be
within the scope of judicial review for Freedom of
Information Act requests for classified information. * * *''
Since the bill was reported, we have considered several
approaches to revising the balancing test language or adding
additional language to limit judicial review. None of these
approaches completely addresses the concern that legislating
a mandatory balancing test could encourage judicial intrusion
on the President's constitutional authority and transform the
nature of judicial review of classification and
declassification decisions in FOIA litigation. We have
concluded that the balancing test must be eliminated in order
to protect essential Presidential authority and to ensure
that the legislation introduces no new rights of judicial
review.
2. Section 2(d) would forbid the classification of any
information for more than 10
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years, without the concurrence of the head of the NCDO and a
written certification to the President. Since over half of
all original classification decisions made under E.O. 12958
are properly designated for more than 10 years (down from 95%
under the previous Executive Order), implementation of this
requirement would be unworkable without the employment of a
huge new bureaucracy at the NCDO and hundreds of new
certification writers at the agencies. The standards for
duration of classification must be rewritten to make them
compatible with the E.O. 12958 standards.
3. Section 4 establishes a Classification and
Declassification Review Board, consisting exclusively of non-
Government employees, to decide appeals from the public or
agencies of decisions made by agencies or the NCDO. Agencies
may appeal decisions of this Board only to the President.
Given the new oversight authority assigned to the Director of
the NCDO, and the existing rights of FOIA or Executive Order
appeal, this new entity is redundant and unnecessary, and it
is likely to be quite costly to operate. At a minimum, the
legislation must be amended to permit the President to
appoint Review Board members of his choosing, including
current Government employees.
4. S. 712 locates the NCDO within the EOP, which is highly
problematic given the traditional constraints on the budget
and staffing levels of the EOP. Therefore, we believe the
best organizational placement for the NCDO is the National
Archives and Records Administration, which has a strong
institutional commitment to declassifying public records as
expeditiously as possible consistent with protecting national
security interests. That said, we also would recommend the
addition of language that would codify an ongoing NSC role in
providing policy guidance to the NCDO and would enhance the
prospects of adequate funding for the NCDO. With a continued
NSC imprimatur and adequate assured funding, organizational
placement outside the EOP would be a much less difficult
issue.
5. Section 2(c)(4) requiring detailed written
justifications for all classification decisions is the kind
of administrative detail that should be left to the
discretion of the executive branch. As drafted, this
provision would increase paperwork and cost, without any
assurance of improving classification decisions or the
management of the program. However, we agree that it would
make sense to require detailed justifications whenever
classification decisions are incorporated into an agency's
classification guide.
6. Section 3(d)(7) should be modified to limit NCDO access
to the most sensitive records associated with a special
access program. Limiting access to such records is consistent
with E.O. 12958 but will not undermine the NCDO's ability to
oversee special access programs.
I appreciate your continuing leadership on this matter. By
working together on the difficult remaining issues, I think
we have a chance to establish a statutory framework for the
classification and declassification program that enhances the
President's authority to manage the program effectively.
Sincerely,
Samuel R. Berger,
Assistant to the President for
National Security Affairs.