F.A.S. Public Interest Report

Journal of the Federation of American Scientists (F.A.S.)

Contents

Openness and Secrecy at the Department of Energy After the China Espionage Investigations: by Steven Aftergood   FAS Notes De-Alerting Campaign Kicks Off Hail and Farewell to FAS Staff R. Wilson, First Chairman, Dies FAS PIR Index

Editorial

Openness and Secrecy: The Pendulum Swings

By Steven Aftergood

The United States has the most open government in the world. Anchored securely by the First Amendment, openness is reinforced every day by a press corps that publishes even classified information without penalty. At the same time, however, the US government maintains a massive secrecy system. Given its huge military budget and vast intelligence bureaucracy, the US produces more new secrets more quickly than anyone else, including 7.3 million distinct secrets in 1998 alone. There is an enduring tension between the secret enclaves of government and the more or less transparent political structures surrounding them.

Today, more official information is more easily available to more people than ever before. The Clinton Administration has enacted and presided over momentous changes in government information policy. Even within the traditionally taciturn corners of the national security bureaucracy, a new degree of openness has been adopted. Every member agency of the U.S. intelligence community has its own web page, for example, and devotes modest but increasing resources to providing public information. In a remarkable but largely unsung bureaucratic transformation, agencies have engaged in a massive declassification program yielding over half a billion pages of historically valuable records in the last few years.

Many of these changes are irreversible. But lately, a countervailing tendency has become evident in which controls on national security information are being tightened, and in certain respects the pendulum has begun to swing back towards the expansive secrecy policies of the late cold war years.

Three Categories of Secrecy

Conceptually, government secrecy falls into three general categories. Genuine national security secrecy means the withholding of information based on the belief that it could damage the national security if disclosed. Bureaucratic secrecy refers to the unconscious hoarding and withholding of information that characterizes all bureaucracies, as well as the deliberate use of secrecy by one bureaucracy against another in intramural disputes. Political secrecy means restrictions on disclosure that are driven primarily by a desire to gain political advantage by shielding an official or a program against public embarrassment or controversy.

Unfortunately, in actual practice, "national security" is commonly invoked to legitimize all three categories of secret information, no matter how old and obsolete the information may be, or how self-serving its continued classification is.

But since there are significant costs to secrecy -- in terms of bureaucratic efficiency and government accountability, as well as financial costs that reached $5 billion in 1998 -- it is necessary to insist that official secrecy be limited to the "genuine" national security category, in which damage to national security is most assuredly at stake, and to eliminate as far as possible bureaucratic and political secrecy.

Some of the progress that had been made in recent years towards this elusive goal is now at risk. In particular, allegations of Chinese nuclear espionage have generated potent political pressures to slow or even reverse recent trends towards declassification, especially at the Department of Energy, where a new reorganization may actually encourage bureaucratic secrecy. As described below, openness policies at DOE have become a target and a casualty of intense partisan animosity and, all too often, demagoguery.

Next Steps

Responsible efforts to reform government secrecy policy must necessarily be nuanced and flexible, because there is a core of national security secrets whose continued withholding serves the public interest. There is no simple solution to the complex problem of limiting national security secrecy to its legitimate core, and the problem will probably never be permanently solved. But several specific declassification actions and structural reforms can be clearly specified. For example:

Annual Disclosure of the Intelligence Budget Total. The classification of the intelligence budget total is an icon of secrecy for its own sake, which nicely illustrates how secrecy is often unrelated to any threat to national security. Yet budget totals are precisely the kind of information that should be declassified, because they are indispensable for public debate on government spending. A 1997 FAS lawsuit won disclosure of the total intelligence budget ($26.6 billion in 1997) for the first time since World War II. However, an identical lawsuit seeking disclosure of the 1999 budget figure was not successful, marking a reversal of prior trends towards greater openness and accountability. Relatedly, declassification of the CIA budget (around $3 billion) is required in order to correct the distortion of the Defense Department budget (in which CIA spending is hidden), and to fulfill the constitutional requirement for a "regular statement and account" of government expenditures.

Expanded Declassification Authority. As a rule, classified records can only be declassified and disclosed by the agency that originated them. This policy protects and even encourages bureaucratic and political secrecy. Allowing authorities outside the originating agency to declassify records would help to reduce secrecy to its essential core. Such "outsiders" (from other government agencies) would share a commitment to genuine national security, but would not have the same bureaucratic or political interests. As a result, allowing Army officials to declassify Navy records, for example, and vice versa, would yield a significant reduction in secrecy. This theory has been demonstrated on a small scale by the Interagency Security Classification Appeals Panel. This Panel has declassified historical records against the wishes of the originating agency in over half of the several dozen cases it has considered. Applying this principle throughout the classification system would provide a strong internal self-check against bureaucratic and political secrecy.

Enhanced Judicial Review. The same principle of expanded declassification authority could usefully be extended to courts that decide Freedom of Information Act lawsuits. Current case law is such that most judges feel obliged to defer to even the silliest agency arguments about the need for classification. In other words, when it comes to classification policy, judges have largely ceased to exercise judgment. Adopting a statutory "balancing test" -- requiring that classification decisions consider the public interest in disclosure together with the security interest in secrecy -- and making such decisions subject to judicial review would be one way to impel judges to assert themselves and to provide another check on secrecy policy.

The FAS Project on Government Secrecy works to advance these and related objectives through web-based advocacy, media support, organizing and litigation. Further information is available on our web site at www.fas.org/sgp/index.html.

This issue of the PIR examines the current state of government secrecy policy with a special focus on the Department of Energy.

Hail and Farewell to FAS Staff

Pamina Firchow has come on board as a research assistant with the Arms Sales Monitoring Project. Recently returned from a year long fellowship with the German Bundestag, she has extensive background on Latin American political issues, especially small arms trade.

Amy Rossi will be assisting FAS President Jeremy Stone as well as coordinating the search for a new FAS President. After graduating from the State University of New York at Brockport last spring, she interned at the Washington Office on Latin America before arriving at FAS this December.

We are sorry to say goodbye to Mary Santos, our Organization Manager since July 1999, who has left FAS to help with Bill Bradley's Presidential campaign. We welcome her replacement, Karen Kelley. A graduate of the University of Virginia, she brings to FAS her non- profit administration background and a whole lot of enthusiasm.-KJK

R. Wilson, First Chairman, Dies

FAS deeply regrets the death at age 85 of Robert R. Wilson, its first elected Chariman (1945-1946). Dr. Wilson was a charming and brilliant Renaissance man, and one the first at Los Alamos to fully understand, and act upon, the dangers of nuclear weapons. He is best known for his leadership of the design and construction of Fermilab, though he worked with the Federation throughout his life.-JJS