August 1, 1975
Page 26894
EXECUTIVE SECRECY: TWO PERSPECTIVES
Mr. MUSKIE. Mr. President, during the past few years the Government Operations Subcommittee on Intergovernmental Relations, for which I serve as chairman, has conducted an ongoing investigation of the tendency of Federal agencies to keep their operations secret from the American public.
A major portion of our efforts, including 5 days of hearings held in May and June of 1974, focused upon the implementation of Presidential Executive Order 11652, the basic authority used by Government officials to classify materials and withhold them from public access. It is our concern that that Executive order provides too broad an authority to classify Government materials and as a result fosters unnecessary and often costly practices to protect materials which never should have been stamped secret.
One of the leading authorities on classification in the United States and now a consultant on Government security policies is William G. Florence. As a matter of public interest and service, Mr. Florence frequently has provided our subcommittee with both testimony and advice in its efforts to explore legislative alternatives to the Presidential classification system.
Recently Mr. Florence was asked to speak at Journalism Week at the University of Missouri at Columbia on this most important subject. His remarks have been included in report No. 336 of the Freedom of Information Center located at that University's School of Journalism. In a significant comment on the classification system and current efforts to write criminal legislation for the protection of classified information Mr. Florence stated:
A particularly strong reason why many individuals use the security classification system for information they want to control is their belief that some Federal law protects information with a classification on it, and that any one who discloses such information without their approval can be punished under the law.
That belief is based on the erroneous statement in Executive Order 11652 that wrongful disclosure of classified information "is recognized in the Federal Criminal Code as providing the basis for prosecution." But that threat is a deliberate misrepresentation of law. There is no statute providing any such sanction. In the letter to the writer last July, the Department of Defense stated that the threat "is admittedly an attention getting device." Yet millions of people have been deceived by the threat and are convinced that it is valid.
It is our hope that the continuing study by our subcommittee of the present classification system and hearings which we anticipate holding this fall will provide the basis for a statutory restructuring of that system. In that Mr. Florence's comments underscore the importance of this effort, I ask unanimous consent that the comments be printed in the RECORD.
There being no objection, the comments were ordered to be printed in the RECORD, as follows:
[Freedom of Information Center Report No. 336]
In this report, the latest in a continuing series concerning governmental secrecy provides a general view with specific cases, written by William G. Florence, former security classification policy officer with the Department of the Air Force, presently a consultant on government security policies with the Center for National Security Studies, Washington, D.C. He also acts as a volunteer consultant to Sen. Muskie's Subcommittee on Intergovernmental Relations and Rep. Bella Abzug's Subcommittee on Government Information and Individual Rights.
THE PRESIDENTIAL SECRECY SYSTEM VERSUS OUR RIGHT TO KNOW
The purpose of this report is to describe a heavy political restraint on communication regarding the affairs of our government. The restraint prevents people from getting facts which they must have to determine their own destinies. It affects the capability of media to inform citizens of what is going on in their government.
This restraint is the secrecy system currently promulgated in Executive Order 11652, subject: Classification and Declassification of National Security Information, dated March 8, 1972.
Under this presidential order, Executive branch people may classify official information as Confidential, Secret, or Top Secret, and protect it from unauthorized disclosure in the interest of national defense or foreign relations. Actually, those two interests were quickly obliterated in the order by being given the collective, catch-all, shorthand term "national security." Thus, the operational requirement is that official information shall be classified for secrecy if "its unauthorized disclosure could reasonably be expected to cause damage to the national security."
Any government effort to protect information which really would damage or impair the capability of this nation to defend itself would be consonant with our Constitution, and with one of the basic purposes of our existence as the United States. If Executive Order 11652 were designed for and limited to that objective, it would demand the support of all citizens.
But the system established in the order permits imposition of security classification controls on information for any purpose. Hundreds of thousands of individuals in at least 30 Executive branch departments and independent agencies can classify information in tremendous volumes for what they personally consider to be national security reasons. Few of them understand, or could possibly understand, the damage factor that is stated in the order as the basis for classification.
The writer has observed that the reasons most commonly used today for classifying information are–
a. The information was new to the classifier;
b. Desire to keep it out of newspapers;
c. Reluctance to "give it away";
d. "I don't see foreign people giving us this kind of information";
e. "A foreign government might not like my saying what its officials did";
f. "Disclosure might lead to examination of my program";
g. Association of separate non-classified items;
h. Repeated use of old information without trying to declassify it;
i. Personal prestige; and
j. Habitual practice, including clerical routine.
A particularly strong reason why many individuals use the security classification system for information they want to control is their belief that some federal law protects information with a classification on it and that anyone who discloses such information without their approval can be punished under the law.
That belief is based on the erroneous statement in Executive Order 11852 that wrongful disclosure of classified information "is recognized in the Federal Criminal Code as providing a basis for prosecution." But that threat is a deliberate misrepresentation of law. There is no statute providing any such sanction. In a letter to the writer last July, the Department of Defense stated that the threat "is admittedly an attention getting device." Yet millions of people have been deceived about the threat and are convinced that it is valid.
Incidentally, the Department of Justice is trying now to have Congress enact a law that really would make it a crime for an individual to disclose classified information to a so-called unauthorized person. The proposal is section 1124 of Senate bill S-1, the bill which would revise the entire Federal Criminal Code. Section 1124 has been dubbed the "official secrets act." It would apply to journalists if they have knowledge of any classified information that was officially given to them.
How did this presidential secrecy system come about? The quick answer is that we did it to ourselves. Over 30 years ago, a contagion of World War II Army and Navy military secrecy practices was allowed to seep into almost every civilian agency of government.The practice spread throughout the land during those historic battles against alleged Communist agents during the Cold War years.
In 1951, President Truman made the original Army and Navy security classification system directive, for the first time, upon the entire Executive branch by promulgating Executive Order 10290. President Eisenhower replaced that order with Executive Order 10501, which was replaced with the current order in 1972.
But there has been no change in the basic military system of permitting individuals to classify information and mark documents as Confidential, or higher, according to their choice. Perhaps over 20 million documents in use today have classification markings to keep them secret from the public.
And there has been no substantial change in the utterly unrealistic procedure for declassification. Once a classification is put a document, with no specific provision for timely cancellation of that classification, the document must be kept and handled in secrecy until some especially designated person:
a. Can be hired or otherwise made available, and
b. Has time enough to review the document for possible declassification, and
c. Also has common sense enough to cancel the classification.
It is the latter bureaucratic obsession with security classification secrecy that keeps security classification markings on about one billion pages of this nation's historical records in the National Archives.
The widespread effect of the President'sorder for secrecy, in the name of national security, is also reflected by the following facts:
a. Over 12,000 industrial and academic locations in the United States have a "facility security clearance" granted by the Department of Defense for access to information bearing security classification markings.
b. Perhaps as many as eight million people in government, industry, and academic institutions are working with information which has a classification marking of Confidential or higher.
In addition to other ills that result from the President's secrecy system, hundreds of millions of dollars are spent in an effort to apply and enforce rules for precluding unauthorized disclosure of information bearing security classification markings. The funds are expended on the basis of assigned markings, regardless of whether the information has already been disclosed.
Why is the presidential secrecy system permitted to exist?
The majority of American people adopted the false philosophy of secrecy which was promoted after World War II. This stemmed from a fear complex, the fear of some danger that could not be met by existing statutory or constitutional capabilities. A security classification was exactly the right kind of label to designate information for secrecy so as to protect the "national security" from any imaginable threat, foreign or domestic.
Concurrently, the security classification system was equated with patriotism. People who supported security classification secrecy met the national security loyalty test. Anyone who violated a security classification could be branded a threat to national security, and could be considered disloyal.
This security classification hoax has been accepted for years by people in all walks of life. Its proponents include publishers, journalists and educators. Included also are a great many industrialists and others who profit from security classification secrecy.
It should be remembered that an individual who works under the security classification system's rules can use them for any secrecy purpose that seems advantageous. Some highly publicized abuses of governmental power committed under cover of the executive order classification system, including the Cambodia bombing and the Huston plan for surveillance of citizens, have been extremely serious for the nation. In the context, all citizens have a problem with the presidential secrecy system, if they want an open government.
Here are three requests for access to some documents that the Departments of Defense and State denied just a few days ago. They show the day-to-day use of the classification system.
On March 2, 1975 I requested access to a document that was produced July 19, 1974 by the Department of Defense Documentation Center in Alexandria, Virginia. The title is Technical Abstract Bulletin Indexes. It contains brief non-classified abstracts of scientific and technical studies made by Department of Defense contractors and other sources. The publication could be used by an individual to order copies of such technical reports as would be helpful in his own endeavors.
The documentation center notified me March 24, 1975 that "your request to inspect this document is denied because it is a Confidential document." The letter did not explain how a document containing only non-classified information could qualify for Confidential classification secrecy. But no explanation is expected by those of us who have observed such absurd secrecy practices, in the name of national security, throughout the Department of Defense.
Next is a case of a request dated February 19, 1975 for access to the Background Paper on the Vladivostok SALT Agreements which the Secretary of State used November 25, 1974 in giving briefings to a great many people about the agreements. The Department of State ruled March 5, 1975 that the document is not available for inspection. The reason given was that some information is "classified on the ground that attribution of these remarks to the Secretary of State could damage the national security." There was no amplification or explanation whatsoever.
The third case is a request of March 1, 1975 for access to four of the Vietnam Study documents known as the Pentagon Papers. They contain information about efforts that our government made up to 1967, through many other governments, to negotiate with North Vietnam on ending the war in Southeast Asia.
These four documents had not been released to anyone by Dr. Ellsberg, but they were listed in the indictment against him because he had reproduced them along with other documents which he did release. All four were still marked TOP SECRET when the government introduced them into evidence during the Ellsberg-Russo trial, January, 1973. There they became public records. Several months later, after the trial had ended, the judge permitted the government to remove the documents from the court's public files.
But on March 31, 1975, the request for access to the volumes was denied by the Department of State. The letter said that material in them is classified because:
a. It includes information furnished in confidence to United States officials by officials of other governments, and
b. Some portions reveal United States Government communications describing actions and/or inactions of officials of other governments who are currently in office, and
c. Release of the information would damage the ability of the United States to conduct its foreign affairs.
Here a Department of State official ruled that some interchanges made in confidence with foreign officials many years ago, and some facts about foreign officials, shall keep the American people from access to important historical information. Aside from the Federal District Court ruling in 1973 that the documents were public records, the question arises: When did the American people authorize an Executive branch official to commit this nation to lifetime secrecy on the effort we made to extricate ourselves from Vietnam? It would seem that if some official acted outside lawful authority, that is his problem, not ours.
The same principle should apply in the case of many pleas made by the Central Intelligence Agency for secrecy. Officials of that agency who have engaged in actions that the American people would never have condoned cry out that the information must be kept secret or their dirty work will be exposed.
Finally, the same principles did apply in the cases of Egil Krogh, John Ehrlichman, and others who claimed that the transgressions they committed under the presidential secrecy system should have been kept secret to protect the national security. But their conviction in court proves that the public's right to know can prevail under law, even if it has no chance under E. O. 11652.
What is being done to eradicate this devotion to the cultism of national security secrecy?
First, the Executive branch and the industrialist supporters of the military security classification system must be discounted, as they all favor bureaucratic secrecy.
Second, Congress has belatedly, but resolutely, initiated action toward security classification reform. Congress took a big step in November, 1974, in moving to preempt the President's self-assumed free-wheeling classification authority, when the President's veto was overriden and section 552, title 5 of the United States Code was amended to permit a federal judge to decide the validity of a security classification on an official record if an individual's request for access to it is denied.
That section of law is known as the Freedom of Information Act. But that is really a misnomer. The section is part of the "housekeeping" code on the administration of records. Section 552 exists to require each Executive branch agency to do four things:
a. Publish information in the Federal Register regarding its organization, functions, operational procedures, and its rules of general applicability,
b. Make available for public inspection and copying (1) manuals and instructions that affect a member of the public, (2) final opinions made in adjudicating cases, and (3) all statements of policy and interpretations not published in the Federal Register,
c. Make available for public inspection and copying current indexes of matters referred to in a and b above, and
d. Make any other existing official record available to a person who requests access to it or a copy of it, unless the record is exempt from mandatory disclosure under the law. (Note that official records properly classified under Executive Order 11652 constitute one of the nine exemptions from mandatory release.)
A more appropriate title might be "The Availability of Records Act." No agency is required to disclose information, as such, or to create a record containing information for a requester. Furthermore, an agency may charge a requester a sizable fee to search for a record and another fee to reproduce it if a copy is desired.
Although the amendment of the FOI Act to authorize judicial review of a classified document was truly a landmark legislative action, Congress did nothing to eliminate unnecessary controls on information that agencies maintain under the presidential secrecy system. As the three examples of requests for access to records show, the individuals who denied them applied the same bureaucratic secrecy philosophy that has existed in the Executive branch for 30 years.
Of course, a denial can be appealed to a higher-level authority in the agency. And it is true that if an appeal is denied, the requester can enter suit in federal court to compel the agency to make a record available. The judge might even require the government to pay the requester's litigation costs. But that would be only one of millions of records that agencies are keeping secret from the public.
On the other hand, the judge might agree with the agency's reasons for not releasing the record. A requester could waste a great deal of time and money in getting nothing.
In the final analysis, Congress has not set any limitation on Executive branch secrecy. All that Congress said in amending the FOI Act about security classification secrecy is that a Federal judge can decide whether the security classification on a specific document meets whatever secrecy criteria the President has published in an executive order.
There is another major move under way in Congress. The plan is to dry up false secrecy at the source by enacting a security classification reform statute.
It would seem best, in my view, for Congress to enact the most simple classification law that is practicable, in exercising its constitutional responsibility to provide for the national defense. The President would act as both Chief Executive and Commander-in-Chief in implementing the law.
I suggest that:
a. Congress specify a legal designation for official government information, the unauthorized disclosure of which could reasonably be expected to cause damage to the national defense. The designation could be "Defense Data." That would compare in principle with the single designation, "Restricted Data," that is specified and defined in the Atomic Energy Act. As in the case of Atomic Energy "Restricted Data," Congress would permit the President to set rules for different indicators or markings on "Defense Data" according to the degree of protection required.
b. Congress could define the damage that would be expected to result from an unauthorized disclosure which should be avoided. This could be far more successful than trying to define information to be protected. In defining "damage,"Congress could limit use of the specified secrecy designation, "Defense Data," to the following:
(1) Disruption of foreign relations affecting the defense of the United States.
(2) Compromise of a current operational plan or contingency plan for the defense of the United States against attack, including the intelligence estimate.
(3) Compromise of a current intelligence operation important to the defense of the United States.
(4) Compromise of an official cryptologic system important to the defense of the United States.
(5) Disclosure of official information regarding a technological development of the government that is primarily useful for military purposes, which disclosure itself would eliminate a known technological advantage of the United States important to the national defense.
(6) Disclosure of official information which would make a current weapon system or a military operation vulnerable to successful hostile attack or other successful counter-measures.
c. Congress would set the basis for the President and heads of specified agencies to designate information as "Defense Data" for protection in the interest of national defense.
d. The law itself could automatically declassify information after a brief period of time, possibly after three years, if declassification is not accomplished beforehand by the Executive branch. But agency heads would be authorized to defer automatic declassification on limited types of information under a requirement that Congress be notified or a deferral that would keep an item in secrecy for more than some period such as five years.
e. The Comptroller General of the United States could be designated, and be given the necessary resources, to monitor actions taken by agencies to implement and adhere to policies established by Congress. This would be on the same basis that the Comptroller General monitors other actions of executive agencies.
That type of legislation would define and limit drastically the authority of the Executive branch to try to keep official information secret in the name of national defense. The criminal code would continue as the basis for criminalizing such disclosure of national defense information as Congress chooses to make unlawful.
Both Senator Muskie (D-Me.), Chairman of the Senate Subcommittee on Intergovernmental Relations, and Representative Abzug (D-N.Y.), Chairwoman of the House Subcommittee on Government Information and Individual Rights, plan to hold hearings on proposals for security classification reform in 1975. I know that they would welcome advice and support from every person who is interested in being informed of what is going on in the Federal Executive branch.