[Senate Hearing 106-713]
[From the U.S. Government Publishing Office]
S. Hrg. 106-713
S. 1801--PUBLIC INTEREST DECLASSIFICATION ACT
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HEARING
BEFORE THE
COMMITTEE ON
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
JULY 26, 2000
__________
Printed for the use of the Committee on Governmental Affairs
U.S. GOVERNMENT PRINTING OFFICE
66-249 cc WASHINGTON : 2000
_______________________________________________________________________
For sale by the Superintendent of Documents, Congressional Sales Office
U.S. Government Printing Office, Washington, DC 20402
COMMITTEE ON GOVERNMENTAL AFFAIRS
FRED THOMPSON, Tennessee, Chairman
WILLIAM V. ROTH, Jr., Delaware JOSEPH I. LIEBERMAN, Connecticut
TED STEVENS, Alaska CARL LEVIN, Michigan
SUSAN M. COLLINS, Maine DANIEL K. AKAKA, Hawaii
GEORGE V. VOINOVICH, Ohio RICHARD J. DURBIN, Illinois
PETE V. DOMENICI, New Mexico ROBERT G. TORRICELLI, New Jersey
THAD COCHRAN, Mississippi MAX CLELAND, Georgia
ARLEN SPECTER, Pennsylvania JOHN EDWARDS, North Carolina
JUDD GREGG, New Hampshire
Hannah S. Sistare, Staff Director and Counsel
Christopher A. Ford, Chief Investigative Counsel
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Kevin A. Landy, Minority Counsel
Darla D. Cassell, Chief Clerk
C O N T E N T S
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Opening statements:
Page
Senator Thompson............................................. 1
Senator Lieberman............................................ 3
WITNESSES
Wednesday, July 26, 2000
Hon. Porter J. Goss, a Representative in Congress from the State
of Florida..................................................... 5
Hon. Daniel Patrick Moynihan, a U.S. Senator from the State of
New York....................................................... 9
Steven Garfinkel, Director, Information Security Oversight
Office, National Archives and Records Administration........... 14
Steven Aftergood, Director, Project on Government Secrecy,
Federation of American Scientists.............................. 15
Warren F. Kimball, Ph.D., Robert Treat Professor of History,
Rutgers University............................................. 17
Hon. R. James Woolsey, Shea and Gardner, and Former Director of
the Central Intelligence Agency................................ 20
Alphabetical List of Witnesses
Aftergood, Steven:
Testimony.................................................... 15
Prepared statement........................................... 67
Garfinkel, Steven:
Testimony.................................................... 14
Prepared statement with an attachment........................ 60
Goss, Hon. Porter J.:
Testimony.................................................... 5
Prepared statement........................................... 29
Kimball, Warren F.:
Testimony.................................................... 17
Prepared statement........................................... 73
Moynihan, Hon. Daniel Patrick:
Testimony.................................................... 9
Prepared statement with attachments.......................... 34
Woolsey, Hon. R. James:
Testimony.................................................... 20
Prepared statement........................................... 79
APPENDIX
Copy of S. 1801.................................................. 84
S. 1801--PUBLIC INTEREST DECLASSIFICATION ACT
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WEDNESDAY, JULY 26, 2000
U.S. Senate,
Committee on Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in room
SD-342, Dirksen Senate Office Building, Hon. Fred Thompson,
Chairman of the Committee, presiding.
Present: Senators Thompson and Lieberman.
OPENING STATEMENT OF CHAIRMAN THOMPSON
Chairman Thompson. Let's come to order, please. I think
Senator Lieberman will join us shortly, but since we have votes
and Congressman Goss has commitments, I think we should
probably get started.
Today, the Governmental Affairs Committee is holding a
hearing on S. 1801--the Public Interest Declassification Act of
1999. This bill is only the latest in a series of legislative
efforts in this Committee growing out of the 1997 report of the
Commission on Protecting and Reducing Government Secrecy, which
made very clear that the Federal Government classifies too much
information too easily and for too long.
Like so many areas of national security law, information
classification is a delicate balancing act. It is vital, of
course, that we protect information if its release would
threaten our national security. Being too timid about
classification or declassifying recklessly can be a terrible
mistake. At the same time, however, if the government
classifies too much information, the system begins to break
down and everyone loses.
Overclassification deprives us of the intellectual
synergies and public accountability that can come from sharing
information. It can also lead people to stop taking security
restrictions as seriously as they deserve to be taken. To
borrow a phrase from Supreme Court Justice Potter Stewart's
opinion in the Pentagon Papers case, if everything is secret
then nothing is really secret.
Furthermore, even when information is not appropriate for
public disclosure, overclassification within the government can
deprive officials of information they need to know by
restricting access to an unreasonably small number of persons.
These debates are important because our classification
system faces a huge and growing challenge. Today, our security
agencies are subject to an executive order to review for
declassification everything over 25 years old. This program is
only just beginning to bring our government's overworked
declassifiers into the age of ubiquitous photocopiers, computer
databases, and desktop word-processing, and the resulting
explosion of classified records that these technologies entail.
What happens when they reach the age of E-mail, blast faxes,
and the Internet? The Commission's report concluded that our
classification system has become unreasonably large and
complex.
As Senator Moynihan has previously pointed out to this
Committee, secrecy is really a form of government regulation.
In other words, it has its place, but without careful
oversight, it will do what bureaucracies everywhere do if you
leave them to their own devices: Expand themselves beyond the
bounds of reason.
As a result, Congress has tried twice in recent years to
enact reforms of the classification bureaucracy. The first of
these was S. 712, the Government Secrecy Reform Act, which was
introduced by Senators Moynihan and Helms. That bill, which was
modified and reported out of this Committee, was an ambitious
effort to codify many of the recommendations of the Commission.
While Congress has long regulated the classification of
nuclear weapons-related data through the Atomic Energy Act, the
classification of other national security information has been
left entirely to Executive Branch discretion. S. 712 aimed to
end this monopoly by establishing for the first time a
statutory framework for the classification process. Although we
had been working closely with the White House in developing our
approach to S. 712, this effort collapsed when sweeping
administration objections materialized only after the bill had
left our Committee. A successor bill, S. 22, also languished.
The bill we are considering today, S. 1801--the Public
Interest Declassification Act of 1999, is the latest attempt to
help reform our secrecy bureaucracy. It would establish a
Public Interest Declassification Board to advise the President
on declassification policy and upon the identification and
declassification of records of ``extraordinary public
interest.''
As I indicated, our security agencies face a tremendous
burden with regard to declassification. Having for years
classified information with great abandon, the government is
struggling to deal with a huge number of requests for
declassification. Today, in addition to the 25-year review, our
security agencies must carry a growing burden on the account of
the proliferation of so-called ``special searches'' requested
by the President and by Congress.
This search process is time-consuming and expensive, and
devours resources that otherwise might be spent on more
systematic declassification efforts or on fulfilling basic
missions, such as intelligence collection and analysis. So, we
seem to be having trouble getting it right. For years, we
classified too much for too long. Now we are straining our
system to declassify old records as rapidly as possible, even
though we still show no sign of slowing the rate at which
classified information is created.
Some worry that we are eating into mission functions by
devoting increasing resources to mandatory declassification
programs. Moreover, in our zeal to move mountains of paper out
the door, we may also be releasing information that should
properly remain secret. According to Energy Secretary Bill
Richardson, for example, nuclear weapons-related information
has been accidentally released as a part of bulk
declassification programs during the Clinton Administration.
So, it is a question of striking the right balance, of
finding a way to release needlessly classified information
without preventing our security agencies from accomplishing
their missions or letting sensitive information escape. The
question for us today is to what degree will setting up the
Public Interest Declassification Board contribute toward
achieving that balance?
We have a fine group of witnesses today, beginning with the
author of the bill and its most prominent supporter in the
House of Representatives. I look forward to hearing their
views.
Senator Lieberman.
OPENING STATEMENT OF SENATOR LIEBERMAN
Senator Lieberman. Thanks, Mr. Chairman. Sorry to be a
little late. I just ended a markup in another committee, but I
am glad I made it here in time to thank you for calling this
hearing on a very important, complicated and timely subject,
which is, of course, how our government classifies and
declassifies information. The question really speaks to the
essence of our democracy, the citizens' relationship to the
government, the accountability of those in power to the
citizenry.
Of course, it is complicated because we are trying to
balance the public's right to know with the government's
concern about information it has which may genuinely be secret
in the sense--at one point, at least--that its disclosure will
adversely affect the national interest, particularly the
national security interest.
The question before us relates to the expectations, also,
that government can reasonably set for itself. What volume and
type of information is it possible to keep secret? Let alone
the earlier question of what kind of information is it
appropriate to keep secret and for how long? What kind of
apparatus do we need to maintain to do so, and at what cost?
What cost is appropriate or are we willing to assume? Of
course, the cost of keeping information secret has got to be
measured in more than financial terms.
One of the costs is the loss to our historical record, to
our collective knowledge as a people. So, it seems to me that
an important goal of declassification is to enable us to
revisit our history with the benefit of new information, to
throw more light on past events that have been cloaked in
secrecy, with the aim of helping us more wisely carry out our
present responsibilities and better prepare us for the future.
It seems to me that it is very sensible then, that as we
rethink all sorts of government regulation and public access,
which is much in the air here in the Capitol today, that we
come back to these traditional questions of governmental
secrecy and declassification guidelines. Hopefully, those
guidelines will be rational and systematic. They will place
authority and accountability where appropriate. They will
judiciously balance public access with authentic secrecy
requirements, and they will be efficient and cost-effective.
The arguments for the least possible secrecy in government,
consistent with our security, are, to me, very powerful; not
least among them is the enabling effect upon Congress, to help
us execute our rightful role in the oversight of government
activities, including national security policy formulation and
execution. But no less important, as I mentioned earlier, is
the public's right to know and the enrichment of informed
public disclosure on issues of vital importance to the health
and future of our country. The community of scholars that will
sift through appropriately-declassified public records will
make a contribution to the public welfare that goes well beyond
academia.
Today, our witnesses are extraordinarily able to contribute
to this dialogue; and, particularly, they will be discussing
the merits of the Public Interest Declassification Act of 1999,
which Senator Moynihan has introduced in the Senate and
Representative Goss has introduced in the house.
We are truly honored and privileged to have these two
colleagues with us. As Senator Moynihan nears the end of his
time in the Senate, I find myself suffering from what
psychiatrists might call separation anxiety. Since I came to
this Senate, if I may be personal for a moment, the Talmud
instructs us, when we come to a new place, to find ourselves a
mentor, a teacher. And, not by his choice, but mine, he became
my teacher. I must say that though I am truly privileged to
serve with an extraordinary group of people here in the Senate,
that there is no colleague that I have learned more from than
Pat Moynihan, and I appreciate that very much, including on
this subject.
I hope you will not think that I have gone too far if I say
this, but if I do not say it, it will always be in my mind. I
was thinking today, coming in, because of the extraordinary
range of Senator Moynihan's experience in government over the
decades, in various executive and legislative activities--
ambassador, Senator--who in American history could I go back to
and try to find comparison. Probably it is because I have been
reading too much lately in the early part of our history, but I
go back to John Quincy Adams and maybe Jefferson. So, I think I
could make a reasonable argument for those comparisons. Anyway,
I look forward to his testimony on this matter, in which he is
uniquely prepared, has served as chair of the Commission on
Protecting and Reducing Government Secrecy which, in 1997,
unanimously delivered an important set of recommendations on
reforming our Nation's system for declassifying and classifying
information.
Also, Congressman Goss is a very respected member of the
House of Representatives, an authority on intelligence matters,
having served for 10 years himself as a clandestine services
officer at the CIA, chair of the House Intelligence Committee;
and I must add--it may seem parochial here, too, but I am being
personal this morning, a native of Waterbury, Connecticut and a
graduate of Yale University. How much better prepared could one
be to assume the large public responsibilities that he has
taken on with such distinction?
So, I look forward to the testimony today and I thank you,
Mr. Chairman, for calling this hearing. I hope that we can find
a way to move this bill and pass it before this session of
Congress ends.
Thank you very much.
Chairman Thompson. Thank you very much. I appreciate your
comments. I think all of our colleagues share your opinion with
regard to Senator Moynihan, and certainly we are delighted to
have Representative Goss also here today, with his wide
expertise.
Who wants to go first?
Senator Moynihan. Mr. Chairman, as we are going to have a
vote, perhaps it could be that our colleague should go first so
he can get back to his chores on the other side.
Chairman Thompson. That would be fine.
TESTIMONY OF HON. PORTER J. GOSS,\1\ A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA
Mr. Goss. Thank you very much, Chairman Thompson and
Senator Lieberman. Thank you very much for the welcome
invitation. Senator Moynihan, thank you for the courtesy of
accommodating our schedule, as well as yours, I hope.
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\1\ The prepared statement of Mr. Goss appears in the Appendix on
page 29.
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Mr. Chairman and Members of the Committee, I am pleased to
testify before the Committee today in strong support of S.
1801, the Public Interest Declassification Act of 1999. That,
of course, is why we are here. Chairman Thompson, you have
described, I think, very well the problems that we confront,
that we are trying to remedy. S. 1801 is a remedy. I think it
is a good remedy. It comes out of the cauldron after much heat
and much consideration, and I think that we need to get on with
it. I, for my side, hope that we are able to move it in the
House, as well, and that is my intent.
Speaking to the bill for a moment and the problem a little
bit--and I have submitted a full statement, which I would ask
be included in the record, and I would try and borrow from it.
Chairman Thompson. It will be made a part of the record.
Mr. Goss. Thank you.
There is obviously a great deal of history on the shelves
out at the headquarters of the Central Intelligence Agency.
Some of it is valiant history, some of it is work-a-day
history, and some of it is just plain embarrassing. All of it
is American history, however. Much of what is on the shelves at
Langley remains sensitive and properly secured in vaults.
In this bill, we in no way diminish the right and the
obligation of the President of the United States and the
Director of the Central Intelligence Agency to protect sources
and methods. I, obviously, take no issue with the bona fide
harm that may befall our country and those who help us overseas
if we get it wrong in matters of national security. This is
serious business.
But much of what is on the shelves at Langley should be
reviewed and considered for declassification, because, as the
Chairman has pointed out, we tend to overclassify, and that is
another side of the problem we need to address down the road,
as well. But the systematic declassification of such documents
over 25 years old is, in fact, ongoing, as we know. The type of
declassification which is done under the executive order is the
most thorough and archivally valid method by which can ensure
that, historically, significant documents can be systematically
shared with historians and, more importantly, with the American
public.
But we can only do that if we get the job done, and the
size of the job is depicted somewhat in some of the displays we
are going to see. The more we are diverted from that job by
other demands on the system, obviously, the less well we do it.
This bill seeks to create an orderly way to handle those
diversions and the very big load that has to be processed.
So, I guess, in a very real sense, the purpose of the bill
is to bring some order to some chaos, because it needs to be
done. At present, however, we have no system by which Congress,
the Executive Branch, and the public can require and expedite
the review for declassification, called special searches, which
I think we are all familiar with, for records of extraordinary
political or public interest. Of course, extraordinary public
interest is a term of art in this bill.
The explosion in special-search requests from the Congress,
the Executive Branch and the American public since 1993 has not
been cost-free. Since becoming Chairman of the House Permanent
Select Committee on Intelligence, I have become increasingly
concerned about the surge in special declassification requests
and the unanticipated costs associated with those requests,
because, indeed, based on testimony we have had from the
community, they mount up and they are sums that could be used
for other things, as well, obviously.
In August 1999, I wrote DCI Tenet, seeking information on
the numerous special searches conducted since 1993. In its
October 18, 1990 reply to my inquiry, the CIA noted, ``Special
searches are a growth industry and compete with the mandates of
many existing information review-and-release programs.'' Simply
stated, each resource directed to a new special search reduces
the resources previously dedicated to an existing program. Some
specific efforts have been deferred in their entirety; examples
include a number of historical reviews previous directors
scheduled for action, other efforts, such as Freedom of
Information, FOIA, requests suffer reduced productivity. That,
of course, is the public we work for and serve.
In some cases, however, Congress, policymakers, the
Executive Branch, and the public cannot and should not wait for
the painstaking declassification of 25-year-old records.
Congress needs information for its lawmaking. Policymakers need
information for their decisionmaking, as we know, and the
public needs information to ensure that its government is
accountable and staying on course. That is doubly true when we
are talking about oversight and intelligence matters, because
that is a great special trust that the U.S. Congress has
bicamerally, to make sure that our intelligence activities stay
entirely lawful and within bounds.
There are several examples in my written testimony which,
in the interests of time, I will pass over, of the problems
with special requests. I will conclude by saying this, the
Public Interest Declassification Act of 1999 before us
establishes a structure by which special searches will be done
once and done right. Declassification needs to be conducted in
an orderly, systematic and appropriately prioritized and funded
program. Declassification should not be subject to an arbitrary
and chaotic political process.
What this bill does is to provide a means by which we can
get important historical information as efficiently as possible
to the American people. In a perfect world, we would overhaul
the entire classification system, and I think that needs to be
done. I believe that we do classify too much material, because
it is the path of least resistance, and I know that from
experience. If I get a piece of paper on my table and I am not
sure what to do with it, I put a confidential stamp on it and
put it in the confidential box, and then it goes in a process
all its own. Then I will not have to worry about whether I
released something that was classified that I should not have.
So, the incentive is to do the wrong thing, and that is
something we have got to get at.
But to do this, at this point, is going to be a little bit
like trying to have the whole meal in one bite. We have got to
do it one digestible bite at a time. We found that out in
previous efforts. S. 1801, I think, is a very important bite.
The Public Interest Declassification Act of 1999 seeks to
provide Congress, policymakers, the Executive Branch, and the
American public with more of the history on the shelves at
Langley, and, in so doing, the bill would also give us more
confidence that what remains on those shelves is the stuff that
truly needs to be protected.
I very much appreciate your attention to my remarks, and I
look forward to working to bring about the passage of this
first step toward a more efficient and more orderly
declassification system that will bring about greater
accountability and transparency by going to the device of this
Public Interest Declassification Board, and the legislation
speaks very clearly for itself, I think, as to what is at
stake.
Before I finish, I simply want to pay my very deep respects
to my colleague from New York, who I have the greatest
admiration for. I think we are allowed mentors in the House,
too; and I think we are allowed to trespass slightly. I would
say that the energy, the experience, the erudition and, of
course, the wisdom that I hope some of which has rubbed off on
me in the process of this undertaking, coming from Senator
Moynihan, is well understood by his colleagues and those of us
in the House who have the privilege to work with him, as well.
I thank him very much for his courtesies and help.
Mr. Chairman, I would be happy to answer any questions.
Chairman Thompson. Thank you very much.
We have, I think, about 10 minutes are left on the votes.
If we might, I suggest we just pose a question or two to
Congressman Goss, and then we three Senators come back. Is that
satisfactory?
Senator Moynihan. Sure.
Chairman Thompson. Congressman, just basically and quickly,
could you state what you perceive to be the primary benefit of
establishing this Declassification Board? Obviously, many
people would like to go much further, and give the board much
more authority. Some people say that the board might even
create additional burdens beyond the ones we have now. How do
you see this board operating, to help strike this balance that
we have been talking about?
Mr. Goss. Simply, I think it will bring order by
prioritizing requests. I expect that this is going to be a
board of people who know what they are about. That is very much
the intent--requirements and all of the details that goes in
there, how we get this board. I think it is very important. I
think once we have done that, we have created, in effect, a
filter that is going to work to process these requests. There
are, obviously, huge redundancies, and some of the examples I
did not mention in my testimony; but it is in my written
testimony.
I can give you examples of special access requests that
members of Congress have piled on top of each other when a
subject of what I will call headline interest has come across
the scope on the evening news. I can think of one case where we
had nine special requests. Well, obviously, the information is
there and everybody may have a different approach to it. But we
did ask one board to sort those out and to focus on how
important that really is relative to all of the other things
that the process is doing in declassification, because we have
much more to do than we have capability to do at this time.
Chairman Thompson. Is there reason to believe that the
Executive Branch or Congress would honor that analysis by the
board?
Mr. Goss. I would believe so. I think we have the ground
rules built in here. We have, basically, a scenario worked out
in this bill that appears to me to be very practical; and I
think that the board will have, certainly, accountability. I
think it will have the opportunity, if it feels it has been
wronged or its decisions have been wronged, to bring that to
the attention of higher authorities and, certainly, to the
public. So, I feel the accountability piece is very well
answered.
Chairman Thompson. Thank you very much. Senator Lieberman.
Senator Lieberman. Thanks, Mr. Chairman. Representative
Goss, based on your own work as an intelligence officer and
your work as the chair of the House committee--and I know this
is a big question--but would you say that we are classifying
too many documents today?
Mr. Goss. Yes.
Senator Lieberman. That was a shockingly direct answer, and
I appreciate it.
Mr. Goss. Well, I thought that was a very simple question.
[Laughter.]
Senator Lieberman. It is. The second question, on documents
of 25 years or older, do you think just inherently or
automatically we ought to be declassifying all of them or
almost all of them?
Mr. Goss. No.
Senator Lieberman. No?
Mr. Goss. The reason is very simple; 25 years is an
arbitrary number. I can tell you right now that, in my
experience, people I was working with who were still active
more than 25 years ago could be seriously embarrassed or,
perhaps, put in danger if certain documents were improperly
declassified. It would be possible, perhaps, to publish or put
out or make available to the public a heavily-redacted
document; but it would be a meaningless document. I think 25
years is an arbitrary number and I think it is a guideline and
should not be slavishly adhered to.
Senator Lieberman. But you think that the commission that
would be created under the legislative proposal would be
capable of creating some guidelines that would allow us more
efficiently and cost effectively to sift our way through
documents.
Mr. Goss. I really do. That, as far as I am concerned, is
the purpose of this. We could leave the system the way it is,
and everybody will be unhappy with it, because it is a push-
and-shove. It is who has the sharper elbows to get in. If
somebody has more clout or a chairmanship that is a higher
priority, and that is the special request, that is probably the
one that will end at the top until maybe the National Security
Adviser comes in and says, ``I need this now.''
It is not a good system. Now, nobody is taking away
prerogatives, but everybody is trying to organize them in a
more sensible way. The other option is to throw millions more
dollars at this thing and hire a whole bunch more people and
try and declassify. We have already done that. We are spending
a large part of our resources on this. It seems foolish that we
are out there spending money on paper trails when there are so
many other needs going unmet. But history is an important part
of this, and we need to spend money on that to a reasonable
degree.
Senator Lieberman. Thank you. That is very helpful
testimony. Thank you for coming over.
Chairman Thompson. Thank you very much, Congressmen Goss.
We will be in recess to give us an opportunity to vote, and we
will hurry right back.
Mr. Goss. Thank you, Mr. Chairman.
[Recess.]
Chairman Thompson. Senator Moynihan, perhaps we should get
started again.
Senator Moynihan. Well, thank you, Mr. Chairman. As you
know, there is a second panel that awaits you, and I do not
think I should delay them.
Chairman Thompson. All right. If you would then proceed,
please.
TESTIMONY OF HON. DANIEL PATRICK MOYNIHAN,\1\ A U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator Moynihan. Sir, I have only a few things to add to
the excellent statement from Chairman Goss, who is determined
to see this legislation through. To give an example of what
bedevils the system, one at the trivial end and the other at
the very serious end, about 3 or 4 years ago, I received a
letter from a professor at a midwestern university who was
writing a history of the Librarian of Congress.
---------------------------------------------------------------------------
\1\ The prepared statement of Senator Moynihan appears in the
Appendix on page 34.
---------------------------------------------------------------------------
She said she had reason to think that President Ford had
once offered me this position, but that the matter was
classified in the Ford Library. They had some material, but
they needed my permission. Well, yes, and what was classified,
sir, I was an ambassador to India. On my way back, I was going
to stop in what was then Peking and stay with our
representative, George Bush, and Mrs. Bush. Then I was going to
stop at Pearl Harbor and work out some things, make my way back
to the United States.
So I cabled the White House, the Director of Personnel, and
said, ``These are my travel plans, and I will be in the States
on such-and-such a date, and I will call you.'' Well, that was
stamped secret. I can see that it is perfectly sensible to keep
people's movements in strange parts of the world secret while
they are moving. But, 20 years later, it is not a secret. It is
well-known that I made it back, and we had to have a classified
cable system, which this matter was put on the cable. In the
Ford Library, this cable was sent to the Department of State, a
classified officer received it, looked at it, checked it out
and declassified it.
Now, please, that is what, of those 612 million pages,
about 600 million are of that kind of information. Most of
these were sensibly classified, but they have a very short
time-life, half-life. In truth, about 12 million should still
be classified. I mean, there are people you know who have been
working with you for years in other countries, and they live
longer than you might think.
In our original proposal from the commission, which was
incorporated in S. 712--you were very generous in that regard--
we had an idea that seemed to us central, which was that the
person who classified a document would put his or her name on
it, and, at that point, say how long it was to remain
classified, a judgment that could be changed later on, but you
would know.
Now, it is completely anonymous and it never stops. On the
other end of the serious spectrum, you know about our work on
the Venona decryptions. Incidentally, sir, this is the largest
revelation we have ever had about the Soviet espionage during
and after World War II. I mean, it is just extraordinary to see
it. It was requested by the Director of the National Security
Agency and by the Director of Central Intelligence. The whole
declassification took 19 days. When you want to do it, you do
it. When it does not happen, it has got somebody that does not
want it to happen--19 days for this.
In the aftermath of--and this was done at the request of
John Deutch and was very profoundly influential on our
commission study--in the aftermath of that, I found myself
wondering how could it be that President Truman seemed not to
know of this? By 1946, the Army security agent broke the first
of the Venona decryptions. They had different code names. Bride
was an earlier one. It was just, I mean, knuckle-whitening
work. You did it with pencil and paper. You were working on
one-time pads.
I was in the Navy half-a-century or more ago, and had the
one-time pads for our ship. You cannot break them. But the
Soviets got overconfident or overworked, and they began using
some of them twice, and an absolutely extraordinary man named
Meredith Gardner, who lives out on Connecticut Avenue--his mind
is as clear as Easter bells--he was over in Arlington Hall. On
December 10, 1946, he broke the first cable. They are the names
of all the physicists at Los Alamos.
Now, standing over him, sir, providing him with sharpened
pencils and cups of coffee and so forth was a ciphers clerk and
Army corporal, a KGB spy. From the instant we broke the first
cable, the KGB knew. Then came the time when, Kim Philby knew
of this material. We shared it with the British; and, of
course, he shared it with the KGB, then he defected. So, then
we seriously knew that the Soviets knew.
So, we were in a situation where we know that they know,
and they know that we know they know. The only person who did
not know, sir, was the President of the United States. As best
we can tell--you cannot prove beyond a doubt--but we have
documents in which the orders come from the newly-created
Chairman of the Joint Chiefs of Staff, Omar Bradley, that only
he would tell the White House about this matter, and nobody
else was to. The FBI was not to. CIA was not. He would.
This was not political. It was just organizational. He was
friends with Truman. They were both boys from Missouri, in the
Army. After all, Roosevelt was always ordering up new
battleships, and Truman was OK, but, this was Army property. I
mean, that is just the structural mode that produces this
morass, and it can have huge consequences.
Some years later, I was an aide to Averell Harriman, who
had been very much involved in all of those things, and I know
for--I mean, I cannot say I know for a fact--but he had no idea
we knew any of these things. If that is the case then, what is
the case now? You want to make it a more open system so that
the people in government get the information they need, not
just the public. That would be my point.
As you know, we had a much stronger bill last time. You
reported it out, and suddenly the administration, which had
been part of our commission's work, turned against it. That is
to be predicted. It will not change unless we change it. Your
point was very well made. Apart from atomic energy information,
all of the declassification system is based on executive order.
I have talked to some of the people in the early days, and the
secretaries just had different stamps in their drawer. They
would look at something and they would say, ``Well, it sounds
secret to me,'' or ``It is top secret.'' There was never much
real thoughtful statement of how you decide which and so forth.
There is not today.
I think the commission that we are proposing, qualified
persons, cleared, will be the first effort by Congress to say,
``Get yourselves together and stop adding too much to the
system, and somehow work at declassification.'' Realistically,
you have a 50-year problem here, and I do not know whether we
ought to do anything about it; but, certainly, we can start
slowing down the accumulation.
That, sir, would be my judgment, and I would be happy to
answer any questions.
Chairman Thompson. Well, thank you very much.
I wish we could take a good part of the rest of the day and
just listen to your rendition of history with regard to these
matters. I found it very interesting and enlightening. In
listening to your accounting of the situation with regard to
the Chairman of the Joint Chiefs of Staff and the President, I
am wondering the extent to which we have a problem that is
based on regulation and official practice, on the one hand, or
whether it is one just based on human nature, or perhaps
bureaucratic human nature.
Surely there was some other reason why President Truman was
not given this information, I would think. Surely there are
reasons other than just bureaucratic quagmire as to why these
things are treated the way they are. Of course, I know you do
not claim that this legislation is the cure-all for such
problems--but you do feel that it is a step in the right
direction, as I do.
But I am wondering whether or not you agree with the
assessment that a lot of these problems just have to do with
the way people are in government, perhaps, and the need for
better leadership. Until we have someone from the top really
cracking the whip on these things, are we going to do much
good? How you envision this legislation will begin to push us
in the right direction? Could you elaborate on that?
Senator Moynihan. Well, nothing very cheerful. We do have
some social science, if you do not mind, on the subject. Max
Weber, who was one of the founders of sociology, German, turn-
of-the-century, his study was bureaucracy, which was something
new. They did not have that in the old days. You had uncles and
cousins and friends. They did not have examinations, and so
forth. He said right away that secrecy is the primary weapon of
the bureaucracy.
They keep information from the parliament and they will
keep it from the executive. That is their strength. The pattern
goes on. The fact is that the Truman Library, sir, has no trace
of any of this information, and they had all the White House
papers. People like David McCullough, who wrote that fine
biography, never heard of Venona. I called him up--Venona--huh?
That should not be decisive, because that name came along a
little bit later. But Bride was one of the other names, and
they have none of that, either.
With the Soviet situation, we did wrap up that whole Soviet
apparatus by about 1948, but it was the nature of the
activities that you could not go to court with it because you
would have to tell how you knew. But Mr. Weisband was convicted
of traffic violations or something; I mean, never really--got
him out of the Army, as it were. But the government had reason
to be satisfied that they were OK; that the Soviet system
really dates from the 1930's, and it was disappearing fast, as,
indeed, it did in Britain, too. France, I am not so sure.
So, the general may not have felt that there was any need
to give it to the White House, because it was all done. And he
would be pretty sure, if he gave it to the White House, that
somebody in the White House would give it to Drew Pearson, and
that is part of our life, too. But I would have to say sir, and
I will close, do not expect a President to get interested in
this. Presidents live day-to-day. They have a short tenure.
Structural issues of government just do not absorb them. They
give that to the Vice President, and the Vice President does
not have much luck getting it done.
That is not very helpful, but I think a group of informed
persons, working with ISOO, our Information Security Oversight
Office, has done a good job. We have the wherewithal. I think
this legislation would very much help, and I thank you for the
opportunity and your courtesy.
Chairman Thompson. Well, thank you very much. I mean, you
obviously set forth a problem, and I am sure that there are
very few members of Congress that really fully appreciate the
problem, much less the American public. Thank goodness we have
some people that pay attention to these kinds of details and
follow those things that are happening which, as you point out,
have consequences. One of the consequences, by the way, is that
all of these searches are eating into mission function for some
of these agencies. They are spending time doing this instead of
doing something else.
So, you have the overclassification to start with, which
means that you have more documents to deal with than you should
have. Then you have the regular 25-year process, with a lot of
resources devoted to that, and then you have the special orders
on top of that. Basically, there is no one person or no one
entity with any oversight or any ideas as to how to coordinate
all of that. Now we are becoming immersed in paper, and this is
just the tip of the iceberg, I suppose. Because of modern
technology, it is going to get worse, instead of a lot better.
Senator Moynihan. Yes.
Chairman Thompson. One of the criticisms that has been
raised is that perhaps, under this bill, the proposed board
would be able to make recommendations to the President to
declassify records in response to the interest of the public in
a national security matter. Does this mean that the board
itself could end up becoming the source of additional special
search requests?
Senator Moynihan. Well, I would hope that legislative
history would make it clear that we do not intend that. That is
one of the problems we are trying to deal with, and this board
has no power of its own to declassify anything. When you say
they will recommend it to the President, what you mean is they
will recommend it to the National Security Adviser. Every so
often, some things may come along which should be opened up.
Sir, put it this way, more is at issue here than the efficiency
of our bureaus and agencies.
A majority of American people, the American public, think
that the CIA was involved in the assassination of John F.
Kennedy, and that was before that movie which showed it
happening. I was in the White House in that Southwest Room,
just down the hall from the Oval Office, with about eight
people when the word came the President was dead. Pretty dicey
moment. Half the Cabinet was in a plane crossing the Pacific on
the way to a Cabinet meeting with the Japanese; the President
and Vice President in Dallas.
In the afternoon, we picked up on the news that the Dallas
police had arrested a man who was known to be involved with
Fair Play for Cuba. I met the Cabinet plane that arrived. They
just turned around and came back to Andrews that evening, and I
stood there at the bottom of the ramp, saying, ``We have got to
get hold of this man. He will not get out of that jailhouse
alive. The FBI has to go in there or the Secret Service and get
him; and if we do not get him, what will we have? A conspiracy
theory we will live with forever--I mean, for ages.''
Then he was shot--Oswald. Then the President appointed the
Warren Commission. I went around, seeing people on the Warren
Commission. I had with me a just-republished volume, about 5
years earlier, of the 1880's, which demonstrated that the
Jesuits had been behind the assassination of Lincoln. A century
gone by, it was still in circulation. I said, ``Do you want
more of this?''
We do not. But the Warren Commission kept its papers
classified. You could start weeping at this. It matters that
people do not trust government. I do not have to tell that to
you, sir. Sorry. I do not want to get carried away. We have
some important witnesses to hear.
Chairman Thompson. Well, what you are saying, though, is
very, very important. Thank goodness you have other outlets and
forums other than this to speak about this. I know you will
continue to, and I hope that you will, because what you have to
say on this subject, as well as many others, is something the
American people need to hear. So, thank you so much for your
service. Thank you for this, and thank you for being here today
with us.
Senator Moynihan. Thank you, Mr. Chairman.
Chairman Thompson. Thank you very much.
I would like to recognize our second panel of expert
witnesses. Steven Garfinkel heads the Information Security
Oversight Office at the National Archives. Steven Aftergood is
the Director of the Project on Government Secrecy at the
Federation of American Scientists. Dr. Warren Kimball is the
Robert Treat Professor of American History at Rutgers
University and the Former Chairman of the Foreign Relations of
the United States document series. James Woolsey--and I do not
believe Mr. Woolsey is here yet--is the Former Director of the
CIA.
Gentlemen, thank you very much for joining us here today.
Please proceed to make any opening comments that you would care
to make.
Mr. Garfinkel.
TESTIMONY OF STEVEN GARFINKEL,\1\ DIRECTOR, INFORMATION
SECURITY OVERSIGHT OFFICE, NATIONAL ARCHIVES AND RECORDS
ADMINISTRATION
Mr. Garfinkel. Thank you, Mr. Chairman. I am very pleased
to appear before you today to express strong support for the
enactment of the Public Interest Declassification Act of 1999,
as that legislation has been modified to meet the concerns of
the administration. I speak on behalf of the administration,
and from my perspective as Director of the Information Security
Oversight Office.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Garfinkel appears in the Appendix
on page 60.
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My support arises from my belief that the establishment of
the Public Interest Declassification Board could not come at a
more propitious time. Under the policies of Executive Order
12958, issued in 1995, the agencies of the Executive Branch, to
their great credit, have declassified many hundreds of millions
of pages of classified information.
I call to your attention the chart that is attached to my
statement,\2\ and now posted as an exhibit, which illustrates
the enormous progress we have made to date and the challenges
that remain. To many interested observers, this progress in
classification, while laudatory, is only the beginning of what
needs to be done to make available to the American people those
heretofore-secret archives of governmental activity.
---------------------------------------------------------------------------
\2\ The chart referred to submitted by Mr. Garfinkel appears in the
Appendix on page 66
---------------------------------------------------------------------------
To other observers, declassification has proceeded at too
rapid a pace, outstripping our ability to be certain that we
are not opening up information that needs to remain classified
in order to protect our national interests, and at a cost that
is too expensive to maintain on an annual basis. The
establishment of the board offers the opportunity, at a modest
cost, for a panel of experts to provide its immediate and
continuing evaluation of these policies and their
implementation.
The timing could not be more critical. In January 2001, a
new President will take office. Because the security
classification system has historically been based upon
executive order, the new President will very quickly receive
conflicting advice about what should be done with respect to
the policies of Executive Order 12958. The existence of this
board of experts suggests that any action that the President
ultimately takes will benefit from a reasoned and reasonable
analysis of the myriad options that will be urged upon our new
President.
The creation of the board portends another positive
development, a more objective analysis of special
declassification projects before they are enacted. While each
of these programs may be argued to be in the public interest,
each also has a negative impact. Most significantly, the
diversion of tremendous resources away from programs like
systematic declassification and Freedom of Information actions.
I am not suggesting that all special declassification
programs should be avoided. What we should try to avoid,
however, are situations in which the interests of the few take
precedence over the interests of the many. The board will be
particularly well-suited to provide its expertise on these
matters.
The board should also contribute significantly to
classification management and policy. We remain in a
transitional period between the Cold War era and the post-Cold
War era as far as our national security policies go. Moreover,
we are in the midst of a technological revolution whose product
is greatly enhanced public access to information. The policies
and decisions that we are making with respect to security
classification are now more difficult and problematical. The
board's insights will bring a welcome perspective to this
complex environment.
Mr. Chairman, as I stated above, the establishment of the
Public Interest Declassification Board could not come at a
better time for providing expert advice on the controversies
inherent in government secrecy and classification-and-
declassification policy. Over the past several years, the
board's input would, in my view, have been most welcome and
helpful; for example, when the Congress considered the impact
of our declassification program on the protection of
information classified under the Atomic Energy Act; or when the
Congress and the administration have considered the
establishment of new special declassification projects; or as
the Congress now considers legislation that would establish a
new criminal provision for the unauthorized disclosures of
classified information. As a new Presidential administration
assumes office, such examples will surely multiply. Therefore,
on behalf of the administration, I most strongly recommend your
positive action on S. 1801.
Chairman Thompson. Thank you very much. Mr. Aftergood.
TESTIMONY OF STEVEN AFTERGOOD,\1\ DIRECTOR, PROJECT ON
GOVERNMENT SECRECY, FEDERATION OF AMERICAN SCIENTISTS
Mr. Aftergood. Thank you very much, Mr. Chairman. Thank you
for holding this hearing. In the 2 years since this Committee
last dealt with government secrecy, government secrecy policy
has not been standing still. Unfortunately, in some important
respects, government secrecy has actually been increasing. For
example, 2 years ago, in fiscal year 1998, the total
intelligence budget was unclassified. This year, it is a
classified national security secret.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Aftergood appears in the Appendix
on page 67.
---------------------------------------------------------------------------
Why should that be so? I am sure there is an explanation. I
doubt, however, that it has anything to do with national
security. At the same time that secrecy has been increasing in
some respects, it has also been growing less effective in other
respects. One important example, I think, is the history of the
Central Intelligence Agency's 1953 covert action in Iran. That
is a 200-page document that was ordered declassified, I
believe, by DCI Woolsey back in 1993.
Last year, the CIA testified in a Freedom of Information
proceeding that the entire history had to remain classified,
with the exception of one single sentence. Fortunately, in my
view, the entire document was then leaked to the New York
Times, which published it on the Times website. I think just
about any independent observer would agree that the CIA's
classification judgment--and it was a judgment, it was not a
matter of failure to deal with it or lack of resources--the
CIA's classification judgment was in error.
At any rate, what we are seeing is a growing number of
leaks, more voluminous, more substantial. So, there is
certainly a role for congressional action on this front; and
although I personally have been a little bit disappointed by
the diminishing scope of the successive versions of this
legislation, I still believe that it could potentially play a
very important role.
I would say that, unlike some of the other panelists, I do
not consider the prioritization of special searches to be a
very important function at all, particularly given the fact
that the board will not be able to enforce its recommendations.
I just do not think that is a very important function.
I think, however there are at least a couple of other
functions that are very important and that this bill would, as
written, help to advance. The first is that the proposed board
could serve as an independent, internal Executive Branch
advocate for the kind of secrecy reform that I think everybody
agrees is necessary. The board could advance the proposals of
the Moynihan Commission. It could monitor the implementation of
the executive order. It could point out problem areas. It could
develop bold new ideas of its own and float them within the
Executive Branch. It could advocate funding for
declassification in the budget-development process.
A second sort of parallel mission area for the board would
be to monitor the development of secrecy policy within
Congress. There has been lots and lots of secrecy policy
development in the form of legislation just in the last 2
years. More often than not, it is never subject to public
hearings. Nobody gets a chance to comment on it. This board, I
think, could play a useful role in monitoring the development
of secrecy-related legislation in offering an independent
judgment on what is wise and what, perhaps, is less wise.
Those are very useful functions, and they do not currently
exist to the extent that they might; and, for those reasons, I
think there is sufficient justification to proceed with this
legislation. I would respectfully recommend that it be adopted.
Thank you.
Chairman Thompson. Thank you very much. Dr. Kimball.
TESTIMONY OF WARREN F. KIMBALL,\1\ Ph.D., ROBERT TREAT
PROFESSOR OF HISTORY, RUTGERS UNIVERSITY
Mr. Kimball. Thank you, Mr. Chairman. I appreciate the
opportunity to speak to the Public Interest Declassification
Act of 1999. I first do want to assure you that the decoration
on my nose did not come about as a result of hand-to-hand
combat on a declassification issue.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Kimball appears in the Appendix
on page 73.
---------------------------------------------------------------------------
At any rate, I really do believe that this legislation
would be in the national and public interest. It is my firm
conviction that this act, and the board it would create, will
improve our ability to protect important national security
information. At the same time, it will promote public
confidence in government by maintaining an expanding knowledge
of the history of how national security policy was developed
and implemented.
Moreover, the legislation takes a significant step toward
cutting the excessive costs of maintaining the security of
classified information. How does the bill accomplish all of
that? I mean, is it nothing more than a piece of innocuous
legislation that just follows the Hippocratic Oath: Do no harm?
If it is just like chicken soup, you know, might help, cannot
hurt, then why create another government board that may live
long after everyone has forgotten why or even that it exists?
Were that the case, I would oppose creation of the board as
a piece of smoke-and-mirrors that only distracts from effective
reform of our government's declassification programs. But that
is not the case. The Public Interest Declassification Board
will inform and improve the healthy debate over what should and
what should not be kept secret. The board would also help to
limit the plethora of special searches, those boutique
declassification efforts that devour resources that should go
to systematic declassification review.
Some of those special searches have been legitimate. Some
have been trivial. Many have been repetitive and unrewarding,
as illustrated in some of the exhibits before you. All have
been exorbitantly expensive in both money and work hours. All
were or should have been unnecessary. If effective, routine,
comprehensive systematic declassification review were in place
for all agencies, and if the public believed in the integrity
and thoroughness of those review processes, then important
documentation, such as what was uncovered by the Nazi gold
search, would be routinely reviewed and declassified without an
expensive special search.
The board established by this legislation will be able to
foster the development of effective, comprehensive systematic
declassification review programs for historical documentation
by gathering information on best practices and by reporting on
progress made. At the same time, the board would assess the
effectiveness and reasonableness of an agency's
declassification review program and recommend remedies for
shortcomings, thus building public confidence in the process.
But until that effective government-wide systematic
declassification review exists, special searches will and
should continue to be proposed, so long as there are legitimate
and important reasons. But how can Congress and the White House
best decide which specials will be legitimate and which will
release important new information in which will not? How can
the public--media, researchers, pressure groups, individuals--
be assured that their government is not hiding the truth for
the wrong reasons? The answer is provided by this bill.
The Public Interest Declassification Board could and should
study any proposed special search, evaluate the results of
similar previous declassification efforts, examine the still-
classified documentary record, and then report to the President
and Congress. Mr. Chairman, you asked earlier why we should
think that this board would be listened to, and I think that
kind of a process that I outlined would give the board such
credibility that, I think, Congress and the Executive Branch
would heed it.
In any event, that would provide Congress and the Executive
Branch with a validation from an independent public board of
the legitimacy of the request, and provide expert advice on
establishing priorities for those specials that should be
implemented. I spent 23 years in the Naval Intelligence Reserve
and have been a member of the State Department Historical
Advisory Committee for 9 years, 8 years as chair. I have come
to appreciate the complexity of declassification issues, even
for historical information that is 25 years old or older.
So, before going any further, let me emphasize two points.
First, this legislation does not change the current approach to
systematic declassification review, which is aimed at
historical records that 25- and 30-years-old. It is not aimed
at current plans, operations, and current intelligent
activities. Second, declassification review is not the same as
declassification. Nothing in this bill changes the current
practice that puts declassification decisions in the hands of
the agency that has ownership or equity in the information.
Nothing in this legislation threatens to change current
information security procedures. Special compartmentalized
intelligence, SCI, is, quite appropriately, given special
attention; nor can the board declassify anything. It can only
examine, assess, advise and report.
Sensible, practical standards and guidelines for
declassification review can be and have been established. Since
the early 1990's, systematic declassification review by the
State Department has opened up 95 percent of its historical
records. Using the most-important-first, rather than an
easiest-first approach, State Department reviewers have opened
highly sensitive records of our diplomacy, as well as
intelligence records, all without a single reported breach of
national security.
As an aside, to dispel rumors of security breaches caused
by the systematic declassification review program currently in
effect, the head of the Department of Energy's Information
Security Program has stated that he has not uncovered any
inadvertent disclosures of classified information due to the
systematic declassification reviews conducted under the current
executive order.
Yet, with only one exception--the Air Force has put a
successful program in place--the State Department is the only
major agency or department that has reviewed and declassified,
where appropriate, its historical records and made them
available to the American public. During the now-ended Cold
War, foreign and national security policy became the
responsibility of a great many agencies and departments outside
of the State Department, yet those agencies have not
implemented similarly successful declassification review
programs. That means that Americans and the representatives in
Congress do not have comprehensive access to the record of
national security policy from 25-and-more years ago, at the
time when Gerry Ford was President.
Perfection is the enemy of progress. No declassification
review system can be perfect. To try to do so would be neither
possible, nor desirable. The cost alone would be staggering,
the effect on our democratic society even greater. Democracy is
not a suicide pact. No one wants properly-classified
information to be inadvertently released. But there is little
risk of that happening when declassification review programs
are applied, with the rigor of that implemented by the State
Department.
This bill would not create instant public accountability
for intelligence agencies, the Department of Defense or even
the State Department. Individuals will instinctively try to
cover embarrassment, unethical conduct and foolishness by
classifying the information that exposes their conduct. But if
we can move a step closer to opening the historical records to
the scrutiny of the American public, we will have won a battle
in what is an ongoing struggle.
At some point, the door must swing open wide enough or the
very democracy that government officials and intelligence
operatives are protecting is no longer a democracy. These are
serious issues for the republic that are worth an informed,
responsible debate, something the Public Interest
Declassification Board can facilitate. I have lots of guesses,
I think reasonably-educated guesses, as to why there are not
fully-implemented, systematic declassification review programs
in all the agencies. But that is something that this Public
Interest Declassification Board could help to create and could
study the issue and provide careful, well-researched answers
and recommendations for remedies.
I have proposed three small amendments to the bill, Mr.
Chairman that I will not go over here; but, fundamentally, they
are specifically designed to improve the credibility of the
board, because it seems to me that if the board is to function
effectively, it must have the confidence of the public that it
is independent. I should say that the American Historical
Association and the Society for Historians of American Foreign
Relations have both gone on record very strongly as favoring
systematic declassification review. I strongly endorse this
legislation as a meaningful step in the further development of
a rational, responsible, cost-effective, government-wide
program for the declassification review of that mountain of
historical documentation that threatens to bury us.
To quote you, in your opening statement, ``If everything is
classified, there are no secrets.''
Thank you.
Chairman Thompson. Thank you very much. Mr. Woolsey.
TESTIMONY OF HON. R. JAMES WOOLSEY,\1\ SHEA AND GARDNER, AND
FORMER DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY
Mr. Woolsey. Thank you. Mr. Chairman, with your permission,
I would submit my testimony and summarize just briefly from it
in these oral remarks.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Woolsey appears in the Appendix
on page 79.
---------------------------------------------------------------------------
Chairman Thompson. It will be made a part of the record.
Mr. Woolsey. It is an honor to have been asked to testify
before you on S. 1801. Let me say that, first of all, although
the tools that are proposed by this bill are relatively modest,
it seems to me to be a positive attempt to begin to come to
terms with one of the most vexing problems in this important
field of government secrecy, the issue of special searches. In
time, it seems to me that it might be considered by this
Congress that this board should undertake other duties and
responsibilities. But this is, at least, a useful and important
beginning, it seems to me.
I also believe that it is the beginning of wisdom in this
area, to recognize that there is a need both for reform, on the
one hand, and for caution and experimentation on the other.
This bill seems to me to be crafted in that spirit. Reform is
important because, in many ways, I think the system is broken
and soon will be even more so, as the digital age adds reams of
new records, E-mails to mention only one.
It is obvious that much of this classified material would
be useful to historians and other citizens for a range of
important purposes, but it is also equally obvious that some of
it was improperly classified in the first place. I have had two
recent examples; one, I ordered the declassification, as Mr.
Aftergood said, of a number of files on covert actions during
the Cold War, when I was DCI in 1993 and 1994. Some of that
material has been released. Some of it, it was said
subsequently, did not exist any longer in the government's
files. Some, I had remembered, regarding with Iran, had been
lost inside the government. But Mr. Aftergood, I am sure, is
correct in saying that it was intentionally withheld.
In any case, once it was released through a leak, after
reading it, I can see no good reason why that fascinating
history of the 1954 coup in Iran had not been released. I am
sorry it had to be released through a leak, but I think
substantively it was a good thing for history, for people to
understand what actually happened.
Also, I have recently represented several Iraqis in an
immigration case in which the men were imprisoned because
secret, classified evidence was introduced unilaterally by the
government. After several influential Senators wrote to the
Attorney General about this matter a couple of years ago, the
government, in effect, said ``whoops'' and released about 90
percent of the evidence that it had previously classified,
saying that it had been improperly classified; yet six men
spent 2 years in prison and two men are still there, in no
small measure because of this improper classification. So, I am
personally acquainted with a number of cases in which I think
classification has been excessive.
On the other hand, there is good reason for the government
to be cautious with the release of some types of information,
and it is not only the operational files of the Deputy
Directorate of Operations or Special Compartmented Information.
Frequently, material, not only direct operational material, but
other intelligence, must be protected for many decades, not
only 25 or 30 years, because often the substance of what is
known about a foreign government or the time at which it was
known can indirectly lead to the betrayal of, for example, an
agent's identity or a broken code; and these sorts of things
have to be assessed carefully by experts.
Most importantly, much of what the U.S. obtains in
intelligence is obtained through liaison relationships,
essentially trading intelligence with foreign countries; and
those valuable relationships will dry up if we release
material, even 25 or 30 years or more after the fact, without
the permission of that Foreign Intelligence Service from which
it was obtained. I dare say that any American who was a tourist
in Jordan at the beginning of this year and whose life might
well have been saved by the very professional and cooperative
Jordanian intelligence actions that thwarted terrorist actions
against American targets at the beginning of the year, would
probably not be an advocate of releasing material received from
Jordan without Jordanian consent, thereby undermining U.S.-
Jordanian intelligence cooperation in the future.
Because of the complexity of these judgments and issues, it
seems to me that reforms need to be very carefully considered.
In my judgment, they should not be based generally, at least in
the intelligence area, on broad and automatic rules, such as a
certain number of years since a document was created. They need
to be tailored carefully to protect what has to be protected
for sound reasons, and also to release whatever else can be
released as promptly as possible.
In this overall context, it seems to me that the Public
Interest Declassification Board established by the bill is a
positive step. As I said, its role may change over time, and it
needs to accustom itself, it seems to me, to experimentation,
trial and error. Special searches have certainly been overdone,
but they can, from time-to-time, be valuable tools. The board
will not be able to achieve an appropriate balance, even on
this issue, on its own, because it can only make
recommendations. But even some cutting down of duplicative
searches will be a step in the right direction for the very
hard-pressed professionals in the agencies who are trying to
deal with this problem.
I finally would say, Mr. Chairman, that I believe it would
be useful, as Professor Kimball suggested in his written
remarks, for the board to meet at least two or three times a
year and to consist of persons other than current officers or
employees of the U.S. Government. I would also suggest that it
be selected with an eye toward diversity of experience. There
should be both historians, for example, and former intelligence
and military officers; for it is only out of debate about this
type of very difficult subject--debate between people of
goodwill who both have something to teach and the humility to
realize that they also have something to learn--that we are
likely to get any useful recommendations for improving the
current, very unsatisfactory system.
Thank you, Mr. Chairman.
Chairman Thompson. Thank you very much, Mr. Woolsey. Thank
you all.
Mr. Aftergood, I know that you are a strong advocate of
more government openness. I wonder how you view this discussion
concerning special searches. Many people, including some of our
witnesses, have argued that special searches actually cause
harm by draining resources from other declassification budgets
and occupying manpower and so forth. Do you agree with this
critique of the special search process? To what extent do you
oppose or support what is happening now--especially Congress'
actopms--with regard to special searches?
Mr. Aftergood. A couple of points. I generally favor a
systematic approach to declassification. I think that is the
most efficient and most equitable means to meet the needs of
the largest number of people. On the other hand, there are
cases, as Mr. Woolsey pointed out, where special searches can
be the most appropriate means to address particular, urgent
information needs. So, the answer is balance; a balance has to
be struck. There is a need for discipline, not simply in the
Executive Branch, but also in the Congress.
Congress should not be asking for things that it is not
prepared to fund. The current proposal is not entirely
satisfactory to me, because it basically is limited to
recommendations; and if people have a powerful constituency
behind them that are pushing for a special search, then the
recommendation of a board, no matter how distinguished, is not
going to be enough, I think, to neutralize that political
pressure. So, balance is the answer. I think, with or without
the board, a balance will be found.
Chairman Thompson. Well, obviously, a board is not going to
solve all of our problems.
Mr. Woolsey, I wonder what you think of that. Clearly, you
have mentioned some instances here where special searches are
in order and the only way to get to the bottom of some of these
matters that need to become public. On the other hand, of
course, we seem to be inundated by a bunch of maybe less-than-
meritorious special searches. How should we be dealing with
this?
Mr. Woolsey. I would hope that the board's recommendations
would help the Congress and other sources of special searches
to limit those searches to circumstances where they really are
necessary and to stop the redundancy. There have been a number
of these areas that have been searched many times. I realize
the board does not have the power to do that, but if it is
sufficiently prestigious and is listened to, it may have some
influence.
Chairman Thompson. Excuse me. Senator Moynihan had some
charts,\1\ I believe it is his charts, where showing that with
regard to certain issues in El Salvador, there were 9 special
searches; for Guatemala, 12; and for Honduras, 7--all under the
category of ``repetitive.'' Is that what you are talking about?
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\1\ The charts referred to submitted by Senator Moynihan appear in
the Appendix on pages 43-59.
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Mr. Woolsey. That is it exactly. The problem is these
issues become politically salient, and a number of different
people, basically, want to say, ``I have ordered a search,''
So, we get a lot of redundancy, and that is not a good use of
the time of the professionals who have to do this. As I said,
in the intelligence area, I think a rule-of-thumb is dangerous,
especially if that rule-of-thumb is one that is measured in
years.
Now, the operational files of the Deputy Directorate for
Operations and some in Compartmented Intelligence have been
exempted from the automaticity, but that is not all, I think,
that should be exempted from the automaticity of being released
after a certain number of years. But it does seem to me to be
incumbent upon the government, if there is intelligence
information--whether it is from the Cold War, covert actions,
or older estimates of the Soviet Union, when the Soviet Union
does not exist anymore--that can be released, it has to be gone
through very carefully. The professionals ought to be spending
their time working on releasing as much of historical
intelligence as can be released without endangering current
sources and methods and making the difficult judgments that are
often entailed there, instead of doing one of these special
searches for the fourteenth time.
Chairman Thompson. Perhaps more subject-matter oriented
than just a broad chronological----
Mr. Woolsey. I think so. There probably are some areas, Mr.
Chairman, where the chronological rule is a perfectly decent
rule-of-thumb, but I do not think intelligence is one of them.
But I think that it is incumbent on the intelligence community
and, I think, on the Congress that funds it--in order to be
doing a decent job for the historians who need to understand
what happened in Iran in 1954 and the rest--to use the
government's resources in this area wisely and in a balanced
way.
It seems to me that something that inclines toward, even if
it does not absolutely require, a reduction in the redundancy
of some of these special searches, thereby freeing up resources
to focus on making the difficult and important judgments that
are required in the releasing of other intelligence information
without automaticity, would be a reasonable thing for this
board to encourage and for the government as a whole to do.
Chairman Thompson. Mr. Garfinkel, you have been Director of
the Information Security Oversight Office for many years,
including the period in the 1990's when the administration was
undertaking bulk declassification projects. It is my
understanding that bulk declassifications at the Energy
Department resulted in the inadvertent disclosure of classified
information relating to nuclear weapons, and that accidental
disclosures of national security information from other
agencies, as a result of declassification programs under
executive order, have also occurred in several instances.
To the extent that you can discuss these matters in open
session, can you describe how the most serious of these
incidents occurred, and how you think we can properly safeguard
against such problems in the future as we try to declassify the
mountains of classified information that our government has
produced?
Mr. Garfinkel. Mr. Chairman, I believe that we need to use
reasoned judgment, and as we have taken very radical new steps
in our declassification program, we have learned a great deal
over the course of the past several years. I think what we are
doing now, which is to identify those particular files that are
most susceptible to the inclusion of mismarked atomic energy
information, should suffice to prevent any release of
information that could cause damage to our national security. I
have also been very much aware that there are occasions when
bulk declassification makes a great deal of sense. I have used
the example that came very early in my own career when I was
asked to participate in the systematic review of a number of
procurements of uniforms and boots and what-have-you during
World War II. I was escorted to a room--not a room--I was
escorted to a three-football-field-length area at the Suitland
Federal Records Center full of classified records dealing with
classified procurements of clothing during World War II and all
kinds of material that clearly no longer had any sensitivity.
Were it not for the opportunity to bulk declassify those
documents, I suspect I would have spent my entire career in
that room, reviewing those records, and would not be before you
today.
Chairman Thompson. Mr. Woolsey, to what extent is
inadvertent declassification a problem? We know that it has
happened in times past, but how should we view that? Is it a
major risk, do you believe? Factor that into the overall
assessment.
Mr. Woolsey. We have a case, I think the one you asked Mr.
Garfinkel about. I believe that in the aftermath of President
Clinton's first executive order on this, the declassification
process in the Department of Energy resulted in the release of
some 10 or 12 documents that had Restricted Data that was still
important in them, and that caused, I believe, some changes in
the process. So, it does happen.
Normally, in intelligence areas what has happened is that
the intelligence community has fought hard against having its
records included in automatic declassification areas. As I
said, it has succeeded to some extent. So, I cannot think of--
immediately--any major problems that have arisen from
automaticity, with respect to things like the Directorate of
Operations' files.
Chairman Thompson. I take it that the particular
inadvertent releases we are talking about for the Energy
Department of Information was not under one of those exclusions
that cover intelligence----
Mr. Woolsey. I think that is correct. I think it was
pursuant to the President's executive order, whatever that is--
one-two?
Mr. Kimball. The one before the current one.
Mr. Woolsey. The one before the current one, the one back
in 1993, 1994. I do not recall the number of it right now.
Chairman Thompson. There are, obviously, some very
sensitive documents that are not, perhaps, within the
intelligence exclusion, per se. Is that what you are saying?
Mr. Woolsey. Absolutely, and they can get caught up in the
automatic release, as apparently these 10 or so did. But there
certainly are cases, such as the one Mr. Garfinkel mentioned,
where any reasonable common sense would say we could save a lot
of time by having an automatic rule. The problem is this is not
an area where generalizations hold for long. A lot of people
believe that as long as what you are declassifying in the
intelligence arena is estimates or assessments, rather than
operational data, it can be done rather freely and easily; and,
indeed, people leak intelligence assessments, in part, because
they think there is no real harm to it. Whereas, in fact,
depending on how it is written, it can be extremely damaging to
intelligence sources and methods because of the combination of
the substance of what is in the assessment and the timing, the
time at which one knows it or is known to have known it.
So, even things like the estimates dealing with the Soviet
Union that my predecessor, Bob Gates, ordered released, or the
covert action files that I ordered released, those cannot be
done by a rule-of-thumb, either. They really need professionals
going through. Now, professionals make misjudgments. I think
whoever looked at this Iranian 1954 file and decided it had to
all be withheld made a bad judgment. So, you really do need to
have smart people who know the business and have general
guidance, and who have both the respect for the public's need
to know and a professional concern about not damaging
intelligence sources and methods. You have to have them go
through these documents carefully if they have anything to do
with intelligence, and also in some other areas as well. That
takes time, and it is not easy.
Often, these are retirees who are brought back on contract,
but one has to pay them. If you want people of that caliber,
when you have to have people who know what they are doing going
through these documents, it is expensive.
Chairman Thompson. Dr. Kimball, first I will thank you for
your suggestions on improving this legislation. In your
testimony, you argued that, with the exception of the State
Department, most government agencies holding classified
information have not developed a very good systematic review
program. Do not quite a few specific committees, boards and
panels already exist to give the principal agencies advice on
this sort of thing? Is this not what your own State Department
Historical Advisory Committee did for the State Department? If
panels, such as your committee at the State Department, can do
such good work in helping their agencies develop proper,
systematic review efforts, should we not be trying to get the
other bodies that already exist to offer better advice, rather
than, perhaps, just creating another organization?
Mr. Kimball. There is a difference in nature of these
bodies. The State Department Historical Advisory Committee and
this board that would be created exist because Congress has
passed a law creating them. As far as I know, there is no other
historical advisory board to any government agency related to
classified material that exists, except the State Department
committee. That makes it a bit more bulletproof. Not too many
years ago, one of the intelligence agencies was unhappy with
the advice it was getting from its--well, it does not call it
an advisory board, but its historical study group, whatever it
was called--and suddenly that agency decided that there were
term limits for the members of that advisory group. Three of
them left almost immediately.
Now, maybe that was a coincidence, maybe not. All I know is
that I think that group has got the message. So, therefore,
they were not able to act in the public interest the way I
think they should. The Foreign Relations Act of 1991 created a
special situation, whereby Congress went a small, but
significant, step in the direction of saying what should be
declassified. It was very general, but what it said was, in
doing the history, the foreign policy, foreign relations of the
United States for the foreign relations series, that series,
that record, should be comprehensive and accurate. That word,
comprehensive, covers a lot of territory. It did not say
exactly what to declassify, but it did say that those things
had to be reviewed and what was published had to be
comprehensive.
That has been an enormous success. To be quite honest, the
CIA, I think, was quite unwilling to cooperate in the
beginning, and I must say right now has become quite willing to
cooperate. It has been a process of 9 years of negotiating,
arguing, disagreeing, agreeing, and it is my opinion now that
there is a sense of cooperation between the CIA and the State
Department on this declassification issue. That agreement, by
the way, follows pretty much the general guidelines that Mr.
Woolsey outlined as to what can and cannot be declassified. To
me, the key difference here is that our committee, the
Historical Advisory Committee, would not go away, and that
meant it had to be dealt with in a straightforward, honest,
responsible manner; and the result has been positive.
Chairman Thompson. Mr. Woolsey, you, perhaps, are the only
one here that has been on the receiving end of declassification
advice from organizations that might be analogous to the
proposed board. What was your experience as Director of CIA
with bodies such as the CIA's Historical Review Panel, the
Interagency Classification Appeals Panel and Security Policy
Advisory Board? How useful did you find the advice from such
organizations? Did they make recommendations to you or others
about these matters? Did they ever offer their opinions on any
special search or other similar undertaking? Did they ever talk
you out of a search or help you do so?
Mr. Woolsey. I did not get too involved in decisions about
individual searches, Mr. Chairman. As a general rule, I took
over the DCI job in early 1993, just a little more than a year
after, essentially, the demise of the Soviet Union and the end
of the Cold War. So, it was fairly early in the transitional
period and, to be, I think, fair to the people who were
involved in this, they understandably still had, in many ways,
a kind of a Cold War mentality about this issue, especially
with respect to releasing material about Russia, China, Eastern
Europe and the like.
But my predecessor, Bob Gates, had made a very good
beginning by ordering the release of a number of estimates of
the Soviet Union on the very excellent theory that since the
Soviet Union did not exist anymore, one could have a
considerably more liberal attitude toward releasing estimates
than, say, with respect to China, which very much still existed
with the same government that it had during the Cold War and
for which release of some types of estimates could create
political and diplomatic problems. But the Soviet Union was
gone. They were just starting to come to terms with that, and I
think there was some enthusiasm among some of the top people
for following on Bob's initiative, and that is what led us to
take, first, an initial look at these Cold War covert actions,
and for me to order the release of a number of those.
I was disappointed later to find, within the last few
years, that some of that material did not exist or was not
released for one reason or another. Some of it was released.
But that was, frankly, my major involvement, not individual
searches or individual material. What would happen is you would
continually get, at budget time, the poor people who had to do
this coming up and saying, ``Look we have reduced our backlog
on FOIA requests by such-and-such, our backlog on this by so-
and-so much, but we are losing ground because we are getting
all of these special searches and so forth.''
It is a continual struggle, largely over money, because you
can do a lot of these documents and do them intelligently if
you are willing to pay for it. There are a number of retirees
around Washington area who have expertise and are quite bright
and able people who are willing, on a part-time basis, to come
in and read through materials, some of which they were familiar
with when they were on the inside, and to make these kinds of
judgments. But they have to be paid. That is what it really
almost always comes down to: Are the intelligence committees
and the appropriations committees willing to fund things like
substantial increases in payments for retirees, to come back
and read through records? That is what it really kind of comes
down to.
Chairman Thompson. Gentlemen, thank you very much. It is
past noon now, and I think we ought to adjourn. But this has
been extremely helpful. Under Senator Moynihan's leadership,
perhaps we can move the ball down the field a little bit
further with regard to this complex, difficult issue.
Thank you very much for your cooperation and your testimony
today. The record will remain open for 2 weeks following the
close of this hearing.
[Whereupon, at 12.11 a.m., the Committee was adjourned.]
A P P E N D I X
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