The Coalition Column

Combating Government Secrecy: An Update

Bruce Craig, October 2004

One of the defining characteristics of government in the post-9/11 era is an increased emphasis on secrecy. The Patriot Act, when combined with the Bush administration’s implementation of several executive orders—including one relating to homeland security information sharing (E.O. 13311), another relating to classification of national security information (E.O. 13292), and the draconian order put on the books at the beginning of the current administration restricting access to presidential records (E.O. 13233)—have created impediments to government documents of an almost unprecedented scale. New reports show that federal agencies are classifying documents in record numbers, thus affecting present and future efforts by scholars seeking access to all sorts of government records. Government agencies are, in fact, responding to increasing numbers of Freedom of Information Act (FOIA) requests by clamping down even more on access.

To combat these trends, dozens of organizations including the American Association of Law Libraries, the American Library Association, the Federation of American Scientists, the Reporters Committee for Freedom of the Press, and the National Coalition for History have joined together in a new coalition—OpenTheGovernment.org. The group seeks to promote "the public’s right to know and reduce secrecy in the government."

On August 26 the new organization issued its first "report card" on government secrecy (see "Secrecy Report Card: Quantitative Indicators of Secrecy in the Federal Government" at http://www.openthegovernment.org/). Using measurable benchmarks for evaluating the level of secrecy in government, the report indicated that "government data confirm what many have suspected—secrecy has increased dramatically in recent years but especially under the policies of the current administration." For example, the report demonstrates that in fiscal 2003, for every $1 the federal government spent declassifying documents, it spent an extraordinary $120 maintaining the secrets already on the books. In all, the government spent $6.5 billion last year creating some 14 million new classified documents with an ever increasing amount of money being spent on securing existing secrets.

Also in August a disturbing summary report issued by the Department of Justice Office on Information and Privacy found that the annual number of FOIA requests to federal government agencies exceeded three million for the first time last year. The total number of Freedom of Information Act/Privacy Act access requests received by all federal departments and agencies during fiscal 2003 was 3,266,394—some 863,456 more than the number of requests received during fiscal 2002, an increase of nearly 36 percent. 2003 may be remembered as the first year in which the three-million-request level was exceeded; this figure also stands as the greatest one-year increase ever in FOIA requests received (see "Summary of Annual FOIA Reports for Fiscal Year 2003" at http://www.usdoj.gov/oip/foiapost/2004foiapost22.htm).

Congress has also done its part in documenting secrecy problems. During an August 24 hearing by the House Government Reform Committee’s Subcommittee on National Security, Carol A. Haave, deputy undersecretary of defense for counterintelligence and security, disturbingly indicated—in response to a question from Rep. Christopher Shays (R-Conn.)—that probably half of all government classified documents may be unnecessarily or improperly classified. According to Haave, the problem is that "we overclassify information .... [but] not for the purpose of wanting to hide anything. But I will tell you that with respect to military operations, people have a tendency to err on the side of caution." A transcript of the hearing may be found on the web site of the Federation of American Scientists at www.fas.org/sgp/congress/2004/082404transcript.html.

With such disturbing reports and findings making their way into the inner pages of the nation’s newspapers, Congress has begun to respond. There was a hopeful sign when a bipartisan collection of senators—Ron Wyden (D-Oreg.), Trent Lott (R-Miss.), Bob Graham (D-Fla.), and Olympia Snowe (R-Maine)—introduced the "Independent National Security Classification Board Act of 2004" (S. 2627) in late July. This legislation seeks to create a board in the executive branch that would review current classification policies, make recommendations for reform, and "serve as a neutral forum for re-examining disputed classification decisions."

The board loosely resembles the nine-member Public Interest Declassification Board (PIDB) (the so-called "Moynihan Board," named after the distinguished New York senator who championed the cause of government openness) that was authorized in the 2001 Intelligence Authorization Act but has never been established. It’s unclear whether any of the senators realized that a public law already was on the books that would in general accomplish what they wanted to see enacted. There are some minor differences, of course, between what already is public law and what is being proposed.
For example, under the PIDB the majority and minority leadership of the House and Senate as well as the president were all to make appointments (the congressional leadership is to appoint four members, the president five members). In spite of prodding from the National Coalition for History and other organizations, to date not a single nomination to the board has been made by the Senate, the House, or the president. The new legislative effort provides $2 million to establish a much smaller three-member board of which the president, the Senate, and the House would each nominate only one individual; all members would require Senate confirmation. Despite its status in the executive branch, this board would not have the capability of forcing any agency to declassify documents; the board would only be empowered to make suggestions and recommendations.

But according to Steven Aftergood of the Federation of American Scientists, this new legislative effort may "actually lead somewhere, especially if it can be given some teeth." Aftergood hopes that the bill can be amended to include independent statutory authority to actually declassify documents and not just recommend declassification. A companion bill (H.R. 4855) to the Senate version has also been introduced in the House. Hearings in either house have yet to be scheduled.
Finally, perhaps in recognition of the upcoming election, an increasing number of members of Congress appear concerned about government secrecy and attacks on civil liberties. A recently introduced bill, the Civil Liberties Restoration Act (S. 2528), for example, seeks to put an end to secret hearings, ensure due process for detained individuals, and limits secret seizures of records. Though this bill has been introduced, Hill insiders don’t expect it will go anywhere this Congress.
In another legislative effort that seeks to modify aspects of the Patriot Act, the Bush administration lobbied hard in early July to defeat a proposed amendment strongly supported by the library and bookseller communities that would have restricted the government’s ability to seize library and bookseller records under the Patriot Act. After bitter debate and manipulation of House rules, the amendment was defeated by only one vote. This bill may well portend next year’s battle when Congress is set reauthorize the Patriot Act which is slotted to sunset at that time.

Bruce Craig is director of the National Coalition for History. He can be reached at rbcraig@historycoalition.org.