Building Our Own 'Iron Curtain': The Emergence of Secrecy in American
Government
by TIMOTHY L. ERICSON, University of Wisconsin-Milwaukee
59th president of the Society of American Archivists
N.B.: This is a reading copy of Timothy L. Ericson's presidential
address presented at SAA's 68th Annual Meeting in Boston,
August 5, 2004. The published version appeared in the American Archivist,
Vol. 68 (Spring/Summer 2005), pp 18-52.
On March 5, 1946, Winston Churchill gave a famous speech that to many signaled
the beginning of the Cold War. Addressing an audience at Westminster College
in Fulton, Missouri, Churchill spoke about the deteriorating relationship between
the Soviet Union and the Western allies less than one year after the defeat
of Nazi Germany and Japan. In a now-famous quote, he warned that, "[from]
Stettin in the Baltic to Trieste on the Adriatic, an iron curtain has descended
across the continent." The metaphor caught the imagination of Americans
and it was used thereafter to describe the divide that separated the West from
the East.
I use this metaphor for my talk today because I think it conveys a sense of
the divide between Americans and their government that has emerged with the
increased use of secrecy to shroud many actions and decisions in the name of
national security. State and local officials have followed the federal government's
example, and today the tilt toward secrecy permeates our entire system of government
from the White House to the local school board.
Curtains can be fashioned in many ways.In 1946 the Russians cast theirs with
tanks and barbed wire, but ours is a curtain of our own making—woven
with Executive Orders, exemptions to the Freedom of Information Act and, most
of all, the system of classifying sensitive information. Secrecy separates
us from our fundamental right as citizens to know how decisions and policies
are made and to hold our elected officials accountable for their actions. This
curtain of secrecy also separates our government agencies from one another
and inhibits their ability and willingness to share the information they need
to help them make informed decisions. We see examples of this curtain on an
almost daily basis.
Recently declassified documents dating back to 1942 confirmed that U.S. intelligence
officials had been warned about the coming Holocaust in Europe through interviews
with Jews who had immigrated during 1941 and 1942, and had also recruited former
Nazis as intelligence sources, shielding them from prosecution as war criminals.
These documents had remained classified, presumably in the interest of our
national security, for more than 60 years.
A Georgia man has been trying to locate and retrieve a live atomic bomb that
was jettisoned in the Atlantic Ocean off Savannah in 1958. But he has been
hindered in learning much about the bomb itself or its location because "many
of the details remain classified." Only recently, after sea water
from the area showed abnormally high levels of radiation, has the federal government
become more actively involved in the search.
During Iraqi Ahmad Chalabi's fall from influence with the American government,
it was revealed that there had been suspicion about his reliability for some
time. In fact, the Defense Intelligence Agency had concluded that some of Chalabi's
information was suspect and attached a warning notice to one of its assessment
reports. Unfortunately, according to Newsweek, the warning was so highly
classified that even other intelligence officers were not permitted to see
it—and it went unheeded.
The Senate Select Committee on Intelligence recently discovered that the CIA
had undertaken a series of pre-war interviews with relatives of Iraqi scientists
who informed them that programs to develop weapons of mass destruction had
been abandoned. Unfortunately, the program was classified as secret and nobody
outside the CIA, including the President of the United States, had the
chance to consider this information prior to the decision to invade Iraq.
A reporter recently noted, "Executive branch agencies discovered more
than 14,000,000 new secrets last year—a 25% increase over prior years." A
March 2004 report from NARA's Information Security Oversight Office noted: "Many
senior officials will candidly acknowledge that the government classifies too
much, although the observation is often made with respect to activities of
agencies other than their own."
A similar curtain of secrecy has descended at state and
local levels of government as well. A Tallahassee newspaper reported, "In
a time when terrorism, privacy and identity theft are at the forefront of public
debate, it may come as no surprise that state lawmakers often cite these as
reasons when imposing a new shroud of secrecy on government records. But there
is often more to the story. In 1998, lawmakers exempted rabies vaccination
records from public scrutiny, citing the privacy concerns of pet owners. But
it turns out it was the veterinarians who wanted the records closed to prevent
them from being used by major pet care companies to market their products.
Each year lawmakers advance a new round of bills seeking to close public records.
Up until 1985...Florida had 250 exceptions in its public records laws. Since
then, the number has grown to nearly 900."
Where have the archivists been? Our SAA Code of Ethics clearly speaks
to the issue of access to records. But the language of the code is interpreted
by many as applying mostly to manuscript curators who deal primarily with private
donors rather than the archivists who deal with public government agencies.
Why have we not been more zealous in embracing our ethical responsibility to "discourage
unreasonable restrictions on access" with respect to government
records that are being unreasonably restricted by the millions? Our involvement
as advocates against unnecessary restrictions to government records has been
uncoordinated and, at best, sporadic.
I want to spend my time today 1) sharing some of the historical background
on how we have come to the place in which we find ourselves today; 2) suggesting
some of the adverse effects that I believe have resulted from secrecy run amok;
and 3) leaving you with my sense of what I think we ought to do—as a
profession, as individual archivists, and as citizens—to move toward
a more rational system.
Our curtain of secrecy has been a long time in the making, and some of its
threads date back to the very founding of our country. I believe that our situation
today has resulted, in part, because of the historically indifferent attitude
toward records that Americans have had since the early days of the Republic.
This has made us vulnerable to panic in times of national duress.
We have lurched from one crisis to another and much of our secrecy apparatus
has been cobbled together quickly, rather than wisely. The USA PATRIOT Act
is only one of the latest in a series of "quick fix" responses to
problems, enacted without close examination or debate about the long-term cost
to our civil liberties.
So how did we get into this situation? I have divided my overview of
the history of our secrecy apparatus into three approximate time periods: The
first from 1774 to1870; the second from 1870 to 1940; and the third from 1940
to the present.
It is tempting to think about the early years of our nation as an "Age
of Innocence," when pure democracy flourished and all business was conducted
in the open with free discussion and debate. But secrecy in matters of national
defense and diplomacy has been part of American government since the beginning.
In fact, it was during the early years between 1774 and 1875 that much of the
foundation on which our present system is built was put into place.
Withholding information from the public was deemed necessary from the second
day of business in 1774, when the First Continental Congress met to discuss
the "Intolerable Acts." Delegates resolved to keep their proceedings
secret by closing the doors. Their caution was understandable. They were,
after all, in the beginning stages of plotting revolution, something to which
the British authorities could not have been expected to respond well. Even
so, the scope of secrecy was limited. The First Continental Congress published
its proceedings immediately, withholding from the public only a few of the
more sensitive details. In 1775, a committee from the Second Congress, preparing
its official journals for publication, was asked to "examine whether it
will be proper yet to publish any parts omitted in the journal of the [1774]
session."
Secret government committees were born in September 1775, when a "Secret
Committee" was charged to deal with matters pertaining to the purchase
of munitions in order to ensure the safety of those who were providing arms
to the Continental Army. The same Congress also established the "Committee
of Secret Correspondence" to communicate with "friends" in other
countries on matters relating to alliances and other diplomatic relations.
The Committee's efforts paid off when France was convinced to enter into a
long-term treaty of commerce that would provide American armies with needed
munitions. Although the French agreed, one of their top diplomats cautioned
that France needed to protect itself and demanded that the treaty be kept secret. In
retrospect, some might argue that this was a perspective that we learned all
too well. But it was not immediately so. During 1777, an American diplomat
used information from the Committee of Secret Correspondence to publish a series
of open letters to the press discussing French aid to the American military. The
French were furious about this indiscretion and strongly protested it.Doubtless
many were struck by the irony that the American diplomat, Thomas Paine, was
also the author of the pamphlet Common Sense.
But it is clear that, from the beginning, our government understood the need
to keep secret some information concerning military and diplomatic activities.
To facilitate this, Congress kept a separate secret journal to record certain
votes and actions, thus shielding a small amount of information from public
scrutiny.The eventual Constitution mentions secrecy only once, in Article I,
Section 5, in which Congress was authorized to continue the 1775 precedent
and omit from the publications of its proceedings "such Parts as in their
Judgment require Secrecy."
"Born classified," the idea that a certain kind of information may
be restricted without any formal review or action, is a concept that is generally
associated with the Atomic Energy Act of 1946, but the precedent was
set in the time of George Washington with respect to diplomatic information.
In 1784, Congress ruled that all diplomatic correspondence was considered secret. President
Washington used this power in 1790 when he communicated in a "confidential" letter
to Congress concerning negotiations with Native American nations. During that
same year he sent to the Senate a "secret" article of a treaty being
negotiated with the Creek Indian Nation.
On August 21, 1776, Congress had passed the first espionage act to
better protect the national security, but the precedent for curtailing civil
rights in time of conflict was not set until 1798, when war with France seemed
likely.Congress hurriedly passed the Alien and Sedition Acts. These
legislative actions that restricted civil liberties represented "the nation's
first experience with how war or the threat of war changed the balance between
private liberty and public order." They forced Americans to re-think the
extent to which ideals needed to be balanced against reality in times of crisis.
They also were an early example of "knee-jerk" legislation, passed
hurriedly in the face of a perceived threat. Although the acts were repealed
or allowed to expire, they established an unfortunate precedent and a pattern
that would be repeated too often in later years.
Support by the Supreme Court for the executive branch's right to
maintain its secrets, even at the expense of a citizen's rights under the Sixth
and Seventh Amendments, came in 1807 during the treason trial of Aaron Burr.
The government refused to release a letter from the chief witness against Burr
because it "might" compromise national defense information. The Court
supported the government's argument and the letter remained private. The precedent
is still cited today.
It was also during these years that the power of executive orders was
established and Congress adopted the first constitutional oath of allegiance.
The irony of all this secrecy was not lost on the early proponents of democracy.
In the Federalist #8, Alexander Hamilton warned of the inherent tension
between freedom and measures sometimes needed to remain free, writing, "The
continual effort and alarm attendant on a state of continual danger will compel
nations the most attached to liberty to resort for repose and security to institutions
which have a tendency to destroy their civil and political rights. To become
more safe, they at length become less free." In a 1798 letter
to Thomas Jefferson, James Madison made a similar observation regarding the
threat that foreign nations might pose to American freedoms.
It was also during these early years that our disinterested attitude toward
records became evident. Although we like to compare our archival traditions
and values with those of the French Revolution era, the fact remains that the
French established the Archives nationales in 1790, but Americans didn't
get around to it until 1934.
But we did at least talk about it. On February 21, 1810, the Honorable Josiah
Quincy of the Commonwealth of Massachusetts moved that the House or Representatives
form a committee to "inquire into the state of the ancient public records
and archives of the United States, with the authority to consider whether any,
and what, provision be necessary for a more safe and orderly preservation of
them." A committee was duly appointed and soon issued its report
titled Report of the Committee Appointed to Inquire into the State of the Ancient
Public Records and Archives of the United States of America. Their findings
were that the records were in "a state of great disorder and exposure;
and in a situation neither safe nor convenient nor honorable to the nation." Specific
problems cited sound familiar to contemporary archivists: lack of space,
preservation concerns, and lack of security. But the committee's recommendations
were modest, largely confined to adding some space and moving the post office
to another building in order to reduce the traffic in the archives area.
Our disinterest in the records of government certainly made an impression
on the French visitor Alexis de Tocqueville when he toured the young nation
in 1831 and 1832. The young Frenchman was surprised about American attitudes
toward records generally, but especially when some government officials actually
gave him original documents in answer to questions he posed! The
lack of concern about records extended even into the Civil War years, at which
time, by some accounts, the need for barracks, hospitals, and storage space
for munitions was solved by simply dumping great quantities of records from
warehouses into the Potomac River, apparently with no concern that rebel spies
might be waiting downstream to salvage whatever soggy secrets the documents
might contain.
By the Civil War the government still had not developed a formal system of
protecting sensitive information. Significant control occurred primarily
in the war zones, and these were directed primarily at the press. Even then
Lincoln, who would later suspend habeas corpus and authorize censoring
mail, cautioned one of his generals to distinguish between compromising military
information and expressing opinion.
But it was during the Civil War that the concern for maintaining secrecy was
first extended to technology. The development of advanced weapons systems such
as iron-clad warships led, in large part, to establishment of the National
Academy of Sciences in 1863. For its first projects the Secretary of
the Navy requested the formation of a "Committee on Protecting the Bottoms
of Iron Vessels" and another on "Magnetic Deviation in Iron Ships" to
aid in navigation.
The final development of this period came in 1869, when the U.S. Army issued
its first regulations aimed at controlling documents and information by prohibiting
the taking of photographs or making of drawings of forts or other military
installations.
During the next period in the development of our curtain of secrecy, from
1870 to 1940, most of the activity that would shape our own system actually
took place overseas, particularly in Great Britain. Beginning in 1853, the
British War Office had adopted a formal system of classifying and handling
sensitive documents during the Crimean war. This was the first time that
any government agency had used a formal classification system, and it
also signaled the beginning of an era in which the military took the lead in
developing systems that restricted access to information. This was a significant
development for the American system of classifying and handling secret information
because the British procedures were almost all adopted as models by the American
War Department decades later—and most are still in use today.
As an international confrontation with Spain loomed in 1897, the U.S. War
Department, using an 1889 British model, updated its 1869 regulation by limiting
who could visit coastal or lake defenses and added restrictions and penalties
on taking photographs or causing damage. When Congress passed a law in 1898
establishing penalties for "violating any War Department Regulations made
for the protection of [defense] systems," it marked the first instance
in which restrictions created by military regulations were made applicable
to civilians.
With the assassination of President William McKinley in September 1901, the
nation was gripped by a wave of hysteria against anarchists and the threat
they posed to the country. (Terrorists, if you will.) This fear led to
the passage in 1903 of the Alien Immigration Act that prohibited alien
anarchists from entering the United States. This led, in turn, to the creation
of secret files relating to immigrants.
In November 1907, the U.S. War Department established the first rudimentary
official document classification system. The motivation was due, in large part,
to the confusion among Army officers concerning the use of the word "confidential." Four
years later, perhaps due to a lingering fear of anarchists and a sense of the
worsening situation in Europe, Congress enacted the Defense Secrets Act modeled
after the British Official Secrets Act.
America's entry into World War I in1917 prompted hurried legislation condoning
greater secrecy in government. The seeds for hasty action had been sown a year
earlier by the Black Tom Railroad Yard explosion, in which a munitions dump
had been destroyed by saboteurs. This terrific explosion made headlines across
the country and heightened fears of leftist labor organizations, anarchists,
and now enemy saboteurs as well. Congress passed the Espionage Act of 1917 and
the Trading with the Enemy Act shortly after the U.S. entered the war
in April. These prompted the creation of dossiers with information on suspicious
persons and organizations. When the dossiers were assigned levels of secrecy
depending on the information they contained, government officials simply borrowed
the classification framework that the U.S. military was using—one adapted
from a system used by the British armed forces fighting in France.
The 1917 legislation that established "much of the structure of secrecy
now in place in the U.S. government" was rushed through Congress in just
under eleven weeks. As Daniel Patrick Moynihan later lamented, "At this
time the United States possessed only one genuine defense secret: That
the American Military was in no sense prepared for a major war with powerful
adversaries." The Espionage Act was amended many times over
the years, but the first serious suggestion that the law be considered afresh
was made by Hubert Humphrey in 1955. The first conviction under the Espionage
Act would not come until 1986, when historian Samuel Eliot Morrison was found
guilty of providing Jane's Defense Weekly with photographs showing the
construction of a nuclear-powered Soviet aircraft carrier.
The Sedition Act of 1918 was similar to its 1798 counterpart;
it made it a crime to "utter, print, write, or publish any disloyal, profane,
scurrilous, or abusive language about the form of government of the United
States." Like its predecessor, it was passed and enforced. Former
presidential candidate Eugene V. Debs was convicted and sentenced to ten years
in prison for voicing anti-war sentiments. The Supreme Court reasoned that "Congress
has the power to enact legislation that, under ordinary circumstances, might
not be acceptable, when forced by a clear and present danger."
There was little respite following the end of World War I. On May Day, 1919,
a series of 36 bombs were mailed to prominent government officials and judges,
setting off another nationwide panic. The New York Times labeled it
a "nationwide bomb conspiracy." Shortly thereafter J. Edgar
Hoover was appointed head of the newly formed Federal Bureau of Investigation
to combat radical political conspiracy within the United States.
Although the period between the two World Wars resulted in a lapse in military
preparedness, the armed services updated their secrecy apparatus on a regular
basis. In 1936 classifications were extended to non-defense information. More
significantly, information was permitted to be classified if its release
might be harmful to an individual or would damage the "prestige
of the Nation" (easily construed to mean "embarrassment"), opening
a Pandora's Box for widespread abuse. Despite all this activity aimed at safeguarding
American military secrets, possibly the most important secret, the invention
of the Norden bombsight in the 1920s, was stolen by German spies in 1937.
The onset of World War II marked the beginning of the final phase in the development
of our government secrecy apparatus. Conspiracy, loyalty, and secrecy became
the forces that fed off one another and led to the establishment of an extensive,
uncoordinated bureaucracy that today is scattered throughout the federal
government.
It is the use of executive orders that has dominated the period. An executive
order is simply "a written document issued by the President and titled
as such by him or at his discretion." It requires no congressional
approval. It is based on the authority of the President guaranteed by the Constitution
and has the force of law. Executive orders may be revised or repealed by the
President who issues them, or by later Presidents. Unless otherwise specified,
executive orders remain in effect indefinitely.
Some executive orders deal with weighty matters of public policy, such as
Lincoln's 1863 Emancipation Proclamation or Truman's 1948 Executive Order
9981, which ended official segregation in the American military. Or
they can be quite mundane, as was Franklin Roosevelt's 1941 Executive Order
8758 "Establishing Conversion Factors for Use in Administering Imports
of Coffee." Executive orders can directly affect the lives of individuals
or segments of the population, such as was the case with Executive
Order 1090 signed by President Taft on June 17, 1909, taking land from
the Gila Bend Indian Reservation and returning it to the public domain.
Consistent with our casual attitude toward records, nobody in government thought
even to number executive orders until around 1907. Although many EOs are now
published in the Federal Register, some estimate that as many as 50,000
unknown executive orders are buried in the files of government agencies.
Executive orders do not always need to be called "executive orders." There
are dozens of different names, including "Presidential Regulations," "Directives," "Administrative
Orders," "Military Orders," or "General Orders." Executive
orders may even be labeled CONFIDENTIAL, in which case they may be neither
numbered nor even officially announced, except to the person who is responsible
for implementing the order. So today we may be governed by executive orders
about which we do not even know. Although fewer executive orders have been
issued in recent years, they have been broader in scope and impact.
Executive Order 8381, signed by Franklin Roosevelt on March 22, 1940,
probably marks the beginning of the modern executive order era as related to
classification of government information. It broadened the definition of "military
installation" to include "any commercial establishment engaged in
the development and manufacture of military or naval arms, munitions, equipment,
designs, ships, or vessels of the United States Army or Navy" and gave,
for the first time, "civilian government employees the authority to classify
information." This, along with Executive Order 9066, gave
the President the authority to remove persons of Japanese descent from the
entire West Coast. There was little protest at the timeÐeven from California
Attorney General Earl Warren, who later became Chief Justice of the United
States Supreme Court. It was another example of haste and fear trampling civil
liberties in a time of crisis.
There is not time to trace all of the executive orders that have enabled secrecy
and suspicion to grow over the years, but they have become an extraordinarily
powerful tool. Their effect on our network of secrecy and classification of
information has been enormous. They established the Federal Employee Loyalty
Program, standardizing procedures for investigating and reviewing the loyalty
of federal employees and applicants for employment, as well as permitting denial
of employment where "there is a reasonable doubt as to the loyalty of
the person involved." The mounting fear of disloyal employees who
might reveal secrets resulted in more information becoming subject to classification
and more confidential information being collected about government employees.
Executive orders by Truman and Eisenhower formally extended "classification
authority" beyond the military and state departments to 72 civilian government
agencies, such as the Department of Agriculture, the Department of Commerce,
and the Department of the Interior. It also added the security level of TOP
SECRET as a classification for government information, and mandated a background
investigation of every person prior to their appointment as a federal employee.
Of the latter, Wisconsin Senator Joseph McCarthy was quoted as saying, "Altogether
it represents a pretty darn good program. I like it."
Under President Eisenhower, 59,316 government employees could classify records,
but the number has gradually decreased as subsequent Presidents began to see
the relationship between the number of people authorized to classify information
and the number of documents classified. Through the Carter, Reagan, and Clinton
presidencies, the number has ranged from around 3,800 to 7,000. Today there
are 3,978 federal employees with authority to classify information.
It was not until 1978 that the first executive order mandating a balancing
test that weighed the public's right to know against the Government's need
to protect national security was issued. The same order established the Information
Security Oversight Office at the National Archives.
Early executive orders gave almost no criteria for classification at various
levels.For many years requirements for classification at the TOP SECRET level
simply relied on "exceptionally grave damage" to the country. It
was not until 1995 that classifiers were required to specifically "identify
or describe" what "exceptionally grave damage" meant!
Executive orders have broadened the scope of information that can be classified,
from strictly military information to any "information or material...that
is owned by, produced for or by, or under the control of the United States
Government."
Executive orders have never specified sanctions for government officials who
over-classify information.
Congressional uneasiness over the increased power that classification authority
gives to the executive branch of government has resulted in studies, committees,
and recommendations for reform. But although some of these have brought good
results, none has been very successful in slowing the growth of government
secrecy.
The Atomic Energy Act of 1946 was the first statute to deal with information
classification. It formally introduced the term "born classified," and
added to the power of the FBI by directing the bureau to look into the "character
associations and loyalty" of employees of the Atomic Energy Commission,
thus creating dossiers with more secrets.
The National Security Act of 1947 gave us the Central Intelligence
Agency, complete with a budget that remained a secret until 1997. But because
lawmakers operating in the immediate post-World War II era were wary of creating
an intelligence apparatus that had too much power, they limited the CIA's authority
and thus planted the seeds of rivalry and power struggles that have characterized
intelligence since that time, most recently with the uncoordinated response
and follow up to the 9/11 attack and the preparation for the war in Iraq. In
the wake of the 9/11 Commission Report and the U. S. Senate Select Committee's Report
on the U.S. Intelligence Community's Prewar Assessments on Iraq, we are
still living with the consequences of that decision that was made more than
50 years ago.
As early as 1954, only seven years after the creation of the CIA, a report
warned of the agency's penchant toward over-classifying the information that
it developed. Unfortunately, the report itself was classified as SECRET, so
nothing happenedÉ.
A 1956 report concluded that criteria governing what should be classified
were too vague. It criticized the fact that no laws had established penalties
for over-classifying documents, and said this practice had undercut public
confidence in the system by encouraging officials to err on the side of caution
and classify any documents that seemed questionable. Nothing happened.
Another report, in 1957, noted as others had before, the "danger to national
security that arises out of overclassification" and called for a system
that would, "protect the national security and preserve basic American
rights." Nothing happened.
The Gaither Report, also issued in1957, marked a distinct low point.
It coined the term "missile gap," the myth that drove American foreign
policy for many years by badly overestimating the rate of growth of the Soviet
economy and military. It caused considerable alarm among those who saw it but,
because it was classified TOP SECRET, few did. Although leaked to the press
almost immediately, causing great alarm, the report was not declassified until
1973.
But there was an occasional piece of important legislation. The Freedom
of Information Act evolved from a House of Representatives subcommittee
report issued in June 1958 that noted a "lack of public confidence" resulting
when information was needlessly classified. It urged marking documents with
a date after which they would automatically be downgraded or declassified
and urged a "minimum of exceptions." It was a significant
document because the idea of a "minimum of exceptions" eventually
led to a series of legislative actions that resulted in the passage
of the Freedom of Information Act, signed into law by President Lyndon
Johnson on July 4, 1966.
It is noteworthy that during the House debate, one of Moss' colleagues, a
young Congressman from Illinois, spoke in favor of the bill, saying, it "will
make it considerably more difficult for secrecy-minded bureaucrats to decide
arbitrarily that people should be denied access to information on the conduct
of government or to how a .... government official is handling his job. Public
records, which are the evidence of official government action, are public property,
and there should be a positive obligation to disclose this information upon
request." The name of that young Congressman from Illinois was Donald
Rumsfeld.
A 1960 report stated bravely: "Secrecy—the first refuge of incompetents—must
be at a bare minimum in a democratic society, for a fully informed public is
the basis of self-government. Those elected or appointed to positions of executive
authority must recognize that government, in a democracy, cannot be wiser than
the people." Nothing happened.
How well has our system of classification and secrecy served us? Not
very well. Anecdotal examples abound. In 2003, a report by NARA's Information
Security Oversight Office noted that the "classification authorities" had
made a combined total of 14,228,020 "classification decisions." During
the past decade the number has steadily increased, even before 9/11. The total
over ten years is an astounding 133,043,903 decisions to classify information.
That's not pages—it's decisions. One decision might represent a document
that is 100 or more pages. Even conservative estimates of the number of pages
of documents already classified are well up into the billions!
Our secrecy apparatus is a hodgepodge of legislative actions, executive
orders, and bureaucratic procedures that simply does not serve us in the way
that it was intended.It has promoted rivalry. Secrets have become "currency" in
the quest for power and influence, and this hinders policy making. I
have already mentioned several examples of this, even one involving a failure
of an intelligence agency to notify the President of the United States of important
information. These are not the only instances.The most recent example is less
than 2 years old. It will not be the last if the current system continues.
Ours is a bloated system that adds enormous cost to the taxpayers. With
millions of closely guarded secrets reportedly dating back to 1917 and pages
estimated to number in the billions, we incur an enormous cost associated with
maintaining the system. NARA's Information Security Oversight Office estimates
these costs to total around $7 billion annually. And that's the good news.
Costs are going up. And archivists still have to fight for a lousy $10 million
for the NHPRC!
The system is as often misused as it is employed to protect national security
or the national interest. Republican Senator Trent Lott complained that the
CIA had wanted to redact approximately half of the Senate Report on the
U.S. Intelligence Community's Prewar Assessments on Iraq and it took months
of negotiation to reduce the restrictions to the point at which the report
was actually readable. The 9/11 Commission fought the same battle. Of course,
in both cases the release of the reports to the public was delayed while negotiations
dragged on.
Secrecy infringes unnecessarily on the civil rights of individual citizens.
In July 2004, a whistleblower lawsuit filed by the FBI linguist was dismissed
on grounds that it could not be litigated without compromising sensitive information
that had been classified by the FBI. The FBI cited the Aaron Burr precedent.
This is justice denied. It is worse when considered against the backdrop of
the past 50 years, during which time no major study has disputed that far too
many records are classified. Several have estimated that 95% of classified
documents need never have been.
Secrecy promotes the idea of conspiracy. As over-classification
continues and barriers are erected to the release of information in records,
people ask why and it is easy to find sinister motives. Why else would access
be denied? The McCarthy era would never have been possible without government
secrecy. He was able to gain hearing for his outrageous charges only because
he could claim that the evidence to support them was kept hidden by the federal
government. And some of the secrecy is just silly. One of the censored
portions of a 1994 published history of the CIA's early involvement in Guatemala
was a passage from President Dwight Eisenhower's published memoirs.
The Washington Post recently reported on two efforts to obtain biographical
information about Augusto Pinochet, who overthrew the Chilean government in
a 1973 coup. The first request resulted in a largely uncensored document, but
a later request brought significantly different results. Both versions describe
him as a "Caucasian" with an "oval face and a mustache, who
wore reading glasses and was quiet." But one version had blacked
out [that he was] "mild mannered; very businesslike. Very honest, hard
working, dedicated. A devoted, tolerant husband and father; lives very modestly.
Drinks scotch and pisco sours; smokes cigarettes; likes parties. Sports interests
are fencing, boxing and horseback riding...enjoys discussing world military
problems." Pretty dangerous stuff in the hands of terrorists!
My own Congressman, F. James Sensenbrenner, that zealous defender of the USA
PATRIOT Act giving the government access to information about you and the books
you read, donated to the Wisconsin Historical Society papers from his career
as a Wisconsin State assemblyman and senator from 1969 to 1978. Those records,
the most recent of which is already more than 25 years old, contain
such sensitive materials as news clippings, press releases, and constituent
newsletters. All are restricted until the year 2027. My recent request to reconsider
the restriction was refused.
But I think the most important point to remember is that this program, designed
to protect the nation's genuinely confidential records, is driven by a system
that is prone to changing the rules of the game every four years or so, at
the whim of a new presidential administration. Such a system is simply inefficient,
wasteful of time and resources and, ultimately, insecure because of the confused
and ever-changing milieu of rules that govern what can and cannot be known.
The federal system of classifying information may have blazed the trail,
but state and local governments have followed close behind. They might not
have a convenient classification system to justify their actions, but they
find other waysÉ. Secrecy is an idea. It is a mindset and an attitude that
people adopt as a method of doing business. As secrecy permeates government
actions at the federal level, officials at other levels of government are emboldened.
The tiny rural township of St. Germaine in northern Wisconsin is far removed
from the corridors of power in Washington and little concerned with national
security and terrorism, but secrecy is employed here as well. A zoning and
appeals board was asked to grant a zoning variance to permit building a residence
closer to the road than the code allowed. The board consulted the township
attorney for advice. The attorney wrote a letter and board members read it
silently at a public meeting, after which they voted on the request without one
word of public discussion that might explain why they were taking the action.
When asked about the reasons for its decisions, the board claimed attorney-client
privilege. Thus the township residents who elected the town board and who paid
the lawyer for the advice had no right to know what advice was given or whether
it was even followed in making the decision. An open records request was appealed
all to the way to the Wisconsin Supreme Court (at a cost of more than $10,000),
where a 3-3 deadlock struck another small blow for secrecy in government.
So what to do? Nothing has been able to slow the juggernaut of
secrecy that many suspect serves the interests of politics, malfeasance, misdeeds,
and potential embarrassment. As one writer recently described it, "federal,
state, and local governments are shutting down access to public records in
what some experts say is the most expansive assault on open government in the
nation's history."
The situation has resulted, in part, because of the disinterested attitude Americans
have taken with regard to the growing trend toward secrecy—and also because
of the casual attitude that the archival profession has taken. Collectively
we have acquiesced uncritically to those who call for patriotism, national
security, loyalty—you choose the word.But let us be acquiescent no more! Let
us instead begin to be aggressive as professionals and as citizens to fight
this unprecedented tilt toward secrecy.
We need to act in concert as members of professional associations—not
just SAA, but the other national, regional, and local associations to which
most of us also belong. We need to act as individual archivists who encounter
or read about access to public records that are threatened or to which access
is denied. Archival educators need to instill in our students an ethic of activism
that will start them thinking in proactive terms.
As a first step, we need to begin educating ourselves. We can include in our
professional association meetings sessions such as [were offered] at the 2004
Boston meeting: "Executive Order 13292: The Progress and Pitfalls
of Government Records Declassification" and "Impact of the USA PATRIOT
Act on Archives and Archivists." We can also become better acquainted
with the resources of organizations that share our interest in access to public
records and that have extensive and up-to-date information on government secrecy
on their Web sites. I'm guessing they would welcome a new ally in the battle
against secrecy. Some of these include:
The second step is for archival organizations to establish more formal working
relationships with new allies, such as those cited above, that share our concern
for democratic values and our rights as citizens to hold government officials
accountable for their actions and decisions through access to records.
The third step is to begin taking action as individual archivists wherever
we live and work. Archivists have much to offer in this effort. We deal with
records issues every day. We are accustomed to making decisions regarding access
and balancing privacy against the right to know. We have a good sense of what
constitutes a reasonable restriction. We know the problems—administrative,
political, and otherwise—that can result when records are restricted
without reason. So why sit back watching idly as government officials work
to further restrict access to records? We have been promoting access
with donors of manuscript collections for decades. Why not take one step farther
and become more active with the administrators or public officials? We
need to become advocates for open records and speak out against abuses.
The fourth step is to make this a priority. Forget the time-worn "image
thing." People really are interested in issues such as access to
government records, and they value their civil liberties. Unfortunately, this
interest frequently lies dormant until a threat appears and, once it does,
people do not associate archivists with those who are knowledgeable in this
area and who can be of help. We need to change that. Let's quit being content
with the occasional "soft news" feature that highlights how we document
life in the good old days. We need to move to page one and the editorial page,
where people read about hard news and current issues.
Let me share one example. Earlier this spring there was a series of articles
concerning a controversy between the Milwaukee Journal Sentinel and
a county board over access to e-mail records. It made for great classroom discussion,
so I wrote a personal e-mail to the reporter to thank him for pursuing this
story. Almost immediately I received an e-mail from the reporter's editor asking
if I would be willing to revise my letter and have it published in the next
Sunday edition. I agreed and it was published the next week. A few days later
I received a telephone call from the local public radio station asking if I
would be willing to do a half-hour program on the subject of access to public
records in electronic form. I agreed, and brought along two graduate students
to give them some "real life" experience. A few days later I received
a telephone call from a reporter at the university's news services division,
who had heard the radio broadcast. She asked whether I would do an interview
for a feature article on the subject of citizen access to public records. It
hasn't turned the tide on government secrecy yet, but it's a start. People
are interested in these issues. We need to take advantage of that fact and
use it to spread our message.
In closing, what we must do is well stated in another part of Churchill's "Iron
Curtain" speech that is less well known. He concluded by observing, "What
is needed is a settlement, and the longer this is delayed, the more difficult
it will be and the greater our dangers will become." I agree. The
same is true today. So the next time you read the newspaper and see an
article on some new effort to make secret the workings of our government, look
for a chance to strike a small blow against secrecy and write a letter to the
editor. Thank you very much.
ACKNOWLEDGMENTS
The following is a partial listing of resources that were particularly useful
during my research for my presidential address. A complete bibliography and
notes will be included in the full version published in The American Archivist.
Central Intelligence: Origin and Evolution. Michael Warner (ed.).
CIA History Staff, Center for the Study of Intelligence, Central Intelligence
Agency, Washington,
DC, 2001.
Intelligence in the War of Independence, Organization of Intelligence,
p. 1. http://www.odci.gov/csi/books/warindep/mail.html
Security Classification of Information:
Volume 1. Introduction, History, and Adverse Impacts by Arvin S. Quist,
revised September 2002. http://www.fas.org/sgp/library/quist/index.html
Security Classification of Information:
Volume 2. Principles for Classification of Information by Arvin S. Quist,
April 1993. http://www.fas.org/sgp/library/quist2/index.html
Secrecy: The American Experience by Daniel Patrick Moynihan. New Haven, CT. Yale University Press, 1998.
Keeping
the Nation's Secrets, A Report to the Secretary of Defense by the Commission
to Review DOD Security Policies and Practices (The "Stilwell
Commission"), 1985. http://www.fas.org/sgp/library/stilwell.html
ACHRE Report Advisory Committee
on Human Radiation Experiments. http://tis.eh.doe.gov/ohre/roadmap/achre/summary.html
Report of the Commission
on Protecting and Reducing Government Secrecy, 1997 (The Moynihan Report).
http://www.dss.mil/seclib/govsec/secrecy.htm
CIA CSI The Founding Fathers of
American Intelligence, 1999, by P. K. Rose. http://www.odci.gov/csi/books/940299/art-1.html
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