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Luncheon address: 'Reflections of a former government insider'

By Steven Garfinkel

This is an edited text of the keynote address Steven Garfinkel delivered at the 2002 National Freedom of Information Day conference. Garfinkel received the American Library Association's James Madison Award at the conference. In January, Garfinkel retired as director of the Information Security Oversight Office, after more than three decades in government service.

Ladies and gentlemen,

I will never be able to express adequately how honored I am, how humbled I am, to receive the James Madison Award. I have been very fortunate to receive a good deal of recognition during my career, but nothing equivalent to this. I most sincerely thank the American Library Association.

To me, what makes the receipt of this prestigious honor so extraordinary is that I achieved it in the capacity of a standard American bureaucrat — a government worker doing his job. Therefore, I accept it on behalf of the thousands of other government workers, in less visible positions, in less vocal positions, whose work contributed so significantly to my receiving this award. They, like me, believe in the right of the American people to know what their government is doing. Some of you are in the audience today. I thank you, too.

Over the last few months, I have learned a quite remarkable lesson — the best way to reinvigorate your career is to retire.

A little more than two years ago, I was on a panel at a symposium sponsored by the CIA. The other panel members were foreign officials representing their respective governments. The subject was the declassification of intelligence records. I unashamedly bragged of the accomplishments within the United States government in declassifying historically significant intelligence records. I also spoke of the fact that, notwithstanding these accomplishments, the critics of our program continue to berate us for not doing more.

Immediately following the panel session, the panel member from France, an elderly veteran of the French intelligence service, turned to me and called me a fool in both English and French — well, I think the French word may have meant fool. He angrily questioned why I would boast about declassification, when all it would get me was criticism from the openness fanatics at home and more criticism from abroad, where other governments felt threatened by our declassification program. He stated that in France the government would never consider declassifying intelligence records, no one complained, and nobody would be hurt by damaging disclosures. I smiled and thanked him for his kind words.

If I am a fool, I am a proud fool. I am fool enough to believe that one of the most positive features that distinguishes the United States of America from all other nations is the degree of transparency between the government and the governed. I also believe that this level of openness doesn’t just exist — it requires continuous vigilance, continuous commitment, and, like it or not, continuous criticism from those who feel we still have a long way to go.

Because of the tragic events of one-half year ago, many Americans are concerned that our expectations of openness are at risk — not just the stifling of progress, but the likelihood of causing regress. These concerns are understandable, just as the possibility of greater government secrecy is also understandable. This administration knows, as did its predecessors, that the one quality of life the American people want most from their government is security. Both historically and logically, security is inextricably linked to secrecy. Therefore, this administration, not out of ill will, not because it is a Republican administration, but because it is the administration in office on Sept. 11, 2001, is considering those means necessary to enhance both personal and national security. It quite properly sees that as its duty to the American people.

Unfortunately, reactive solutions to security concerns all too often prove over time to be the wrong solutions. They go too far, or they achieve only the illusion of enhanced security, not real security.

Relying on increased secrecy is replete with these risks. To be sure, secrecy has its immediate benefits, but it also has its downside. For one thing, secrecy has a shelf life. Over time, sometimes a very short time, what once was secret no longer is. Even more disturbing in the current environment is the prospect of making secret what is already well known. Such actions merely create the delusion of security, which is even more of a threat than no security at all.

As proponents of open government, we must work to prevent the delusion of security through unwarranted or ineffective secrecy. How can we do so in an environment fraught with anxiety and the need to do something?

Not surprising for someone who has recently been flooded with blandishments, I have a few suggestions. Although I have ideas on all sorts of issues, I’ll try to curtail my current advice to the area in which I spent most of my career — security classification and declassification.

Gratuitous advisory No. 1: Editorialize, editorialize, editorialize. This administration, like all administrations, reads the newspapers — or at least some newspapers. We have all witnessed a well-designed editorial or op-ed piece serving as the catalyst in the formulation or revision of national security policy.

But if you are going to write that op-ed piece, here’s another suggestion — keep it positive. Emphasize our tradition of open government. Emphasize the tremendous strides we have made in declassifying historically valuable records. Emphasize that denying the American public access to information is a far more serious matter than increasing the delays at an airport, or degrading the aesthetics of a national monument with jersey walls. Above all, emphasize that open government is the American way — not just the Democratic or Republican way, not just the liberal or conservative way. Liberals suggest that we should not unduly fear government. Conservatives suggest that we should not unduly trust government. As James Madison so wisely suggested, neither state of affairs is possible without an open government.

Gratuitous advisory No. 2: We need to do whatever it takes to get the public interest declassification board up and running. What am I talking about?

At the end of calendar year 2000, the Congress passed the Public Interest Declassification Act. The act called for the creation of the board — five members to be appointed by the president, and four other members, one each to be appointed by the majority and minority leaders in each house of Congress. More than a year later, not one member has been appointed. Therefore, the board exists, but only on paper.

A year ago, the non-existence of the board would hardly have mattered. As the proposed legislation had been amended over the course of several years, the resulting board’s functions eventually dwindled to that of an advisory panel only. Many considered its enactment a meaningless gesture.

Today, the existence within government of an advisory panel focused on declassification issues would hardly be meaningless. As the executive branch explores prospective changes to the security classification system, changes that could possibly do irrevocable damage to the declassification program, the voice of a public interest declassification board needs to be heard. We must urge the president and the congressional leaders to appoint their respective members of the board as soon as possible.

Gratuitous advisory No. 3: Stop filing so many lawsuits. Litigation intended to promote openness in government in the national security arena almost invariably harms the cause of open government.

Sure, it’s aggravating when the government refuses to declassify a 1917 document on secret writing or the amount of the CIA’s very first budget. But it’s devastating when the federal courts issue decisions affirming the correctness of the government’s actions. By now, everyone here should know that the courts almost never substitute their judgment for that of the executive branch on national security issues.

Moreover, a freedom-of-information request for the oldest classified document immediately implies the threat of litigation. This takes your request out of the hands of the custodians of the information and into the hands of the agency’s lawyers. With that transition, the operative question within the executive branch changes from, “Should we protect this information?” to “How do we protect this information?”

So ask yourself before you act, “What purpose does litigation serve?” If you really want access to that classified document, file a mandatory declassification review request with the agency, and appeal a denial to the Interagency Security Classification Appeals Panel. If all you really want to do is to make a statement, make your statement someplace other than in court.

Gratuitous advisory No. 4: When the administration asks for comments on prospective changes to the security classification system, focus on the changes that really matter. Don’t waste your input on issues that are largely meaningless rhetoric — things like “when in doubt, protect the information until you verify” versus “when in doubt, don’t classify.”

What are the issues that really matter? Here are just a few of them that possibly could arise in the course of the current review of policy.

  • Retaining a mechanism, like automatic declassification, that puts a significant onus on agencies to justify keeping information classified for extended periods of time.
  • Preventing a foreign government from having veto authority over the declassification of information in our archives.
  • Making sure that every agency and every category of information are subject to classification challenges and mandatory declassification reviews and that every official is subject to the system’s oversight provisions.
  • Maintaining the oversight authority of the Information Security Oversight Office and the Interagency Security Classification Appeals Panel.

Gratuitous advisory No. 5: My final advisory for today: Stop equating the support of openness in government with opposition to any statute that makes it a crime for an entrusted individual to leak classified information. Many of you here believe an anti-leaks statute is incongruous with your advocacy of freedom of information. I believe that the two positions are absolutely compatible.

As a matter of fact, what I find incongruous is that we have many hundreds of federal criminal statutes for relatively minor offenses, and yet we have no clear statute that makes it a crime to disclose classified information without authority.

Guess what. Sometimes that leaked information really does jeopardize lives or destroys invaluable assets. As my receipt of the James Madison Award suggests, I was an advocate for freedom of information and open government during my 31 years of government service. For much of that time, as director of the Information Security Oversight Office, I had the authority to seek access to more classified information than just about any other individual in the government. Not infrequently, some of the classified information I saw was, in my opinion, no longer sensitive by the time I saw it. In some cases, its classification was ludicrous. Never, however, did I contemplate disclosing that information to someone unauthorized to receive it.

Did that stop me from advocating freedom of information and open government? To the contrary. I used the system to try to get that information declassified. And when I failed, I lived with my frustration and waited for another opportunity to do it the right way.

The Congress can and should develop and enact a rational statute that holds the entrusted unauthorized discloser accountable as a criminal.

I began my remarks by noting that a French intelligence official had called me a fool for advocating a strong declassification program. I also mentioned that I smiled and thanked him for his opinion. My smile was not some kind of diplomatic masochism. Rather, it arose from the irony of the situation.

Just two weeks before that panel session at the CIA, I had gone to the French embassy in Washington to meet with a visiting official from Paris. He was a recently retired French army general who, during his career, had served a number of years in Washington as the military liaison.

My host told me that the French government had assigned to him the drafting of a new system for the eventual declassification of French military records.

The purpose of his visit was to learn more about the American declassification program. At the end of my visit he stated that over the years he had marveled at the level of openness that existed within the American government. It was that feature of our government that he admired most.

His words echoed those of a good number of other foreign officials with whom I met over my years in the Information Security Oversight Office. Each was highly complimentary, but each also noted that, for one reason or another, it was not possible for his government to adopt a similar system.

As I have expressed many times over the years, the American government stands apart, far apart, from any other government, either now or in the past, in the quality and quantity of information it shares with its citizens and the world. This openness is a defining statement about the kind of democracy we are. It is a defining statement about America. I, for one, am committed to doing all I can to maintain this standard, in fact, to keep us moving forward. I know that you are, too.

Thank you, again, for the honor you have bestowed upon me with the James Madison Award and for listening to me today.

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