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FOI UPDATE 2000: Government secrecy

By Steven Aftergood

Following several consecutive years of unprecedented declassification activity, the tide turned away from official openness in 1999. In several areas, secrecy actually increased for the first time since the end of the Cold War. Ideological opposition to openness, inflamed by allegations of Chinese espionage, led to significant reversals of earlier reductions in government secrecy. The United States government remains, paradoxically, both the most open in the world and the most prodigious producer of new secrets. Given its huge military budget and vast intelligence bureaucracy, the U.S. produces more new secrets more quickly than anyone else, including a remarkable 7.3 million distinct secrets in 1998, according to the latest data of the Information Security Oversight Office, which is an increase of 12% from the previous year. The ISOO also reported a total classification-related cost in government and industry of $5.6 billion, up from $5.2 billion the year before.

Nuclear espionage scandal
The single most influential factor affecting government secrecy policy in 1999 was the scandal surrounding allegations of Chinese nuclear espionage. This scandal generated potent political pressures to slow or even reverse recent trends towards declassification, particularly at the Department of Energy (DOE), where the vaunted Openness Initiative announced by then-Secretary Hazel O'Leary in 1993 has ground to a screeching halt.

Influential congressional leaders (as well as various eccentrics and mavericks) were unable to resist the temptation to demagoguery, and endeavored to establish a link between DOE declassification and Chinese espionage.

In the frenzy over defects in security at the national laboratories and elsewhere, Congress adopted several measures that will have a continuing adverse effect on openness. These notably included new spending limits on declassification, and a requirement to re-review hundreds of millions of pages of documents that had previously been declassified, in an attempt to locate stray nuclear weapons information that had been inadvertently disclosed. Congress also established a new National Nuclear Security Administration within the DOE. The impact of this new semi-autonomous entity is not yet known, but it probably does not bode well for openness and accountability within the nuclear weapons complex.

One consequence of all this congressional activity was a radical devaluation of official openness as an end in itself. This devaluation was evident, for example, in the decision to change the name of the DOE Office of Declassification to the Office of Nuclear and National Security Information. The declassification program that the government had boasted of just a few years ago is now downplayed or denied.

Intelligence budget
Another representative reversal in another agency was the renewed secrecy of the intelligence budget total, which was once again classified in 1999. Intelligence spending is an icon of secrecy for its own sake, which illustrates how secrecy is often unrelated to any threat to national security. Budget totals are precisely the kind of information that should be unclassified, because they are indispensable for public debate on government spending, and in fact their publication is constitutionally required. A 1997 FOIA lawsuit won disclosure of the total intelligence budget ($26.6 billion in 1997) for the first time since World War II. However, an identical lawsuit seeking disclosure of the 1999 budget figure was not successful, marking a reversal of prior trends towards greater openness and accountability.

Using the FOIA to probe secrecy
In general, the Freedom of Information Act continued to serve as an essential tool for citizens confronting government secrecy. Even in the worst cases, as in last year's unsuccessful lawsuit seeking intelligence budget disclosure, the FOIA helped to illuminate the extent of the secrecy problem. Current case law is such that most judges feel obliged to defer to even the silliest agency arguments about the need for classification. When it comes to classification policy, judges have largely ceased to exercise judgment. Adopting a statutory "balancing test" — requiring that classification decisions consider the public interest in disclosure together with the security interest in secrecy — and making such decisions subject to judicial review would be one way to impel judges to assert themselves and would help to provide a check on secrecy policy.

In one of the best cases, the FOIA helped to defeat an arbitrary secrecy policy affecting online information that was adopted by the Department of Defense. In late 1998-early 1999, defense agencies withdrew many hundreds of unclassified web pages from their web sites, in accordance with a new Pentagon policy, on grounds that they provided "too much information." (Other pages were legitimately withdrawn on privacy grounds.) Under the FOIA, hundreds of megabytes of these "withdrawn" Web pages containing substantive content have been recovered, and can now be reposted to the Web.

Steven Aftergood directs the Project on Government Secrecy for the Federation of American Scientists.

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