First, I want to acknowledge the groundbreaking work of the late-Daniel Patrick Moynihan on the issue of government secrecy. I had the privilege of serving with Senator Moynihan on the 1997 Commission on Protecting and Reducing Government Secrecy, which he chaired. He also authored one of the most important works on the topic "Secrecy: The American Experience." In delivering these remarks today I am heavily indebted to Senator Moynihan's invaluable contributions in this area.
Each time our nation faces a threat to national security there is a powerful tension between the need to keep the people informed and the need to keep the enemy in the dark.
Such a threat presented itself on September 11. Three-thousand innocent people died. America's isolation as a continental power protected by two oceans ended. The ruthlessness of our enemies and our vulnerability to their unconventional weapons became frighteningly clear.
There is no doubt we now live in a period of grave danger. We face both the possibility of an internal threat of a conspiracy to sabotage our critical infrastructure – our buildings, our bridges, our water supply, our communications systems – and the external threat of a hostile nation or terrorist group acquiring dangerous weapons of mass destruction and threatening our nation or our allies.
Many consider the tension between secrecy and openness as a balancing act between civil liberties and national security.
According to this theory, the decision is how much or how many of our democratic principles are we willing to sacrifice for our security.
But, of course, when the choice is between survival as a people or as a nation against an abstract principle, the outcome is predetermined.
History has shown the fallacy of this analysis – excessive secrecy does not lead to improved national security. Just the opposite has proved true. Of course, there are secrets worth protecting, but a culture of secrecy has led to regrettable policy choices, wasted resources and a decline in public trust.
It is my view that the current administration has ignored the lessons of the past and has compounded our security problems by withholding vital government information from the American public=
The result has been corrosive for democracy. Public access to government information is a fundamental prerequisite to a functioning democracy. A democratic system is based on the notion that government legitimacy requires the consent of the governed. But to be meaningful that consent must be informed. In other words, elections are only legitimate if people know what they are voting for. And people can only know what they are voting for if they know what their government is doing.
Instead of engaging in a futile effort to achieve "balance," we should identify the limited universe of critical tasks that the government must kept secret, at least for a time. Operational plans, human source identities, and advanced weapon designs must continue to command the highest level of protection. For example, when the military fired a Hellfire missile from an unmanned Predator aircraft at al Qaeda leader Abu Ali driving down a road in northern Yemen – the secrecy of that mission was essential to success.
Some information must be closely held to engage in effective diplomacy and often our interest in protecting the method by which information was obtained is even greater than our interest in protecting its content.
In 2002, however, the government created more than 23 million official secrets at a cost of $5.7 billion. Secrecy has become the rule, when it should be the exception.
And in the Information Age, the appropriate role for secrecy actually maybe shrinking rather than expanding. In a world oversaturated with information it's often no longer just the access to information that gives an edge. It is analysis of information that creates a strategic advantage.
To better understand government secrecy policy today it is appropriate to start with the dramatic attack on New York City – not the one that took place on September 11, 2001, but the one that took place on July 20, 1916. That day, a group of German saboteurs blew up a large munitions dump on the city harbor, creating what the New York Times later described as "a colossal, ear-splitting, ground-shaking, glass-breaking explosion" that could be heard as far way as Maryland. Shrapnel pierced the Statute of Liberty. Thousands of people, many dressed in pajamas, milled around both sides of the Hudson and watched the sky turn red. Thus, terrorism was an issue of great national concern nearly 90 years ago.
The attack on the New York harbor and, more broadly, the beginning of the United States involvement in World War I, marked the birth of the modern secrecy movement. It can be characterized by the regulation of information made available to the public and the suppression of public discussion of critical information. With regard to the first, the army implemented the first modern information classification system during the first days of the first World War. With regard to the 2nd, just weeks after the United States entered the war, Congress passed the Espionage Act of 1917, which made it unlawful to disseminate information relating to the broad categories of "national defense" or "public defense."
The Espionage Act was later amended by the Sedition Act of 1918, which extended its prohibitions to encompass "profane, scurrilous, or abusive language about the form of government… the Constitution… or the flag of the United States, or the uniform of the Army and Navy."
This legislation led to the conviction and imprisonment of Socialist Presidential Candidate Eugene V. Debs for delivering a speech with an anti-war theme, the jailing of a man who produced a film about the American Revolution (it was thought to excite anti-British sentiments), and widespread censorship of the press.
In October 1917, Theodore Roosevelt expressed the prevalent attitude of the day: "The men who oppose the war; who fail to support the government in every measure which really tends to the efficient prosecution of the war; and above all who in any shape or way champion the cause and the actions of Germany, show themselves to be the Huns within our own gates and the allies of men whom our sons and bothers are crossing the ocean to fight."
It is the combination of the fear of the enemy as well as the fear of disloyalty – what T.R. referred to as the "Huns within" – that has motivated the withholding of government information from the American public. As apprehension of subversives rose, so did the scope of government secrecy. These issues never die.
Attorney General John Ashcroft, in an eerie echo of T.R.'s comment, made it clear that the "Huns within" syndrome was alive and well. Testifying in support of the USA PATRIOT Act, a law which significantly expanded the ability of the government to act in secret, Ashcroft infamously said: "To those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends. They encourage people of good will to remain silent in the face of evil."
The sentiments expressed by Roosevelt and Ashcroft were also apparent during World War II. At that time, the perceived threat was persons of Japanese decent. Between 1942 and 1946 more than 120,000 Japanese Americans, Japanese aliens and Alaskan Aleuts were rounded up and placed in internment camps. There was no evidence of any sabotage or any other subversive activity from such individuals. But for some the lack of evidence only confirmed the need for their internment, to prevent subversive actions in the future.
Today, the fact that there has not been another domestic terrorist attack since 9/11 has been citied to justify largely secret detainment of scores of Muslim and Arab men. This argument continues despite findings by the Justice Department's own Inspector General that many detainees were abused, denied their legal rights and held for long periods despite scarce evidence they had committed a crime. None, I might add were indicted for crimes of terror.
The connection to the threat, it seems, is assumed. The scarcity of evidence is only used to justify the clandestine and frequently lawless activities of the government – not to question the underlying presumption. It is the logic of fear.
Secrecy became more formalized and pervasive during the Cold War. The rise of Soviet power heightened anxieties both of external attack and domestic infiltration and espionage – communists and "fellow travelers" were the new "Hun within."
In 1947, the National Security Act created the Central Intelligence Agency and empowered its directors to protect "intelligence sources and methods from unauthorized disclosure." And from this relatively modest delegation of authority a vast system of secrecy was born.
As fears of the communist threat increased, the executive branch expanded the role of the intelligence communities in waging the Cold War – placing more and more of the government's operations under a shroud of secrecy.
In 1950, President Eisenhower issued an executive order allowing information to be classified in the name of "national security" and even extending classification authority to non-military agencies. Responding to criticism, Eisenhower later narrowed his order, but not sufficiently to prevent an explosion in classified information.
Stunningly, by 1957, the epidemic of over-classification was acknowledged by the government. That year a presidential Commission on Government Security concluded that over the last decade "there grew up a vast, intricate, confusing and costly complex of temporary, inadequate, uncoordinated programs and measures designed to protect secrets and installations vital to the defense of the National against agents of Soviet imperialism" had immerged.
The Commission's advice to reduce and control that system went unheeded. That same system, although somewhat narrowed or expanded by succeeding Presidents, underpins our classification system today.
The Bay of Pigs invasion of Cuba in 1961 demonstrated the unfortunate consequences of our increasing reliance on government decision making done exclusively through secret channels. The aim of the limited invasion – planned and carried out in a narrow, covert channel – was to spark a popular revolt against Castro. Of course, no such revolt occurred, and the failed mission set in motion a chain of events that led to the Cuban Missile Crisis of 1962 and the narrow avoidance of a nuclear exchange between the United States and the Soviet Union.
The year before the invasion, Lloyd Free, a social scientist here at Princeton, conducted an extensive public-opinion survey in Cuba. The study revealed that, at the time, Cubans were quite optimistic about the future and were not concerned about Castro – but rather the return of their previous dictator General Fulgencio Batista. Free unambiguously concluded that Cubans "are unlikely to shift their present overwhelming allegiance to Fidel Castro."
Even though this public information was specifically given to the U.S. government – it was ignored. This is one of the most tragic consequences of the culture of secrecy: public information becomes devalued, easily disregarded or dismissed.
The Bay of Pigs fiasco mirrors the problems associated with the U.S. invasion of Iraq nearly 40 years later. The United States concluded that Iraq currently possessed weapons of mass destruction based on information that it was provided largely in secret – even though much of this information was self serving, second-hand or otherwise unreliable.
For example, the government relied heavily on information provided to it by Ahmad Chalabi – who hadn't been in Iraq for decades and had a strong self-interest in precipitating a U.S. invasion.
Meanwhile more objective and analytic public sources – from the U.N. weapons inspectors and the International Atomic Energy Agency – suggested that Iraq no longer had a nuclear program and was unlikely to have any significant WMD program. This information, seemingly dismissed out of hand by the president and his advisers, turned out to be correct.
The consequences of the bloated secrecy bureaucracy were revealed in the 1970s. The Pentagon Papers case of 1970, the Watergate hearings of 1973 and the Church Committee of 1975 exposed how secrecy could be used – not to protect national security – but to avoid responsibility, conceal illegalities and accumulate power. The result was a legacy of failed policies, wasted tax dollars and a sharp decline in the public trust.
The Pentagon Papers contained a 40 year history of the United States-Vietnam relations. While it contained no information useful to America's adversaries, it did reveal – among other things – numerous occasions where government officials lied to the press and the public. The Papers were leaked to the New York Times by Daniel Ellsberg, one of its authors, and Nixon went to court to enjoin its publication.
That Nixon had the audacity to file the suit demonstrated the feeling of entitlement within the federal government to withhold information from the pubic for any reason. Thankfully, in an eloquently written decision, the Supreme Court rejected Nixon's request for an injunction.
Justice Potter Stewart, concurring in the decision, wrote "the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry – in an informed and critical public opinion which alone can here protect the values of democratic government."
Even Erwin Griswold, the then-Solicitor General who had the unfortunate assignment of arguing the case, later admitted that the suit was emblematic of the "massive over-classification of documents."
The most notorious example of the consequences of government secrecy is, of course, the Watergate scandal. The investigative reporting of Bob Woodward and Carl Bernstein revealed that Nixon had used the shroud of secrecy as a cudgel to target his political opponents – employing government resources to steal files and conduct illegal surveillance.
But it wasn't just one man's paranoia that made Watergate possible. Only the vast culture of secrecy, developed within government over decades, allowed Nixon to think he could get away with his machinations.
So much government activity was now opaque – who would notice the IRS's peeking through the files of an enemy's list, a few government "plumbers" keeping an eye on Nixon's foes?
Bob Woodward summed it up best: "Watergate is not one thing. It's a mindset."
Watergate brought the activities of the intelligence community under increased scrutiny. But it was a 1975 New York Times expose on the use of clandestine intelligence activities to monitor American student groups that prompted the first Congressional review of the CIA. which by then was as large as the State Department itself.
The Church Committee, along with its counterpart in the House, the "Pike" Committee, and even the Rockefeller Commission appointed by President Ford, exposed, in dramatic fashion, that the intelligence community had secretly conducted a host of illegal and outrageous activities. Among other startling revelations, the Church Committee found that the CIA had secretly:
– administered LSD to unwitting human subjects
– conducted extensive surveillance of American antiwar protesters
– engaged in numerous assassination and coup attempts of foreign leaders
In essence, the CIA – funded by taxpayers – operated as a separate, lawless, unaccountable government.
Committee chairman Frank Church, following the completion of his work, said: "The United States must not adopt the tactics of the enemy. Means are important, as ends. Crisis makes it tempting to ignore the wise restraints that make men free. But each time we do so, each time the means we use are wrong, our inner strength, the strength which makes us free, is lessened."
These comments are especially relevant in our current struggle with terrorism. We must be victorious. But we can only be truly victorious if we tackle the problem in a way consistent with our values.
That certainly has meant and may well mean the use of military force as well as the judicial process, but in America that also means open debate, the free flow of ideas, and accountability.
Let me talk about the Freedom of Information Act. The Freedom of Information Act, or FOIA, – first passed in 1966 – established the principle that government information should be provided to "any person" who requests it, unless it falls into one of several defined exemptions. But, for the first eight years of its existence, the Act did not live up to its promise because it allowed the government to prevent the disclosure of information for a host of reasons, including declaring it related to national security. There was no possibility of review.
But, following the Watergate scandal, Congress recognized the problem and, in 1974, overriding President Ford's veto, amended the FOIA to provide for de novo judicial review of executive branch decisions to classify documents, to determine if the classification was appropriate.
The 1974 amendments have led to some significant disclosures. But still FOIA has failed to live up to its full promise. This is due, in large part, to the willingness of government bureaucracies under both Democratic and Republican administrations to fight tooth and nail against even the most innocuous requests.
Let me give you one example. The FBI litigated for 14 years against a California history professor, John Wiener, to prevent the release of John Lennon's FBI file. The agency conducted surveillance on Lennon from 1971-1972 over concerns about his role in the anti-war movement. Apparently, the FBI got a tip that Lennon was prepared to disrupt the 1972 Republican Convention but continued to tail him even after they learned he agreed to go to the convention only if the protests were peaceful.
The FBI justified withholding much of its information on Lennon by referring to a list of boilerplate rationales for secrecy. For example, the government said the Lennon file must remain secret because it concerned "foreign relations on foreign activities of the U.S."
Apparently, Lennon went to Canada in 1968 after being temporarily banned from the United States and thus, the file contained some information provided by the Canadian government. Why was disclosing this information a threat to national security? According to the FBI, providing Lennon's file to the public could precipitate "foreign military retaliation against the U.S." And, only in this way, a brutal and bloody conflict between the United States and Canada was narrowly avoided.
The FBI eventually settled with Wiener and agreed not only to release the file but also pay for $204,000 in legal fees. What did the file reveal? As you might have guessed, nothing with any relevance to legitimate national security concerns. Apparently, in 1972, Strom Thurmond sent a letter to then-Attorney General John Mitchell suggesting that Lennon be deported to prevent him from showing up at the GOP Convention. Lennon also had some involvement in training a parakeet to squawk "right on" during anti-war protesting.
The Lennon case illustrates why, even after the passage of FOIA, government secrecy continues to be pervasive. Despite the law, disclosure of information, for the most part, depends on the good will of the government. Wiener was only able to play out the string of litigation because he was seeking information about a high-profile person and had financial backing from public interest groups. The average person who submits a FOIA request can't afford to finance 14 years of litigation.
Because of cases like that, conventional wisdom amongst reporters would lead you to believe that there is not a dimes worth of difference between administrations when it comes to secrecy. But as you might expect, I disagree. In the Clinton administration, we recognized the problem that over-classification posed to our democracy, and took a number of significant steps to make more information available to the public. Let me briefly make my case.
In 1994, President Clinton issued an executive order that declassified in bulk approximately 45 million pages of World War II and Vietnam War era documents – nearly 15 percent of the National Archives' holdings of classified materials.
In 1995 because of the leadership of Vice President Gore, for the first time, the overhead imageries from the Corona, Argon and Lanyard intelligence satellite missions were declassified – historic documents that will be of great value to scholars, as well as to the natural resource and environmental communities.
Three years later, again under the Vice President's leadership, undersea military data originally gathered to track enemy submarines was declassified and released to help researchers track marine mammals, predict deadly storms, detect illegal fishing, and gain new insights into the complexities of climate change.
In 1996, NSA released extensive information about the Venona project, ending a 50-year silence on one of cryptography's most successful efforts, and providing valuable information about Soviet attempts to infiltrate the U.S. government. That same year, NSA initiated "Project Open Door," releasing over one million pages of historic crypto-logic documents that provide insight into some of the century's most compelling stories.
That same year, we also worked closely with Congress, and in particular with Senator Leahy, to enact the Electronic Freedom of Information Act. Since President Clinton signed the bill into law, literally millions of pages of public information have been made available on the Internet.
But perhaps the biggest accomplishment of the Clinton administration was Executive Order 12958, which set tough standards for classifying documents and led to the unprecedented effort to declassify millions of pages from our nation's diplomatic and national security history.
Before President Clinton signed the Executive Order, a tiny minority of classified documents – only 5 percent – had a fixed declassification date. Since the signing of the Executive Order, 10 times that number are now marked for declassification in ten years or less.
Most significantly, since the Executive Order was signed, more than 930 million pages of historically valuable records have been declassified, with the prospect of many hundreds of millions more pages in the next few years. To give you a bit of a comparison, in the previous 15 years, the executive branch had declassified a total of 188 million pages. We departed the White House knowing that the extent to which we opened up our government's historically valuable records is a singular accomplishment.
But now, the Bush administration has used the very real threat of al Qaeda and their sympathizers to justify the same excessive government secrecy that has served us so poorly in the past. And they have achieved same unfortunate results – disastrous policy choices, cronyism and a further decline in public trust.
To be accurate, the Bush administration's penchant for secrecy began far before 9/11. Shortly after his inauguration, President Bush ordered a review of current policy regarding the disclosure of presidential records. He later signed an executive order allowing any current or future president to block the release of any presidential record, an order he then used to block to release of documents from Ronald Reagan's administration that were potentially embarrassing to members of the current administration. That executive order violated the spirit, if not the letter, of a 1978 law stating that presidential records belong to the public and requires most to be released within twelve years after a president leaves office. The law was passed in response to Richard Nixon's claim that he personally owned all his presidential records.
For his part, Vice President Dick Cheney has spent the last several years blocking the efforts of Congress, the Government Accounting Office and public interest groups to acquire information about his energy task force, including the names of energy company lobbyists who attended task force meetings and how much those sessions cost the government. One of those cases will shortly be heard before the Supreme Court.
It is telling sign that the use of government secrecy, which originated on the battlefield as a way to secure a tactical advantage over an opponent, has now degenerated into a method for Dick Cheney to secretly negotiate tax giveaways to energy corporations like Enron and its CEO Ken Lay and then conceal the discussions that led to them.
But, without a doubt, the terrorist attacks of September 11, 2001 exponentially expanded the administration's commitment to government secrecy.
In October of 2001, Attorney General John Ashcroft radically changed the Department's interpretation of the Freedom of Information Act, urging all government agencies to withhold any document if there was any possible legal rationale to keep it secret. In so doing, the Attorney General reversed Attorney General Reno's guidance and the fundamental principle behind FOIA – open government and the presumption of disclosure.
After the 9/11 attacks, libraries were ordered to destroy CD Roms of the US Geological Service.
Scientists have been pressured to voluntarily censor their own articles, or the government will step in and do it for them. Succumbing to this threat, the National Academy of Sciences has already agreed to censor any article that might compromise national security – even at the cost of discouraging critical new research on immunization and quarantine strategies that could protect us in the event of a biological attack. Even access to the IRS Reading Room has been restricted in the name of national security.
On March 20, 2002, Andrew Card, my successor as chief of staff to the president, issued a memo that encouraged agencies to consider removing "sensitive but unclassified information" from the public domain. In the wake of this decision more than 6000 public documents were removed from government Web sites.
Among the information no longer available: EPA Risk Management Plans, which provide important information about the dangers of chemical accidents – including emergency response plans. These documents were removed even after the FBI admitted there was no unique terrorist threat from their release.
Further, in addition to the new Department of Homeland Security, three other domestic agencies – the Department of Health and Human Services, the Environmental Protection Agency, and the U.S. Department of Agriculture – have been given unprecedented power to classify their own documents as "secret, in the interests of national security."
Congress, itself, is not immune from being left in the dark. Neither the House nor Senate Judiciary Committees have been able to get essential information about how the Justice Department's sweeping new law enforcement authorities under the USA Patriot Act have been implemented – despite the fact that all the members of these two committees have security clearances. The House committee chairman, Republican Representative James Sensenbrenner had to threaten to subpoena Attorney General John Ashcroft before the Justice Department would answer even the most basic question on the use of Patriot Act authorities.
But has more secrecy made us safer? In fact, just as it has done in the past, the excessive secrecy of the last three years has in many ways made us more vulnerable.
Consider, for example, the administration's approach to dealing with the serious homeland security threat posed by the storage of dangerous toxic chemicals. Industrial manufacturing facilities storing acutely toxic chemical – such as chlorine gas, ammonia, and cyanide – present a potentially enormous and devastating opportunity for terrorists. The EPA has estimated that at least 123 plants store toxic chemicals that, if released through explosion, mishap or terrorist attack, could result in deadly toxic vapor plumes that would put more than 1 million people at risk. The U.S. Army Medical Department's worst-case estimate for a terrorist attack on a chemical plant is that it would lead to about 2.5 million deaths.
The location of these sites is not a genuine secret. Some are not far away from where we are now. Let me show them to you. [Show slides]
There are practical steps that, if taken, could minimize or eliminate these threats. The facilities could substitute less toxic alternatives for their most acutely hazardous ingredients. They could convert to "just-in-time" manufacturing, whereby the most highly toxic molecules are synthesized immediately before use rather than synthesized separately and stored in bulk reserve. Or they can reduce storage volumes of the most acutely toxic chemicals.
And originally, risk reduction was the administration's strategy. They planned to inspect the worst facilities to ensure that practical and necessary steps to reduce unnecessary risk and to ensure public safety had been undertaken.
But after receiving intense pressure from the chemical industry, the administration backed down, settling for voluntary efforts by the industry to strengthen site security. Under this plan, plants may build stronger fences or add guard dogs – measures that do nothing to eliminate the target or reduce the risk of catastrophic accident.
Because the EPA is not even requiring that companies report to the government the steps they have voluntarily taken at their facilities, the government lacks needed information about the extent to which the dangers at these sites have been reduced.
And thanks to new secrecy provisions enacted at the administration's request, people living immediately adjacent to these potential targets know less than ever about what is going on behind the chain-link fences. Therefore, local citizens who might be affected are less able or likely to demand corrective action.
Are we more secure trying to conceal the fact that any one of the 123 chemical plants around the country could endanger a million or more people if attacked? Or are we better off informing the public so that they can demand that the risk of terrorist incidents or catastrophic accidents be reduced at those plants?
Are we more secure trying to conceal that U.S. customs inspectors are only able to examine 1 to 2 percent of the shipping containers entering the United States?
Or are we better off informing the public so that they can demand that the inspection process be improved by identifying vulnerable loading docks and tracking the movement and condition of each container from the point of origin to its arriving destination?
Are we more secure trying to conceal the Department of Energy's plan to ship high-level nuclear waste within a mile of congressional office buildings? Or are we better off letting the public know so that they can demand new routes or storage solutions that don't put the Capitol at risk?
We should think about these questions in an historical context. Over the last century our nation has become a superpower. We have achieved our success by creating a system of government premised not on secrecy but on accountability, openness ingenuity and debate.
We live in a society awash in information. Google, the most popular search engine, catalogues more than 3 billion web pages. But even Google misses most of it – Wired magazine recently reported that there are likely in excess of 1 trillion pages freely available on the Internet. In this kind of environment it becomes clear that it is analysis, not access, which often creates a strategic advantage.
In the face of these changes, we can choose to turn inward – but we do so at our own peril. There are solutions to the complex problems of the new century, solutions that will make all of us safer and more secure. But they won't be solved by a small group of insiders. They will be solved by all of us, working together, challenging each other and holding each other accountable.
That way, when we win the fight, we will still have an America that is worth fighting for.