Said Yates, “People in government like Dick Cheney and Don Rumsfeld know more about the different elements of the government, the intelligence community, its assets, what the military can and cannot do. They, as much as anyone else, know where to look for those black boxes that no one likes to touch.”
Still, Cheney’s office took secrecy to excessive lengths, as Bill Leonard, the head of the Information Security Oversight Office (ISOO) at the National Archives, would find. Leonard’s job was to oversee the way the government classifies national security information. From the start, he noticed weird things coming from the administration. For one thing, the White House counsel always deferred to the Office of the Vice President whenever anything related to Cheney landed on Leonard’s desk. Things as mundane as the vice president’s talking points were labeled Treated as Top Secret/SCI, or Treated as Top Secret Codeword.
What is the significance of such markings? In 2003, Cheney and his staff discussed how to handle the public relations aspect of an editorial in the New York Times written by Joseph Wilson, a former U.S. diplomat. In the piece, Wilson argued that there was no evidence to suggest that Iraq tried purchasing yellowcake uranium from Nigeria.12 Notes from Cheney’s meetings on the subject were marked Treated as Top Secret/SCI.13 According to Leonard:
That’s not a recognized marking. I have no idea if it was the intent, but I can guarantee you what the consequences of those markings are. When any of this material eventually does end up at a presidential library and access demands are being made, or it’s being processed for release, when some poor archivist sees material marked Handle as SCI, it’s going into the bottom of the pile, and it is going to get much more conservative review. Whether it was the intent to retard the eventual release of the information, I know that’s going to be a consequence of it.
The Office of the Vice President clashed with Leonard and the ISOO over its handling of classified information. Cheney’s office had filed routine annual reports on its classification activity in 2001 and 2002 but stopped doing so in 2003. A year later, the Office of the Vice President rebuffed an attempt by ISOO officials to inspect it. The office argued that since it had both executive and legislative functions, it was therefore not bound by an executive order on the handling of classified information.14
This offended Leonard. “Putting aside the constitutional position of the vice president, the very concept that nonelected government officials working in the White House, accessing the most highly sensitive information, and weren’t obligated to follow the rules set forth by the president, I found chilling, to tell you the truth.”
Addington would later argue that the Office of the Vice President is not an agency and thus not subject to ISOO’s oversight, a position the White House concurred with.15 The vice president managed to evade ISOO’s eyes through the end of the Bush presidency.16
In general, Bill Clinton’s record on declassification and secrecy is quite good, and he doesn’t get much credit for it. A billion documents were bulk-declassified during his tenure. Similarly, there were few leaks of sensitive information—and there was plenty of sensitive information to be leaked, including virtually everything about Clinton’s secret war against al-Qaeda.17 But habits remained hard to break. John Podesta, one of the architects of the modern Freedom of Information Act (FOIA) law and one of Clinton’s chiefs of staff, recalls a battle he “won once out of every ten times.” He said, “Sometimes, someone from the NSC would come into my office and hand me a newspaper article from overseas. It was marked ‘C’ for Confidential. I was quite an asshole about this, I admit,” he said. “I would go to the NSC executive secretary down the hall and ask, ‘Why is this classified at all? It’s a newspaper article.’ Then inevitably they would come back and say, ‘It’s classified because the president’s interested in it and that is strategic information.’ Okay. Yeah, right.”
The FOIA is an effective counterweight to government secrecy. It is also a much-abused law, overburdened by communities of conspiracy theorists who overwhelm FOIA offices with requests for information on space aliens and such. This frustrates professional historians and reputable transparency advocates, whose FOIA documents are simply added to the back of the not inconsiderable queue.
By design, the FOIA process is cumbersome for both the petitioner and the government. To ensure that no actively sensitive material is released, an FOIA officer must often submit the request to colleagues at multiple agencies for review. And though there are written standards defining what exemptions are appropriate, every federal agency interprets them differently. This inconsistency, especially concerning matters of national security, frustrates researchers, and comes back to the fundamental question of what exactly constitutes harm to national security and who gets to decide? And if different people given interpretive authority make different conclusions on the same data (inter-rater disagreement, as sociologists call it), does that not undermine the intellectual edifice of both the FOIA process and national security classification itself?
The National Security Archive at George Washington University has made a sport out of finding examples where one government agency considers something too sensitive to declassify, oblivious to the fact that another agency has already released the material. For example, many Cold War–era memos related to missile defense and nuclear war planning have been held back by the Defense Department, even though many have not only been declassified but actually published by the government in official, unclassified histories. The problem, as university researchers see it, is that the government refuses to establish uniformly enforceable standards for historical and legacy information and often refuses to revisit earlier classification decisions. According to William Burr of the National Security Archive, “Neither historians, taxpayers, nor the secrecy system itself are well served when declassification reviewers treat historical classified information in the same way as today’s secrets.”
The more secrets an agency holds, the better it is at frustrating the FOIA process, intentionally or otherwise. The CIA, for example, regularly denies requests under the “(b)(3)” exemption, which gives the government a way to protect things not formally classified as national security information but legally protected from disclosure. (FOIA does not force the government to reveal ongoing and vital national security secrets.) There are many statutory exemptions that make sense. Sometimes government documents contain private information about U.S. citizens, such as Social Security numbers. Others might reveal a company’s proprietary information. Some might contain facts pertinent to an ongoing criminal case. It’s not hard to imagine exemption power being so broadly construed so as to nix the release of virtually every document requested. But the genius of the FOIA is in one of its final clauses, flowing directly from a quirk of the classification system itself.
Suppose that a single sentence in this paragraph contains national security information classified as Secret, and that a sentence or two around it contains modifiers or clauses that provide details from which the secret can be inferred. That still leaves a large number of sentences that in and of themselves, and even taken as a whole, do not contain classified information. Under the law, the government must segregate unclassified parts of paragraphs. The FOIA works because the state cannot reasonably argue that every sentence in every paragraph in every classified document is itself properly classified. The FOIA officers are sworn to uphold the statute, so while they might be biased in favor of whatever agency they represent, they are obliged to segregate.
The (b)(3) exemption is tricky because of its vagueness. For example, federal rules of procedure prevent the release of information obtained by grand juries. The law seems clear: testimony and evidence presented during grand jury sessions are never to be released. But in some notable cases, judges have ordered the release of information, usually because it might be of significant historical value. So is the grand jury testimony exemption in fact absolute? And if it isn’t, what criteria should FOIA officers use when making decisions?
There are no easy answers to these questions and few forums outside of a courtroom to establish precedent.
The (b)(3) exemption also requires FOIA officers to know the intent and meaning of virtually every federal law proscribing a process for withholding information. The officers must also keep up with changes to these laws. And, once again, standards across agencies are markedly different. Often information will be denied under (b)(3) on the basis of a law that has expired or that has changed.
To help matters, as of 2009, new bills before Congress must specifically state if certain information is subject to the provision. But reform will be slow going. The CIA’s use of (b)(3) has prevented the disclosure of even the most basic information about how the agency works. Furthermore, the director of the CIA is legally empowered to protect the sources and methods by which intelligence is gained. But in 2004, that responsibility officially shifted to the Office of the Director of National Intelligence (ODNI).
The CIA, however, points to the National Security Act of 1947, which both established the CIA and appointed its director as head of the intelligence community. As such, the CIA continues to protect its sources and methods as if the ODNI did not exist. In theory, the ODNI could redelegate this power to the CIA, but it hasn’t done so, which means the CIA has been using a “sources and methods” exemption that, technically speaking, it no longer possesses.
A few litigators, such as the National Security Counselors firm and the American Civil Liberties Union, along with news organizations like ProPublica, have tenaciously explored the exemptions issue, and thankfully so. Attention must be paid to the finer strands of the FOIA process precisely because the law is so powerful. The FOIA is a tremendous check on government power, and the stronger it becomes, the more incentive the government will have to treat it respectfully. Researcher Jeffrey T. Richelson has been able to get entire National Reconaissance Office imagery satellites and their products declassified with a single FOIA; the catch: he knows what to ask for.18
There is also the powerful Mandatory Declassification Review (MDR), established in 1972 and revised and liberalized by Presidents Clinton and Obama. The MDR process allows anyone (a reporter, a citizen) to formally request the declassification of a document. The originating agency still gets to determine whether the document was properly classified, and the CIA has special powers to protect its information. But MDR provides an avenue for petitioners to twice appeal the decision to a review board, called the Interagency Security Classification Appeals Panel. In theory, the review board has a broader perspective on classification matters than do individual agencies, and its decision is binding. It is a formidable mechanism by which the issue of declassification can be forced (especially for documents written before 1966, when the FOIA was passed).
The catch is that petitioners must fully develop information about the classified subjects for which they are requesting documents. And agencies can still deny requests, on the basis that confirming or denying the classification status of a secret document would itself reveal the existence of the document. (There is a similar exemption called the Glomar Response that is used to protect highly sensitive compartmentalized intelligence programs. It is named after the Glomar Explorer, the ship built by Howard Hughes to try and recover a lost Soviet nuclear submarine.) While MDR does not have any direct bearing on the classification process itself, repeated reversals of an agency’s decision might provide incentive to the agency to make better decisions about what gets classified in the first place.
∗The OSD/SCO outed itself in 2010 at a classified military technology symposium whose agenda was made public. And it no longer operates from the office space described previously, so no operational details are being compromised in the retelling of the story. At the request of the Pentagon, the name of SCO’s director is being withheld even though it is easily searchable.
Notes
1. Robert M. Pallitto and William G. Weaver, Presidential Secrecy and the Law (Baltimore: Johns Hopkins University Press, 2007), 71.
2. John F. Sullivan, Gatekeeper: Memoirs of a CIA Polygraph Examiner (Washington, DC: Potomac Books, 2007), 12.
3. Ibid., 211–212.
4. The best official government primer on the poly is Educing Information: Interrogation: The Art and Science, compiled by the Intelligence Science Board in 2006. See chapter 4, “Mechanical Detection of Deception: A Short Review,” by Kristen E. Heckman and Mark D. Happell.
5. Intelligence Community Authorized Classification and Control Markings, Register and Manual, Volume 5, Edition 1, Controlled Access Program Coordination Office, March 30, 2012, pp. 54–57.
6. William E. Burrows, Deep Black (New York: Random House, 1986), 22–23.
7. Jeffrey Smith, Redefining Security: A Report to the Secretary of Defense and the Director of Central Intelligence, Joint Security Commission, February 28, 1994, p. 1, http://www.fas.org/sgp/library/jsc/.
8. Testimony of Senator Daniel Patrick Moynihan, Committee on Governmental Affairs, United States Senate, Hearing on Government Secrecy, May 7, 1997, http://www.fas.org/sgp/congress/hr050797/moynihan.html#3.
9. Joint Security Commission, Redefining Security: A Report to the Secretary of Defense and the Director of Central Intelligence, February 28, 1994, Chapter 2: Classification Management, http://www.fas.org/sgp/library/jsc/chap2.html.
10. Dick Cheney, In My Time: A Personal and Political Memoir (New York: Threshold Editions, 2011), 140.
11. Ibid., 141.
12. Joseph Wilson, “What I Didn’t Find in Africa,” New York Times, July 6, 2003.
13. Government Exhibit 2A, Bates Number 001746, p. 62, Washington Post, http://media.washingtonpost.com/wp-srv/politics/special/plame/GX2A.pdf.
14. Peter Baker, “Cheney Defiant on Classified Material,” Washington Post, June 22, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/06/21/AR2007062102309.html.
15. David Addington, Letter to John F. Kerry, June 26, 2007, http://www.fas.org/sgp/news/2007/06/ovp062607.pdf; White House Office of the Press Secretary, Press Briefing by Dana Perino, June 22, 2007, http://georgewbush-whitehouse.archives.gov/news/releases/2007/06/20070622-4.html
16. Kevin Bogardus and Rebecca Brown, “Cheney Gets Last Laugh,” The Hill, June 19, 2008, http://thehill.com/homenews/news/15345-cheney-gets-last-laugh.
17. Richard Sale, Clinton’s Secret Wars: The Evolution of a Commander in Chief (New York: Thomas Dunne, 2009).
18. Jeffrey T. Richelson, Lifting the Veil on NRO Satellite Systems and Ground Stations, The National Security Archive, October 4, 2012, http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB392/.
CHAPTER 14
Partisan Transparency
We are facing a [missile] gap on which we are gambling with our survival,” said Senator John F. Kennedy on February 29, 1960, during his campaign for the presidency. “Time is short. This situation never should have been permitted to arise. But if we move now, if we are willing to gamble with our money instead of our survival, we have, I am sure, the wit and resource to maintain the minimum conditions for our survival, for our alliances, and for the active pursuit of peace.”1
There was no missile gap. President Dwight D. Eisenhower’s obsession with image intelligence had paid dividends, and photographs from the U-2 spy plane program confirmed that if there was in fact a gap, it was in favor of the United States.2 Still, Eisenhower couldn’t publicly state such a concrete fact for fear of revealing what else the United States had gathered over Soviet soil.3 But the president feared that Kennedy, now owning and leading on the defense issue, was taking Congress and the electorate with him. Stuart Symington, senator from Missouri, was especially forceful in his denunciations. “A very substantial missile gap does exist and the Eisenhower Administration apparently is going to permit this gap to increase.”4
The president dispatched General Earle Wheeler, director of the Joint Staff for the Joint Chiefs of Staff, to give Kennedy a classified briefing on intelligence gathered over the Soviet Union. But Kennedy wasn’
t going to let facts stand in the way of a winning campaign theme.5
“By getting into this numbers racket,” Eisenhower would fume throughout the campaign, “and by scaring people, they are getting away with murder.” “Deterrent” had become a code word for unbridled military spending, enriching arms makers at the expense of the nation’s wherewithal. “Did they just want to build more and more Atlases for storage in warehouses? It was unconscionable.”6
As early as 1951, Eisenhower fretted over the growing defense industry. He considered the economy to be a national security issue and argued that “our system must remain solvent, as we attempt a solution of this great problem of security. Else we have lost the battle from within that we are trying to win from without.”7 In his first State of the Union address, he remarked, “To amass military power without regard to our economic capacity would be to defend ourselves against one kind of disaster by inviting another.”8 And leaving office, shaken by this debate that he had clearly lost, he gave his famous speech warning, “In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex.”9
When President Kennedy assumed office, his rhetoric collided with a solid, apolitical intelligence assessment. Eisenhower’s men had been telling the truth. There was no missile gap. The president greeted the news with a single dismayed expletive.10
Deep State Page 22
