Conference Remarks

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Remarks Of The Chief Of Staff To The 4th Annual Intelligence Community Information And Classification Management Conference

JOHN D. PODESTA
CHIEF OF STAFF
PREPARED REMARKS FOR
4TH ANNUAL INTELLIGENCE COMMUNITY INFORMATION
AND CLASSIFICATION MANAGEMENT CONFERENCE
November 3, 1998
Thank you, Ed, for that kind introduction.
It is a pleasure to be here this morning to discuss the topic of classification and declassification. Driving out here, I now see how the NRO was kept classified for so long -- no one can find this place. As Ed noted, I did recently switch jobs. You should know that there is nothing like a job switch to give one a personal appreciation for a uniform background investigation standard.
I did not want to miss this chance to talk to you about the Clinton Administration's commitment -- and my own personal commitment -- to openness in government.
The task in which you are engaged is at the core of what George Washington called America's "great experiment." Our nation was founded on a principle that was revolutionary then, and too often seems revolutionary today: that government depends for its legitimacy on the trust of the governed; that all citizens have the right to a say in the decisions made in their name; that, as Supreme Court Justice Louis Brandeis memorably said, "Sunlight is the best of disinfectants."
The concept of checks and balances was not limited to the design of the legislature; it was integral to the very design of our constitutional system. And when trust declines, the work of government can grind to a halt.
As Ed mentioned, I served on the Commission on Protecting and Reducing Government Secrecy, ably led by our Chairman, Senator Moynihan.
Many people thought that the Commission's name -- Protecting and Reducing Government Secrecy was an oxymoron.
But the truth is that there are secrets worth protecting: to protect national security, to engage in effective diplomacy, to fight terrorism and to stop the proliferation of weapons of mass destruction.
But as the commission noted the best way to ensure that secrecy is respected, that the most important secrets remain secret is for secrecy to be returned to a limited but necessary role...to reduce secrecy overall.
Those same principles underlie the Clinton Administrations commitment to the effective protection of secrets critical to our national security, while promoting openness in government. Three overlapping tenets underlie our policy. First, in a free society, the public must have access to information about the workings of government. Second, in the information age, government must use technology to promote openness -- but it must use it wisely, to prevent unauthorized access. Third, in an era of shrinking budgets, the management of government information must be more cost-effective.
Let me elaborate briefly on each of these points. First, the purpose of openness in a free society. Our founders knew that democracy cannot function in the absence of public information. But there are very practical reasons for greater openness in government, as well -- and great incentives for government to want to make that information available.
Greater openness permits more public understanding of government's actions -- and makes it more possible for the government to respond to criticism and justify those actions. Greater openness makes the free exchange of scientific information possible, which in turn encourages discoveries that foster economic growth. And greater openness, especially regarding the government's past actions, can help resolve long-standing controversies -- and may provide a guide for the future.
Of course, as I noted, some information is not appropriate to disclose, especially regarding matters of national security. The government has an unquestionable responsibility to assiduously protect such information, particularly when it comes to intelligence sources and methods -- and there can be no tolerance for its unauthorized release.
The second tenet underlying the Clinton Administration's policy of openness is the use of new technologies to increase the free flow of information. In 1996, we worked 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 with widespread public interest have been made readily available on the Internet.
This success is due in no small part to Vice President Gore's efforts to reinvent government so that it "works better and costs less." As a result, today, every Federal agency has a public web site where citizens can learn about policies and programs that affect their lives.
But we should not forget the same information revolution also creates new challenges for the management of information, particularly in limiting access to it. The new technology promotes access, and today computer security too often is an afterthought, a feature to be added in next release of software that has been rushed to market.
And I would only note in passing that beyond what have become the difficult but somewhat routine questions of controlling access to classified and sensitive but unclassified computer systems, government is just beginning to grapple with the national security challenges posed by access to open source information on the net. Can you imagine the allied armies planning the D-Day deception if every unit had its own web site? That can be the subject of next year's conference.
The third tenet I mentioned is that government management of information must be cost-effective. The E-FOIA statute I discussed earlier recognizes that it's cheaper to disseminate information that you know the public is likely to be interested in, than to wait for the public to request that information under FOIA.
FOIA is the least efficient way to make government information public, not only from a Federal budget standpoint, but also in terms of its cost to the public and the delay in getting information out. Our information management systems must be built to maximize the appropriate and timely dissemination of information to the public, so that we don't have to go back and release it on a costly, piecemeal, after the fact basis.
The President's policy on classification and declassification, embodied in Executive Order 12958, is built on these same tenets. As that Order notes, a sea change in international relations, signaled by the fall of the Berlin wall, adds an additional consideration to the mix and provides an opportunity to emphasize our commitment to greater openness in government.
You all are familiar with the Executive order, and most of you work under it and derivative agency guidance in your daily activities. Yesterday morning you heard the perspectives of two experts, Tim Wiener of the New York Times and Roz Mazer of the ISCAP, on the progress and pitfalls we have experienced under this Order. I want to briefly add my perspective, and then suggest what else needs to be done.
Under President Clinton's leadership, we have made quite a bit of progress. Since issuance of EO 12958, agencies have embarked on an unprecedented effort to meet the Order's declassification requirements.
In fiscal years 1996 and 1997, agencies declassified more than 400 million pages of historically valuable documents -- 50 percent more in the last two years than in the previous 16 years. The Information Security Oversight Office (ISOO) estimates that these 400 million pages constitute about a quarter of the total universe of classified pages subject to automatic declassification by April 2000. In other words, we are off to a good start. And I thank you for that.
Let me give you another example. In 1992, Congress established the Kennedy Assassination Records Review Board. In the aftermath of the assassination of President Kennedy, suspicions that the government had withheld information had eroded confidence in the truthfulness of Federal agencies in general and damaged their credibility. The Board was created to dispel this perception, and it has done a remarkable job. Its accomplishments include reviewing and voting on over 27,000 previously redacted assassination records, and obtaining agencies' consent to release an additional 33,000-plus assassination records. These records included previously redacted records from the CIA's Directorate of Operations, and FBI documents describing the FBI's attempts to track Lee Harvey Oswald's activities in Europe prior to the assassination.
None of this progress would have occurred without the excellent cooperation of these agencies. I think history will show that, for this unique set of records -- given the importance of their full release in terms of public confidence in government -- the process and expense were well-justified. The process permitted a few of the declassification recommendations to go to the highest levels, including the President. The Board is an example of how clear direction and accountability can produce progress.
I'm proud of other examples of promoting openness while managing risk to our national security. President Clinton's 1994 executive order that declassified in bulk approximately 45 million pages of World War Two and Vietnam war vintage documents -- nearly 15% of the National Archives' holdings of classified material.
In early 1995 the President ordered, for the first time, the declassification of overhead imagery from the Corona, Argon, and Lanyard missions -- historic documents which will be of great value to historians, as well as the natural resource and environmental communities.
In 1996, NSA released extensive information about the Venona project. This single act ended a 50-year silence regarding one of cryptography's most successful efforts, and provided valuable insight into 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.
When it comes to the declassification of information regarding nuclear age human experiments, once again, the Clinton Administration has led. The Energy Department's "Openness Initiative" incorporated both public meetings and extensive use of the Internet to answer many questions about the declassification and release of sensitive nuclear information and human experimentation activities. Less than one year after the President issued EO 12958, the Department of Energy declassified more than 1.9 million pages of formerly classified materials. Since then, the Department has declassified or confirmed unclassified more than 11 million pages. For the third year in a row, the Department of Energy is declassifying more documents than it is classifying.
Our progress is not limited to the declassification of old documents. Perhaps more significant is a trend that will affect future declassification. Before President Clinton signed the Executive Order, a tiny minority -- only 5% -- had a fixed declassification date. Since President Clinton signed the Executive Order, ten times that many are now marked for declassification in ten years or less.
In all these ways, the Clinton Administration has pursued a policy of government openness -- but we know there is far more work to be done.
FY 1997 saw a 50 percent rise in the number of classification decisions, although this was in substantial part due to a large increase in the number of military operations and exercises conducted during FY 1997. Implementation of the National Industrial Security Program, which many of you here care about, has been quite uneven and slower than hoped.
Finally, on the legislative front, the picture is cloudy.
In the last days of the 105th Congress, a provision was attached to the Defense Authorization bill. The Congress, in an apparently well-meaning effort to further protect nuclear weapons information, included an overly broad provision that will impede the declassification of historically valuable records over 25 years old.
The provision requires the Secretary of Energy and the Archivist of the United States to develop a plan to protect Restricted and Formerly Restricted Data from inadvertent disclosure during the automatic declassification of 25-year old records. In the meantime, agencies may not declassify any 25-year old records that have not received a page-by-page review. In his signing statement to the Defense Authorization, the President made a commitment that the required plan will be submitted within 90 days, and the National Security Council is moving forward to assure that that happens. In the meantime, for records less than 25 years old, current procedures continue to apply. Let me be clear: for records older than 25 years, agency automatic declassification processing, but not final declassification, will also continue.
This informationwhere it consists of core technical details about weapons of mass destructionis exactly the kind of information that must be protected from release. Accordingly, we will deal with this potential problem in a realistic way to protect that information, while assuring that it will have only a limited and temporary impact on the Executive order's goal of speeding the declassification of older historical records. I have discussed this matter with Secretary of Energy Richardson, and he assures me that there is full support in the Department for the policies and practices contained in the Executive order, and that he will be taking such steps as are necessary to assure such continued support throughout the Department.
More significantly on the legislative front, this year saw a great deal of hard work aimed at creating a statutory basis for the President's classification authority. This law, S. 712, the Government Secrecy Reform Act, sponsored by Senator Moynihan, essentially came out of the work of the Secrecy Commission. Congress was unable to complete this work this year, but sometimes these things take more than one try. Since Congress will be back in just a few months, I think it is worthwhile to go over the basis for the Administration's willingness to support legislation in this area, and the reasons why, ultimately, we were unable to support the particular bill that the legislative process produced.
Now there has been controversy about whether there can be -- within the structure created by the Constitution of the United States -- any law that would put conditions on the President's authority to control the classification of national security information. And so, during the legislative process, we consulted with the Justice Department on this matter, and they and we have concluded that it is possible under the Constitution for Congress to legislate in this area and establish a statutory basis for national security classification. But not everything that is possible is desirable.
So, what are the reasons why such legislation would be desirable? I think the reasons are actually laid out pretty clearly in the 1997 report of the Secrecy Commission. There is a lot of detail in there, but they boil down to two basic benefitsstability and openness.
On stability, as you all know better than I, since the Second World War, in virtually every new Administration where the political party has changed, new classification policies have been put in place. Because the process of classification and declassification is one which rightly contains a great number of checks and balances, making new policies effective is a slow process.
And so, the effect has been that one administration's policy changes have only begun to take hold when the next comes in and alters the course.
For a system that deals with time periods of 10 and even 25 years, such frequent change is not productive. A statute would provide a stable foundation for the classification system, and would ultimately result in more uniform and predictable procedures and results. An overarching statute which recognizes the President's constitutional responsibilities and prerogatives would also greatly mitigate the perceived need for more specific statutes, such as the proposed Human Rights Information Act, which, while well-intended, can actually disrupt the overall declassification process.
With regard to openness, I think there are two ways in which a statute would make a difference. First, the very process of developing a law that is acceptable to all parties provides a mechanism for the various interests at play to be balanced in a public manner. The development of laws is, by the nature of our democracy, a public process. And in this area, where the various agency and public equities often conflict and the stakes are high, it is highly appropriate that an open process be used to make policy. Second, once a statute is in place, the Congress then has the opportunity, on behalf of the public, to conduct oversight of the Executive's activities.
Now, it's no secret that Executive branches are not always brimming with enthusiasm for more Congressional oversight. But in this area, the President believes that the public interest equities require striking a balance for openness, for an advocate beyond that which institutionally exists in the Executive branch. Congress, acting responsibly can serve that function.
As this year's action showed, however, not just any statute will do. In May, National Security Advisor Sandy Berger expressed the Administration's willingness to work with Congress to reach agreement on a statute that would establish a statutory basis for the President classification authority.
At that time, we made it clear that any legislation must not impinge on the President's authority and flexibility to manage the classification system, within a broad statutory framework. As the bill evolved over the summer, a number our concerns were addressed by the Congress, but we were unable to resolve one intractable issue. That issue was a dual statutory requirement: first, that classifiers balance the potential benefits from public release of the information with the potential damage to national security from that release, and second, that those decisions would be subject to review by the courts.
In that the Administration strongly believe that commitment to openness with administrative accountability is better than an unpredictable litigation model in this sensitive national security arena.
Time ran out before we could resolve this dispute, but our interest in a statute remains, and I expect this issue to return in the next Congress, where we hope to work this out. From a policy perspective, a balancing test makes sense. In fact, we have a version of such a test in the current Executive order. Where we were unable to reach agreement with Congress was on the accountability for the application of such a test. Going to court is only one way of achieving accountability, and it is generally a time-consuming and expensive method, the costs of which, we believe, outweigh its benefits.
The statute would also have created an independent National Classification and Declassification Center to assist the President in managing the classification system. A strong and independent Center could make a real difference throughout the whole information life cycle, from creation to disposition. Working with agencies to develop and maintain agency classification guides would improve the front end.
The statute would also create a Classification and Declassification Review Board, which presumably would have performed most if not all the functions currently being performed by the ISCAP. The ISCAP, as you heard yesterday, has really been quite successful. Without going into the details of its accomplishments, I would say that classifiers can learn from its decisions so the issues do not have to be reviewed over and over. I applaud the ISCAP's initiative to create an outreach and education program to disseminate its decisions to agency classifiers.
As we enter the legislative process next year, I can imagine that such a administrative review board could become a first stop in classification and declassification disputes, before going to the courts.
As we approach this issue with the new Congress, we look forward to your input and suggestions.
Finally, let me conclude by saying that the Administration will continue to balance the vital interests of national security with the genuine claims of public openness. But doing so requires real choices. It requires us to make distinctions between those things that are unambiguously important to protect, and those where the public interest in disclosure outweighs the harm that could come from release.
This type of balance is more difficult than a policy of unthinking secrecy. In pursuing this approach, we seek to protect national security bu also to be true to our most fundamental values as a nation. For over two centureis, we have prospered and won because -- at our best -- we have found ways to do both. As James Madison wrote in 1822, " A popular government without popular information, or means of acquiring it, is but a prologue to a farce or tragedy, or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power which knowledge gives." I pledge to you that -- as long as I am Chief of Staff to the President -- I will work alongside with you to that noble end.