U.S. GOVERNMENT PRINTING OFFICE

66–249 cc WASHINGTON : 2000

S. Hrg. 106–713

S. 1801—PUBLIC INTEREST DECLASSIFICATION ACT

HEARING

BEFORE THE

COMMITTEE ON

GOVERNMENTAL AFFAIRS

UNITED STATES SENATE

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

JULY 26, 2000

Printed for the use of the Committee on Governmental Affairs

(

For sale by the Superintendent of Documents, Congressional Sales Office

U.S. Government Printing Office, Washington, DC 20402

(II)

COMMITTEE ON GOVERNMENTAL AFFAIRS

FRED THOMPSON, Tennessee, Chairman

WILLIAM V. ROTH, Jr., Delaware

TED STEVENS, Alaska

SUSAN M. COLLINS, Maine

GEORGE V. VOINOVICH, Ohio

PETE V. DOMENICI, New Mexico

THAD COCHRAN, Mississippi

ARLEN SPECTER, Pennsylvania

JUDD GREGG, New Hampshire

JOSEPH I. LIEBERMAN, Connecticut

CARL LEVIN, Michigan

DANIEL K. AKAKA, Hawaii

RICHARD J. DURBIN, Illinois

ROBERT G. TORRICELLI, New Jersey

MAX CLELAND, Georgia

JOHN EDWARDS, North Carolina

HANNAH S. SISTARE, Staff Director and Counsel

CHRISTOPHER A. FORD, Chief Investigative Counsel

JOYCE A. RECHTSCHAFFEN, Minority Staff Director and Counsel

KEVIN A. LANDY, Minority Counsel

DARLA D. CASSELL, Chief Clerk

(III)

C O N T E N T S

Opening statements: Page

Senator Thompson ............................................................................................ 1

Senator Lieberman ........................................................................................... 3

WITNESSES

WEDNESDAY, JULY 26, 2000

Hon. Porter J. Goss, a Representative in Congress from the State of Florida ... 5

Hon. Daniel Patrick Moynihan, a U.S. Senator from the State of New York .... 9

Steven Garfinkel, Director, Information Security Oversight Office, National

Archives and Records Administration ................................................................ 14

Steven Aftergood, Director, Project on Government Secrecy, Federation of

American Scientists ............................................................................................. 15

Warren F. Kimball, Ph.D., Robert Treat Professor of History, Rutgers University ......................................................................................................................... 17

Hon. R. James Woolsey, Shea and Gardner, and Former Director of the

Central Intelligence Agency ................................................................................ 20

ALPHABETICAL LIST OF WITNESSES

Aftergood, Steven:

Testimony .......................................................................................................... 15

Prepared statement .......................................................................................... 67

Garfinkel, Steven:

Testimony .......................................................................................................... 14

Prepared statement with an attachment ....................................................... 60

Goss, Hon. Porter J.:

Testimony .......................................................................................................... 5

Prepared statement .......................................................................................... 29

Kimball, Warren F.:

Testimony .......................................................................................................... 17

Prepared statement .......................................................................................... 73

Moynihan, Hon. Daniel Patrick:

Testimony .......................................................................................................... 9

Prepared statement with attachments ........................................................... 34

Woolsey, Hon. R. James:

Testimony .......................................................................................................... 20

Prepared statement .......................................................................................... 79

APPENDIX

Copy of S. 1801 ........................................................................................................ 84

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S. 1801—PUBLIC INTEREST

DECLASSIFICATION ACT

WEDNESDAY, JULY 26, 2000

U.S. SENATE, COMMITTEE ON GOVERNMENTAL AFFAIRS, Washington, DC.

The Committee met, pursuant to notice, at 10 a.m., in room SD–

342, Dirksen Senate Office Building, Hon. Fred Thompson, Chairman of the Committee, presiding.

Present: Senators Thompson and Lieberman.

OPENING STATEMENT OF CHAIRMAN THOMPSON

Chairman THOMPSON. Let’s come to order, please. I think Senator Lieberman will join us shortly, but since we have votes and

Congressman Goss has commitments, I think we should probably

get started.

Today, the Governmental Affairs Committee is holding a hearing

on S. 1801—the Public Interest Declassification Act of 1999. This

bill is only the latest in a series of legislative efforts in this Committee growing out of the 1997 report of the Commission on Protecting and Reducing Government Secrecy, which made very clear

that the Federal Government classifies too much information too

easily and for too long.

Like so many areas of national security law, information classification is a delicate balancing act. It is vital, of course, that we

protect information if its release would threaten our national security. Being too timid about classification or declassifying recklessly

can be a terrible mistake. At the same time, however, if the government classifies too much information, the system begins to break

down and everyone loses.

Overclassification deprives us of the intellectual synergies and

public accountability that can come from sharing information. It

can also lead people to stop taking security restrictions as seriously

as they deserve to be taken. To borrow a phrase from Supreme

Court Justice Potter Stewart’s opinion in the Pentagon Papers case,

if everything is secret then nothing is really secret.

Furthermore, even when information is not appropriate for public disclosure, overclassification within the government can deprive

officials of information they need to know by restricting access to

an unreasonably small number of persons.

These debates are important because our classification system

faces a huge and growing challenge. Today, our security agencies

are subject to an executive order to review for declassification everything over 25 years old. This program is only just beginning to

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bring our government’s overworked declassifiers into the age of

ubiquitous photocopiers, computer databases, and desktop wordprocessing, and the resulting explosion of classified records that

these technologies entail. What happens when they reach the age

of E-mail, blast faxes, and the Internet? The Commission’s report

concluded that our classification system has become unreasonably

large and complex.

As Senator Moynihan has previously pointed out to this Committee, secrecy is really a form of government regulation. In other

words, it has its place, but without careful oversight, it will do

what bureaucracies everywhere do if you leave them to their own

devices: Expand themselves beyond the bounds of reason.

As a result, Congress has tried twice in recent years to enact reforms of the classification bureaucracy. The first of these was

S. 712, the Government Secrecy Reform Act, which was introduced

by Senators Moynihan and Helms. That bill, which was modified

and reported out of this Committee, was an ambitious effort to codify many of the recommendations of the Commission.

While Congress has long regulated the classification of nuclear

weapons-related data through the Atomic Energy Act, the classification of other national security information has been left entirely

to Executive Branch discretion. S. 712 aimed to end this monopoly

by establishing for the first time a statutory framework for the

classification process. Although we had been working closely with

the White House in developing our approach to S. 712, this effort

collapsed when sweeping administration objections materialized

only after the bill had left our Committee. A successor bill, S. 22,

also languished.

The bill we are considering today, S. 1801—the Public Interest

Declassification Act of 1999, is the latest attempt to help reform

our secrecy bureaucracy. It would establish a Public Interest Declassification Board to advise the President on declassification policy and upon the identification and declassification of records of

‘‘extraordinary public interest.’’

As I indicated, our security agencies face a tremendous burden

with regard to declassification. Having for years classified information with great abandon, the government is struggling to deal with

a huge number of requests for declassification. Today, in addition

to the 25-year review, our security agencies must carry a growing

burden on the account of the proliferation of so-called ‘‘special

searches’’ requested by the President and by Congress.

This search process is time-consuming and expensive, and devours resources that otherwise might be spent on more systematic

declassification efforts or on fulfilling basic missions, such as intelligence collection and analysis. So, we seem to be having trouble

getting it right. For years, we classified too much for too long. Now

we are straining our system to declassify old records as rapidly as

possible, even though we still show no sign of slowing the rate at

which classified information is created.

Some worry that we are eating into mission functions by devoting increasing resources to mandatory declassification programs.

Moreover, in our zeal to move mountains of paper out the door, we

may also be releasing information that should properly remain secret. According to Energy Secretary Bill Richardson, for example,

3

nuclear weapons-related information has been accidentally released

as a part of bulk declassification programs during the Clinton Administration.

So, it is a question of striking the right balance, of finding a way

to release needlessly classified information without preventing our

security agencies from accomplishing their missions or letting sensitive information escape. The question for us today is to what degree will setting up the Public Interest Declassification Board contribute toward achieving that balance?

We have a fine group of witnesses today, beginning with the author of the bill and its most prominent supporter in the House of

Representatives. I look forward to hearing their views.

Senator Lieberman.

OPENING STATEMENT OF SENATOR LIEBERMAN

Senator LIEBERMAN. Thanks, Mr. Chairman. Sorry to be a little

late. I just ended a markup in another committee, but I am glad

I made it here in time to thank you for calling this hearing on a

very important, complicated and timely subject, which is, of course,

how our government classifies and declassifies information. The

question really speaks to the essence of our democracy, the citizens’

relationship to the government, the accountability of those in power

to the citizenry.

Of course, it is complicated because we are trying to balance the

public’s right to know with the government’s concern about information it has which may genuinely be secret in the sense—at one

point, at least—that its disclosure will adversely affect the national

interest, particularly the national security interest.

The question before us relates to the expectations, also, that government can reasonably set for itself. What volume and type of information is it possible to keep secret? Let alone the earlier question of what kind of information is it appropriate to keep secret and

for how long? What kind of apparatus do we need to maintain to

do so, and at what cost? What cost is appropriate or are we willing

to assume? Of course, the cost of keeping information secret has

got to be measured in more than financial terms.

One of the costs is the loss to our historical record, to our collective knowledge as a people. So, it seems to me that an important

goal of declassification is to enable us to revisit our history with

the benefit of new information, to throw more light on past events

that have been cloaked in secrecy, with the aim of helping us more

wisely carry out our present responsibilities and better prepare us

for the future.

It seems to me that it is very sensible then, that as we rethink

all sorts of government regulation and public access, which is much

in the air here in the Capitol today, that we come back to these

traditional questions of governmental secrecy and declassification

guidelines. Hopefully, those guidelines will be rational and systematic. They will place authority and accountability where appropriate. They will judiciously balance public access with authentic

secrecy requirements, and they will be efficient and cost-effective.

The arguments for the least possible secrecy in government, consistent with our security, are, to me, very powerful; not least

among them is the enabling effect upon Congress, to help us exeVerDate 11-MAY-2000 09:35 Oct 31, 2000 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 66249.TXT SAFFAIRS PsN: SAFFAIRS
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cute our rightful role in the oversight of government activities, including national security policy formulation and execution. But no

less important, as I mentioned earlier, is the public’s right to know

and the enrichment of informed public disclosure on issues of vital

importance to the health and future of our country. The community

of scholars that will sift through appropriately-declassified public

records will make a contribution to the public welfare that goes

well beyond academia.

Today, our witnesses are extraordinarily able to contribute to

this dialogue; and, particularly, they will be discussing the merits

of the Public Interest Declassification Act of 1999, which Senator

Moynihan has introduced in the Senate and Representative Goss

has introduced in the house.

We are truly honored and privileged to have these two colleagues

with us. As Senator Moynihan nears the end of his time in the

Senate, I find myself suffering from what psychiatrists might call

separation anxiety. Since I came to this Senate, if I may be personal for a moment, the Talmud instructs us, when we come to a

new place, to find ourselves a mentor, a teacher. And, not by his

choice, but mine, he became my teacher. I must say that though

I am truly privileged to serve with an extraordinary group of people here in the Senate, that there is no colleague that I have

learned more from than Pat Moynihan, and I appreciate that very

much, including on this subject.

I hope you will not think that I have gone too far if I say this,

but if I do not say it, it will always be in my mind. I was thinking

today, coming in, because of the extraordinary range of Senator

Moynihan’s experience in government over the decades, in various

executive and legislative activities—ambassador, Senator—who in

American history could I go back to and try to find comparison.

Probably it is because I have been reading too much lately in the

early part of our history, but I go back to John Quincy Adams and

maybe Jefferson. So, I think I could make a reasonable argument

for those comparisons. Anyway, I look forward to his testimony on

this matter, in which he is uniquely prepared, has served as chair

of the Commission on Protecting and Reducing Government Secrecy which, in 1997, unanimously delivered an important set of

recommendations on reforming our Nation’s system for declassifying and classifying information.

Also, Congressman Goss is a very respected member of the

House of Representatives, an authority on intelligence matters,

having served for 10 years himself as a clandestine services officer

at the CIA, chair of the House Intelligence Committee; and I must

add—it may seem parochial here, too, but I am being personal this

morning, a native of Waterbury, Connecticut and a graduate of

Yale University. How much better prepared could one be to assume

the large public responsibilities that he has taken on with such distinction?

So, I look forward to the testimony today and I thank you, Mr.

Chairman, for calling this hearing. I hope that we can find a way

to move this bill and pass it before this session of Congress ends.

Thank you very much.

Chairman THOMPSON. Thank you very much. I appreciate your

comments. I think all of our colleagues share your opinion with reVerDate 11-MAY-2000 09:35 Oct 31, 2000 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 66249.TXT SAFFAIRS PsN: SAFFAIRS
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1The prepared statement of Mr. Goss appears in the Appendix on page 29.

gard to Senator Moynihan, and certainly we are delighted to have

Representative Goss also here today, with his wide expertise.

Who wants to go first?

Senator MOYNIHAN. Mr. Chairman, as we are going to have a

vote, perhaps it could be that our colleague should go first so he

can get back to his chores on the other side.

Chairman THOMPSON. That would be fine.

TESTIMONY OF HON. PORTER J. GOSS,1 A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF FLORIDA

Mr. GOSS. Thank you very much, Chairman Thompson and Senator Lieberman. Thank you very much for the welcome invitation.

Senator Moynihan, thank you for the courtesy of accommodating

our schedule, as well as yours, I hope.

Mr. Chairman and Members of the Committee, I am pleased to

testify before the Committee today in strong support of S. 1801, the

Public Interest Declassification Act of 1999. That, of course, is why

we are here. Chairman Thompson, you have described, I think,

very well the problems that we confront, that we are trying to remedy. S. 1801 is a remedy. I think it is a good remedy. It comes out

of the cauldron after much heat and much consideration, and I

think that we need to get on with it. I, for my side, hope that we

are able to move it in the House, as well, and that is my intent.

Speaking to the bill for a moment and the problem a little bit—

and I have submitted a full statement, which I would ask be included in the record, and I would try and borrow from it.

Chairman THOMPSON. It will be made a part of the record.

Mr. GOSS. Thank you.

There is obviously a great deal of history on the shelves out at

the headquarters of the Central Intelligence Agency. Some of it is

valiant history, some of it is work-a-day history, and some of it is

just plain embarrassing. All of it is American history, however.

Much of what is on the shelves at Langley remains sensitive and

properly secured in vaults.

In this bill, we in no way diminish the right and the obligation

of the President of the United States and the Director of the Central Intelligence Agency to protect sources and methods. I, obviously, take no issue with the bona fide harm that may befall our

country and those who help us overseas if we get it wrong in matters of national security. This is serious business.

But much of what is on the shelves at Langley should be reviewed and considered for declassification, because, as the Chairman has pointed out, we tend to overclassify, and that is another

side of the problem we need to address down the road, as well. But

the systematic declassification of such documents over 25 years old

is, in fact, ongoing, as we know. The type of declassification which

is done under the executive order is the most thorough and

archivally valid method by which can ensure that, historically, significant documents can be systematically shared with historians

and, more importantly, with the American public.

But we can only do that if we get the job done, and the size of

the job is depicted somewhat in some of the displays we are going

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to see. The more we are diverted from that job by other demands

on the system, obviously, the less well we do it. This bill seeks to

create an orderly way to handle those diversions and the very big

load that has to be processed.

So, I guess, in a very real sense, the purpose of the bill is to

bring some order to some chaos, because it needs to be done. At

present, however, we have no system by which Congress, the Executive Branch, and the public can require and expedite the review

for declassification, called special searches, which I think we are all

familiar with, for records of extraordinary political or public interest. Of course, extraordinary public interest is a term of art in this

bill.

The explosion in special-search requests from the Congress, the

Executive Branch and the American public since 1993 has not been

cost-free. Since becoming Chairman of the House Permanent Select

Committee on Intelligence, I have become increasingly concerned

about the surge in special declassification requests and the unanticipated costs associated with those requests, because, indeed,

based on testimony we have had from the community, they mount

up and they are sums that could be used for other things, as well,

obviously.

In August 1999, I wrote DCI Tenet, seeking information on the

numerous special searches conducted since 1993. In its October 18,

1990 reply to my inquiry, the CIA noted, ‘‘Special searches are a

growth industry and compete with the mandates of many existing

information review-and-release programs.’’ Simply stated, each resource directed to a new special search reduces the resources previously dedicated to an existing program. Some specific efforts have

been deferred in their entirety; examples include a number of historical reviews previous directors scheduled for action, other efforts,

such as Freedom of Information, FOIA, requests suffer reduced

productivity. That, of course, is the public we work for and serve.

In some cases, however, Congress, policymakers, the Executive

Branch, and the public cannot and should not wait for the painstaking declassification of 25-year-old records. Congress needs information for its lawmaking. Policymakers need information for their

decisionmaking, as we know, and the public needs information to

ensure that its government is accountable and staying on course.

That is doubly true when we are talking about oversight and intelligence matters, because that is a great special trust that the U.S.

Congress has bicamerally, to make sure that our intelligence activities stay entirely lawful and within bounds.

There are several examples in my written testimony which, in

the interests of time, I will pass over, of the problems with special

requests. I will conclude by saying this, the Public Interest Declassification Act of 1999 before us establishes a structure by which

special searches will be done once and done right. Declassification

needs to be conducted in an orderly, systematic and appropriately

prioritized and funded program. Declassification should not be subject to an arbitrary and chaotic political process.

What this bill does is to provide a means by which we can get

important historical information as efficiently as possible to the

American people. In a perfect world, we would overhaul the entire

classification system, and I think that needs to be done. I believe

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that we do classify too much material, because it is the path of

least resistance, and I know that from experience. If I get a piece

of paper on my table and I am not sure what to do with it, I put

a confidential stamp on it and put it in the confidential box, and

then it goes in a process all its own. Then I will not have to worry

about whether I released something that was classified that I

should not have. So, the incentive is to do the wrong thing, and

that is something we have got to get at.

But to do this, at this point, is going to be a little bit like trying

to have the whole meal in one bite. We have got to do it one digestible bite at a time. We found that out in previous efforts. S. 1801,

I think, is a very important bite. The Public Interest Declassification Act of 1999 seeks to provide Congress, policymakers, the Executive Branch, and the American public with more of the history on

the shelves at Langley, and, in so doing, the bill would also give

us more confidence that what remains on those shelves is the stuff

that truly needs to be protected.

I very much appreciate your attention to my remarks, and I look

forward to working to bring about the passage of this first step toward a more efficient and more orderly declassification system that

will bring about greater accountability and transparency by going

to the device of this Public Interest Declassification Board, and the

legislation speaks very clearly for itself, I think, as to what is at

stake.

Before I finish, I simply want to pay my very deep respects to

my colleague from New York, who I have the greatest admiration

for. I think we are allowed mentors in the House, too; and I think

we are allowed to trespass slightly. I would say that the energy,

the experience, the erudition and, of course, the wisdom that I hope

some of which has rubbed off on me in the process of this undertaking, coming from Senator Moynihan, is well understood by his

colleagues and those of us in the House who have the privilege to

work with him, as well. I thank him very much for his courtesies

and help.

Mr. Chairman, I would be happy to answer any questions.

Chairman THOMPSON. Thank you very much.

We have, I think, about 10 minutes are left on the votes. If we

might, I suggest we just pose a question or two to Congressman

Goss, and then we three Senators come back. Is that satisfactory?

Senator MOYNIHAN. Sure.

Chairman THOMPSON. Congressman, just basically and quickly,

could you state what you perceive to be the primary benefit of establishing this Declassification Board? Obviously, many people

would like to go much further, and give the board much more authority. Some people say that the board might even create additional burdens beyond the ones we have now. How do you see this

board operating, to help strike this balance that we have been talking about?

Mr. GOSS. Simply, I think it will bring order by prioritizing requests. I expect that this is going to be a board of people who know

what they are about. That is very much the intent—requirements

and all of the details that goes in there, how we get this board. I

think it is very important. I think once we have done that, we have

created, in effect, a filter that is going to work to process these reVerDate 11-MAY-2000 09:35 Oct 31, 2000 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 66249.TXT SAFFAIRS PsN: SAFFAIRS
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quests. There are, obviously, huge redundancies, and some of the

examples I did not mention in my testimony; but it is in my written testimony.

I can give you examples of special access requests that members

of Congress have piled on top of each other when a subject of what

I will call headline interest has come across the scope on the

evening news. I can think of one case where we had nine special

requests. Well, obviously, the information is there and everybody

may have a different approach to it. But we did ask one board to

sort those out and to focus on how important that really is relative

to all of the other things that the process is doing in declassification, because we have much more to do than we have capability to

do at this time.

Chairman THOMPSON. Is there reason to believe that the Executive Branch or Congress would honor that analysis by the board?

Mr. GOSS. I would believe so. I think we have the ground rules

built in here. We have, basically, a scenario worked out in this bill

that appears to me to be very practical; and I think that the board

will have, certainly, accountability. I think it will have the opportunity, if it feels it has been wronged or its decisions have been

wronged, to bring that to the attention of higher authorities and,

certainly, to the public. So, I feel the accountability piece is very

well answered.

Chairman THOMPSON. Thank you very much. Senator Lieberman.

Senator LIEBERMAN. Thanks, Mr. Chairman. Representative

Goss, based on your own work as an intelligence officer and your

work as the chair of the House committee—and I know this is a

big question—but would you say that we are classifying too many

documents today?

Mr. GOSS. Yes.

Senator LIEBERMAN. That was a shockingly direct answer, and I

appreciate it.

Mr. GOSS. Well, I thought that was a very simple question.

[Laughter.]

Senator LIEBERMAN. It is. The second question, on documents of

25 years or older, do you think just inherently or automatically we

ought to be declassifying all of them or almost all of them?

Mr. GOSS. No.

Senator LIEBERMAN. No?

Mr. GOSS. The reason is very simple; 25 years is an arbitrary

number. I can tell you right now that, in my experience, people I

was working with who were still active more than 25 years ago

could be seriously embarrassed or, perhaps, put in danger if certain

documents were improperly declassified. It would be possible, perhaps, to publish or put out or make available to the public a heavily-redacted document; but it would be a meaningless document. I

think 25 years is an arbitrary number and I think it is a guideline

and should not be slavishly adhered to.

Senator LIEBERMAN. But you think that the commission that

would be created under the legislative proposal would be capable

of creating some guidelines that would allow us more efficiently

and cost effectively to sift our way through documents.

Mr. GOSS. I really do. That, as far as I am concerned, is the purpose of this. We could leave the system the way it is, and everyVerDate 11-MAY-2000 09:35 Oct 31, 2000 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 66249.TXT SAFFAIRS PsN: SAFFAIRS
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1The prepared statement of Senator Moynihan appears in the Appendix on page 34.

body will be unhappy with it, because it is a push-and-shove. It is

who has the sharper elbows to get in. If somebody has more clout

or a chairmanship that is a higher priority, and that is the special

request, that is probably the one that will end at the top until

maybe the National Security Adviser comes in and says, ‘‘I need

this now.’’

It is not a good system. Now, nobody is taking away prerogatives,

but everybody is trying to organize them in a more sensible way.

The other option is to throw millions more dollars at this thing and

hire a whole bunch more people and try and declassify. We have

already done that. We are spending a large part of our resources

on this. It seems foolish that we are out there spending money on

paper trails when there are so many other needs going unmet. But

history is an important part of this, and we need to spend money

on that to a reasonable degree.

Senator LIEBERMAN. Thank you. That is very helpful testimony.

Thank you for coming over.

Chairman THOMPSON. Thank you very much, Congressmen Goss.

We will be in recess to give us an opportunity to vote, and we will

hurry right back.

Mr. GOSS. Thank you, Mr. Chairman.

[Recess.]

Chairman THOMPSON. Senator Moynihan, perhaps we should get

started again.

Senator MOYNIHAN. Well, thank you, Mr. Chairman. As you

know, there is a second panel that awaits you, and I do not think

I should delay them.

Chairman THOMPSON. All right. If you would then proceed,

please.

TESTIMONY OF HON. DANIEL PATRICK MOYNIHAN,1 A U.S.

SENATOR FROM THE STATE OF NEW YORK

Senator MOYNIHAN. Sir, I have only a few things to add to the

excellent statement from Chairman Goss, who is determined to see

this legislation through. To give an example of what bedevils the

system, one at the trivial end and the other at the very serious

end, about 3 or 4 years ago, I received a letter from a professor at

a midwestern university who was writing a history of the Librarian

of Congress.

She said she had reason to think that President Ford had once

offered me this position, but that the matter was classified in the

Ford Library. They had some material, but they needed my permission. Well, yes, and what was classified, sir, I was an ambassador

to India. On my way back, I was going to stop in what was then

Peking and stay with our representative, George Bush, and Mrs.

Bush. Then I was going to stop at Pearl Harbor and work out some

things, make my way back to the United States.

So I cabled the White House, the Director of Personnel, and said,

‘‘These are my travel plans, and I will be in the States on suchand-such a date, and I will call you.’’ Well, that was stamped

secret. I can see that it is perfectly sensible to keep people’s movements in strange parts of the world secret while they are moving.

10

But, 20 years later, it is not a secret. It is well-known that I made

it back, and we had to have a classified cable system, which this

matter was put on the cable. In the Ford Library, this cable was

sent to the Department of State, a classified officer received it,

looked at it, checked it out and declassified it.

Now, please, that is what, of those 612 million pages, about 600

million are of that kind of information. Most of these were sensibly

classified, but they have a very short time-life, half-life. In truth,

about 12 million should still be classified. I mean, there are people

you know who have been working with you for years in other countries, and they live longer than you might think.

In our original proposal from the commission, which was incorporated in S. 712—you were very generous in that regard—we had

an idea that seemed to us central, which was that the person who

classified a document would put his or her name on it, and, at that

point, say how long it was to remain classified, a judgment that

could be changed later on, but you would know.

Now, it is completely anonymous and it never stops. On the other

end of the serious spectrum, you know about our work on the

Venona decryptions. Incidentally, sir, this is the largest revelation

we have ever had about the Soviet espionage during and after

World War II. I mean, it is just extraordinary to see it. It was requested by the Director of the National Security Agency and by the

Director of Central Intelligence. The whole declassification took 19

days. When you want to do it, you do it. When it does not happen,

it has got somebody that does not want it to happen—19 days for

this.

In the aftermath of—and this was done at the request of John

Deutch and was very profoundly influential on our commission

study—in the aftermath of that, I found myself wondering how

could it be that President Truman seemed not to know of this? By

1946, the Army security agent broke the first of the Venona

decryptions. They had different code names. Bride was an earlier

one. It was just, I mean, knuckle-whitening work. You did it with

pencil and paper. You were working on one-time pads.

I was in the Navy half-a-century or more ago, and had the onetime pads for our ship. You cannot break them. But the Soviets got

overconfident or overworked, and they began using some of them

twice, and an absolutely extraordinary man named Meredith Gardner, who lives out on Connecticut Avenue—his mind is as clear as

Easter bells—he was over in Arlington Hall. On December 10,

1946, he broke the first cable. They are the names of all the physicists at Los Alamos.

Now, standing over him, sir, providing him with sharpened pencils and cups of coffee and so forth was a ciphers clerk and Army

corporal, a KGB spy. From the instant we broke the first cable, the

KGB knew. Then came the time when, Kim Philby knew of this

material. We shared it with the British; and, of course, he shared

it with the KGB, then he defected. So, then we seriously knew that

the Soviets knew.

So, we were in a situation where we know that they know, and

they know that we know they know. The only person who did not

know, sir, was the President of the United States. As best we can

tell—you cannot prove beyond a doubt—but we have documents in

11

which the orders come from the newly-created Chairman of the

Joint Chiefs of Staff, Omar Bradley, that only he would tell the

White House about this matter, and nobody else was to. The FBI

was not to. CIA was not. He would.

This was not political. It was just organizational. He was friends

with Truman. They were both boys from Missouri, in the Army.

After all, Roosevelt was always ordering up new battleships, and

Truman was OK, but, this was Army property. I mean, that is just

the structural mode that produces this morass, and it can have

huge consequences.

Some years later, I was an aide to Averell Harriman, who had

been very much involved in all of those things, and I know for—

I mean, I cannot say I know for a fact—but he had no idea we

knew any of these things. If that is the case then, what is the case

now? You want to make it a more open system so that the people

in government get the information they need, not just the public.

That would be my point.

As you know, we had a much stronger bill last time. You reported it out, and suddenly the administration, which had been

part of our commission’s work, turned against it. That is to be predicted. It will not change unless we change it. Your point was very

well made. Apart from atomic energy information, all of the declassification system is based on executive order. I have talked to some

of the people in the early days, and the secretaries just had different stamps in their drawer. They would look at something and

they would say, ‘‘Well, it sounds secret to me,’’ or ‘‘It is top secret.’’

There was never much real thoughtful statement of how you decide

which and so forth. There is not today.

I think the commission that we are proposing, qualified persons,

cleared, will be the first effort by Congress to say, ‘‘Get yourselves

together and stop adding too much to the system, and somehow

work at declassification.’’ Realistically, you have a 50-year problem

here, and I do not know whether we ought to do anything about

it; but, certainly, we can start slowing down the accumulation.

That, sir, would be my judgment, and I would be happy to answer any questions.

Chairman THOMPSON. Well, thank you very much.

I wish we could take a good part of the rest of the day and just

listen to your rendition of history with regard to these matters. I

found it very interesting and enlightening. In listening to your accounting of the situation with regard to the Chairman of the Joint

Chiefs of Staff and the President, I am wondering the extent to

which we have a problem that is based on regulation and official

practice, on the one hand, or whether it is one just based on human

nature, or perhaps bureaucratic human nature.

Surely there was some other reason why President Truman was

not given this information, I would think. Surely there are reasons

other than just bureaucratic quagmire as to why these things are

treated the way they are. Of course, I know you do not claim that

this legislation is the cure-all for such problems—but you do feel

that it is a step in the right direction, as I do.

But I am wondering whether or not you agree with the assessment that a lot of these problems just have to do with the way people are in government, perhaps, and the need for better leadership.

12

Until we have someone from the top really cracking the whip on

these things, are we going to do much good? How you envision this

legislation will begin to push us in the right direction? Could you

elaborate on that?

Senator MOYNIHAN. Well, nothing very cheerful. We do have

some social science, if you do not mind, on the subject. Max Weber,

who was one of the founders of sociology, German, turn-of-the-century, his study was bureaucracy, which was something new. They

did not have that in the old days. You had uncles and cousins and

friends. They did not have examinations, and so forth. He said

right away that secrecy is the primary weapon of the bureaucracy.

They keep information from the parliament and they will keep

it from the executive. That is their strength. The pattern goes on.

The fact is that the Truman Library, sir, has no trace of any of this

information, and they had all the White House papers. People like

David McCullough, who wrote that fine biography, never heard of

Venona. I called him up—Venona—huh? That should not be decisive, because that name came along a little bit later. But Bride was

one of the other names, and they have none of that, either.

With the Soviet situation, we did wrap up that whole Soviet apparatus by about 1948, but it was the nature of the activities that

you could not go to court with it because you would have to tell

how you knew. But Mr. Weisband was convicted of traffic violations

or something; I mean, never really—got him out of the Army, as

it were. But the government had reason to be satisfied that they

were OK; that the Soviet system really dates from the 1930’s, and

it was disappearing fast, as, indeed, it did in Britain, too. France,

I am not so sure.

So, the general may not have felt that there was any need to give

it to the White House, because it was all done. And he would be

pretty sure, if he gave it to the White House, that somebody in the

White House would give it to Drew Pearson, and that is part of our

life, too. But I would have to say sir, and I will close, do not expect

a President to get interested in this. Presidents live day-to-day.

They have a short tenure. Structural issues of government just do

not absorb them. They give that to the Vice President, and the Vice

President does not have much luck getting it done.

That is not very helpful, but I think a group of informed persons,

working with ISOO, our Information Security Oversight Office, has

done a good job. We have the wherewithal. I think this legislation

would very much help, and I thank you for the opportunity and

your courtesy.

Chairman THOMPSON. Well, thank you very much. I mean, you

obviously set forth a problem, and I am sure that there are very

few members of Congress that really fully appreciate the problem,

much less the American public. Thank goodness we have some people that pay attention to these kinds of details and follow those

things that are happening which, as you point out, have consequences. One of the consequences, by the way, is that all of these

searches are eating into mission function for some of these agencies. They are spending time doing this instead of doing something

else.

So, you have the overclassification to start with, which means

that you have more documents to deal with than you should have.

13

Then you have the regular 25-year process, with a lot of resources

devoted to that, and then you have the special orders on top of

that. Basically, there is no one person or no one entity with any

oversight or any ideas as to how to coordinate all of that. Now we

are becoming immersed in paper, and this is just the tip of the iceberg, I suppose. Because of modern technology, it is going to get

worse, instead of a lot better.

Senator MOYNIHAN. Yes.

Chairman THOMPSON. One of the criticisms that has been raised

is that perhaps, under this bill, the proposed board would be able

to make recommendations to the President to declassify records in

response to the interest of the public in a national security matter.

Does this mean that the board itself could end up becoming the

source of additional special search requests?

Senator MOYNIHAN. Well, I would hope that legislative history

would make it clear that we do not intend that. That is one of the

problems we are trying to deal with, and this board has no power

of its own to declassify anything. When you say they will recommend it to the President, what you mean is they will recommend it to the National Security Adviser. Every so often, some

things may come along which should be opened up. Sir, put it this

way, more is at issue here than the efficiency of our bureaus and

agencies.

A majority of American people, the American public, think that

the CIA was involved in the assassination of John F. Kennedy, and

that was before that movie which showed it happening. I was in

the White House in that Southwest Room, just down the hall from

the Oval Office, with about eight people when the word came the

President was dead. Pretty dicey moment. Half the Cabinet was in

a plane crossing the Pacific on the way to a Cabinet meeting with

the Japanese; the President and Vice President in Dallas.

In the afternoon, we picked up on the news that the Dallas police

had arrested a man who was known to be involved with Fair Play

for Cuba. I met the Cabinet plane that arrived. They just turned

around and came back to Andrews that evening, and I stood there

at the bottom of the ramp, saying, ‘‘We have got to get hold of this

man. He will not get out of that jailhouse alive. The FBI has to go

in there or the Secret Service and get him; and if we do not get

him, what will we have? A conspiracy theory we will live with forever—I mean, for ages.’’

Then he was shot—Oswald. Then the President appointed the

Warren Commission. I went around, seeing people on the Warren

Commission. I had with me a just-republished volume, about 5

years earlier, of the 1880’s, which demonstrated that the Jesuits

had been behind the assassination of Lincoln. A century gone by,

it was still in circulation. I said, ‘‘Do you want more of this?’’

We do not. But the Warren Commission kept its papers classified. You could start weeping at this. It matters that people do not

trust government. I do not have to tell that to you, sir. Sorry. I do

not want to get carried away. We have some important witnesses

to hear.

Chairman THOMPSON. Well, what you are saying, though, is very,

very important. Thank goodness you have other outlets and forums

other than this to speak about this. I know you will continue to,

14

1The prepared statement of Mr. Garfinkel appears in the Appendix on page 60.

2The chart referred to submitted by Mr. Garfinkel appears in the Appendix on page 66

and I hope that you will, because what you have to say on this subject, as well as many others, is something the American people

need to hear. So, thank you so much for your service. Thank you

for this, and thank you for being here today with us.

Senator MOYNIHAN. Thank you, Mr. Chairman.

Chairman THOMPSON. Thank you very much.

I would like to recognize our second panel of expert witnesses.

Steven Garfinkel heads the Information Security Oversight Office

at the National Archives. Steven Aftergood is the Director of the

Project on Government Secrecy at the Federation of American Scientists. Dr. Warren Kimball is the Robert Treat Professor of American History at Rutgers University and the Former Chairman of

the Foreign Relations of the United States document series. James

Woolsey—and I do not believe Mr. Woolsey is here yet—is the

Former Director of the CIA.

Gentlemen, thank you very much for joining us here today.

Please proceed to make any opening comments that you would care

to make.

Mr. Garfinkel.

TESTIMONY OF STEVEN GARFINKEL,1 DIRECTOR, INFORMATION SECURITY OVERSIGHT OFFICE, NATIONAL ARCHIVES

AND RECORDS ADMINISTRATION

Mr. GARFINKEL. Thank you, Mr. Chairman. I am very pleased to

appear before you today to express strong support for the enactment of the Public Interest Declassification Act of 1999, as that legislation has been modified to meet the concerns of the administration. I speak on behalf of the administration, and from my perspective as Director of the Information Security Oversight Office.

My support arises from my belief that the establishment of the

Public Interest Declassification Board could not come at a more

propitious time. Under the policies of Executive Order 12958,

issued in 1995, the agencies of the Executive Branch, to their great

credit, have declassified many hundreds of millions of pages of classified information.

I call to your attention the chart that is attached to my statement,2 and now posted as an exhibit, which illustrates the enormous progress we have made to date and the challenges that remain. To many interested observers, this progress in classification,

while laudatory, is only the beginning of what needs to be done to

make available to the American people those heretofore-secret archives of governmental activity.

To other observers, declassification has proceeded at too rapid a

pace, outstripping our ability to be certain that we are not opening

up information that needs to remain classified in order to protect

our national interests, and at a cost that is too expensive to maintain on an annual basis. The establishment of the board offers the

opportunity, at a modest cost, for a panel of experts to provide its

immediate and continuing evaluation of these policies and their implementation.

15

1The prepared statement of Mr. Aftergood appears in the Appendix on page 67.

The timing could not be more critical. In January 2001, a new

President will take office. Because the security classification system has historically been based upon executive order, the new

President will very quickly receive conflicting advice about what

should be done with respect to the policies of Executive Order

12958. The existence of this board of experts suggests that any action that the President ultimately takes will benefit from a reasoned and reasonable analysis of the myriad options that will be

urged upon our new President.

The creation of the board portends another positive development,

a more objective analysis of special declassification projects before

they are enacted. While each of these programs may be argued to

be in the public interest, each also has a negative impact. Most significantly, the diversion of tremendous resources away from programs like systematic declassification and Freedom of Information

actions.

I am not suggesting that all special declassification programs

should be avoided. What we should try to avoid, however, are situations in which the interests of the few take precedence over the

interests of the many. The board will be particularly well-suited to

provide its expertise on these matters.

The board should also contribute significantly to classification

management and policy. We remain in a transitional period between the Cold War era and the post-Cold War era as far as our

national security policies go. Moreover, we are in the midst of a

technological revolution whose product is greatly enhanced public

access to information. The policies and decisions that we are making with respect to security classification are now more difficult

and problematical. The board’s insights will bring a welcome perspective to this complex environment.

Mr. Chairman, as I stated above, the establishment of the Public

Interest Declassification Board could not come at a better time for

providing expert advice on the controversies inherent in government secrecy and classification-and-declassification policy. Over the

past several years, the board’s input would, in my view, have been

most welcome and helpful; for example, when the Congress considered the impact of our declassification program on the protection

of information classified under the Atomic Energy Act; or when the

Congress and the administration have considered the establishment of new special declassification projects; or as the Congress

now considers legislation that would establish a new criminal provision for the unauthorized disclosures of classified information. As

a new Presidential administration assumes office, such examples

will surely multiply. Therefore, on behalf of the administration, I

most strongly recommend your positive action on S. 1801.

Chairman THOMPSON. Thank you very much. Mr. Aftergood.

TESTIMONY OF STEVEN AFTERGOOD,1 DIRECTOR, PROJECT

ON GOVERNMENT SECRECY, FEDERATION OF AMERICAN

SCIENTISTS

Mr. AFTERGOOD. Thank you very much, Mr. Chairman. Thank

you for holding this hearing. In the 2 years since this Committee

16

last dealt with government secrecy, government secrecy policy has

not been standing still. Unfortunately, in some important respects,

government secrecy has actually been increasing. For example, 2

years ago, in fiscal year 1998, the total intelligence budget was unclassified. This year, it is a classified national security secret.

Why should that be so? I am sure there is an explanation. I

doubt, however, that it has anything to do with national security.

At the same time that secrecy has been increasing in some respects, it has also been growing less effective in other respects. One

important example, I think, is the history of the Central Intelligence Agency’s 1953 covert action in Iran. That is a 200-page document that was ordered declassified, I believe, by DCI Woolsey

back in 1993.

Last year, the CIA testified in a Freedom of Information proceeding that the entire history had to remain classified, with the

exception of one single sentence. Fortunately, in my view, the entire document was then leaked to the New York Times, which published it on the Times website. I think just about any independent

observer would agree that the CIA’s classification judgment—and

it was a judgment, it was not a matter of failure to deal with it

or lack of resources—the CIA’s classification judgment was in error.

At any rate, what we are seeing is a growing number of leaks,

more voluminous, more substantial. So, there is certainly a role for

congressional action on this front; and although I personally have

been a little bit disappointed by the diminishing scope of the successive versions of this legislation, I still believe that it could potentially play a very important role.

I would say that, unlike some of the other panelists, I do not consider the prioritization of special searches to be a very important

function at all, particularly given the fact that the board will not

be able to enforce its recommendations. I just do not think that is

a very important function.

I think, however there are at least a couple of other functions

that are very important and that this bill would, as written, help

to advance. The first is that the proposed board could serve as an

independent, internal Executive Branch advocate for the kind of secrecy reform that I think everybody agrees is necessary. The board

could advance the proposals of the Moynihan Commission. It could

monitor the implementation of the executive order. It could point

out problem areas. It could develop bold new ideas of its own and

float them within the Executive Branch. It could advocate funding

for declassification in the budget-development process.

A second sort of parallel mission area for the board would be to

monitor the development of secrecy policy within Congress. There

has been lots and lots of secrecy policy development in the form of

legislation just in the last 2 years. More often than not, it is never

subject to public hearings. Nobody gets a chance to comment on it.

This board, I think, could play a useful role in monitoring the development of secrecy-related legislation in offering an independent

judgment on what is wise and what, perhaps, is less wise.

Those are very useful functions, and they do not currently exist

to the extent that they might; and, for those reasons, I think there

is sufficient justification to proceed with this legislation. I would respectfully recommend that it be adopted.

17

1The prepared statement of Mr. Kimball appears in the Appendix on page 73.

Thank you.

Chairman THOMPSON. Thank you very much. Dr. Kimball.

TESTIMONY OF WARREN F. KIMBALL,1 Ph.D., ROBERT TREAT

PROFESSOR OF HISTORY, RUTGERS UNIVERSITY

Mr. KIMBALL. Thank you, Mr. Chairman. I appreciate the opportunity to speak to the Public Interest Declassification Act of 1999.

I first do want to assure you that the decoration on my nose did

not come about as a result of hand-to-hand combat on a declassification issue.

At any rate, I really do believe that this legislation would be in

the national and public interest. It is my firm conviction that this

act, and the board it would create, will improve our ability to protect important national security information. At the same time, it

will promote public confidence in government by maintaining an

expanding knowledge of the history of how national security policy

was developed and implemented.

Moreover, the legislation takes a significant step toward cutting

the excessive costs of maintaining the security of classified information. How does the bill accomplish all of that? I mean, is it nothing more than a piece of innocuous legislation that just follows the

Hippocratic Oath: Do no harm? If it is just like chicken soup, you

know, might help, cannot hurt, then why create another government board that may live long after everyone has forgotten why or

even that it exists?

Were that the case, I would oppose creation of the board as a

piece of smoke-and-mirrors that only distracts from effective reform

of our government’s declassification programs. But that is not the

case. The Public Interest Declassification Board will inform and improve the healthy debate over what should and what should not be

kept secret. The board would also help to limit the plethora of special searches, those boutique declassification efforts that devour resources that should go to systematic declassification review.

Some of those special searches have been legitimate. Some have

been trivial. Many have been repetitive and unrewarding, as illustrated in some of the exhibits before you. All have been exorbitantly expensive in both money and work hours. All were or should

have been unnecessary. If effective, routine, comprehensive systematic declassification review were in place for all agencies, and if the

public believed in the integrity and thoroughness of those review

processes, then important documentation, such as what was uncovered by the Nazi gold search, would be routinely reviewed and declassified without an expensive special search.

The board established by this legislation will be able to foster the

development of effective, comprehensive systematic declassification

review programs for historical documentation by gathering information on best practices and by reporting on progress made. At the

same time, the board would assess the effectiveness and reasonableness of an agency’s declassification review program and recommend remedies for shortcomings, thus building public confidence

in the process.

18

But until that effective government-wide systematic declassification review exists, special searches will and should continue to be

proposed, so long as there are legitimate and important reasons.

But how can Congress and the White House best decide which specials will be legitimate and which will release important new information in which will not? How can the public—media, researchers,

pressure groups, individuals—be assured that their government is

not hiding the truth for the wrong reasons? The answer is provided

by this bill.

The Public Interest Declassification Board could and should

study any proposed special search, evaluate the results of similar

previous declassification efforts, examine the still-classified documentary record, and then report to the President and Congress.

Mr. Chairman, you asked earlier why we should think that this

board would be listened to, and I think that kind of a process that

I outlined would give the board such credibility that, I think, Congress and the Executive Branch would heed it.

In any event, that would provide Congress and the Executive

Branch with a validation from an independent public board of the

legitimacy of the request, and provide expert advice on establishing

priorities for those specials that should be implemented. I spent 23

years in the Naval Intelligence Reserve and have been a member

of the State Department Historical Advisory Committee for 9 years,

8 years as chair. I have come to appreciate the complexity of declassification issues, even for historical information that is 25 years

old or older.

So, before going any further, let me emphasize two points. First,

this legislation does not change the current approach to systematic

declassification review, which is aimed at historical records that

25- and 30-years-old. It is not aimed at current plans, operations,

and current intelligent activities. Second, declassification review is

not the same as declassification. Nothing in this bill changes the

current practice that puts declassification decisions in the hands of

the agency that has ownership or equity in the information. Nothing in this legislation threatens to change current information security procedures. Special compartmentalized intelligence, SCI, is,

quite appropriately, given special attention; nor can the board declassify anything. It can only examine, assess, advise and report.

Sensible, practical standards and guidelines for declassification

review can be and have been established. Since the early 1990’s,

systematic declassification review by the State Department has

opened up 95 percent of its historical records. Using the most-important-first, rather than an easiest-first approach, State Department reviewers have opened highly sensitive records of our diplomacy, as well as intelligence records, all without a single reported

breach of national security.

As an aside, to dispel rumors of security breaches caused by the

systematic declassification review program currently in effect, the

head of the Department of Energy’s Information Security Program

has stated that he has not uncovered any inadvertent disclosures

of classified information due to the systematic declassification reviews conducted under the current executive order.

Yet, with only one exception—the Air Force has put a successful

program in place—the State Department is the only major agency

19

or department that has reviewed and declassified, where appropriate, its historical records and made them available to the American public. During the now-ended Cold War, foreign and national

security policy became the responsibility of a great many agencies

and departments outside of the State Department, yet those agencies have not implemented similarly successful declassification review programs. That means that Americans and the representatives in Congress do not have comprehensive access to the record

of national security policy from 25-and-more years ago, at the time

when Gerry Ford was President.

Perfection is the enemy of progress. No declassification review

system can be perfect. To try to do so would be neither possible,

nor desirable. The cost alone would be staggering, the effect on our

democratic society even greater. Democracy is not a suicide pact.

No one wants properly-classified information to be inadvertently

released. But there is little risk of that happening when declassification review programs are applied, with the rigor of that implemented by the State Department.

This bill would not create instant public accountability for intelligence agencies, the Department of Defense or even the State

Department. Individuals will instinctively try to cover embarrassment, unethical conduct and foolishness by classifying the information that exposes their conduct. But if we can move a step closer

to opening the historical records to the scrutiny of the American

public, we will have won a battle in what is an ongoing struggle.

At some point, the door must swing open wide enough or the

very democracy that government officials and intelligence operatives are protecting is no longer a democracy. These are serious

issues for the republic that are worth an informed, responsible debate, something the Public Interest Declassification Board can facilitate. I have lots of guesses, I think reasonably-educated guesses,

as to why there are not fully-implemented, systematic declassification review programs in all the agencies. But that is something

that this Public Interest Declassification Board could help to create

and could study the issue and provide careful, well-researched answers and recommendations for remedies.

I have proposed three small amendments to the bill, Mr. Chairman that I will not go over here; but, fundamentally, they are specifically designed to improve the credibility of the board, because

it seems to me that if the board is to function effectively, it must

have the confidence of the public that it is independent. I should

say that the American Historical Association and the Society for

Historians of American Foreign Relations have both gone on record

very strongly as favoring systematic declassification review. I

strongly endorse this legislation as a meaningful step in the further development of a rational, responsible, cost-effective, government-wide program for the declassification review of that mountain

of historical documentation that threatens to bury us.

To quote you, in your opening statement, ‘‘If everything is classified, there are no secrets.’’

Thank you.

Chairman THOMPSON. Thank you very much. Mr. Woolsey.

20

1The prepared statement of Mr. Woolsey appears in the Appendix on page 79.

TESTIMONY OF HON. R. JAMES WOOLSEY,1 SHEA AND GARDNER, AND FORMER DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY

Mr. WOOLSEY. Thank you. Mr. Chairman, with your permission,

I would submit my testimony and summarize just briefly from it

in these oral remarks.

Chairman THOMPSON. It will be made a part of the record.

Mr. WOOLSEY. It is an honor to have been asked to testify before

you on S. 1801. Let me say that, first of all, although the tools that

are proposed by this bill are relatively modest, it seems to me to

be a positive attempt to begin to come to terms with one of the

most vexing problems in this important field of government secrecy, the issue of special searches. In time, it seems to me that

it might be considered by this Congress that this board should undertake other duties and responsibilities. But this is, at least, a

useful and important beginning, it seems to me.

I also believe that it is the beginning of wisdom in this area, to

recognize that there is a need both for reform, on the one hand,

and for caution and experimentation on the other. This bill seems

to me to be crafted in that spirit. Reform is important because, in

many ways, I think the system is broken and soon will be even

more so, as the digital age adds reams of new records, E-mails to

mention only one.

It is obvious that much of this classified material would be useful

to historians and other citizens for a range of important purposes,

but it is also equally obvious that some of it was improperly classified in the first place. I have had two recent examples; one, I ordered the declassification, as Mr. Aftergood said, of a number of

files on covert actions during the Cold War, when I was DCI in

1993 and 1994. Some of that material has been released. Some of

it, it was said subsequently, did not exist any longer in the government’s files. Some, I had remembered, regarding with Iran, had

been lost inside the government. But Mr. Aftergood, I am sure, is

correct in saying that it was intentionally withheld.

In any case, once it was released through a leak, after reading

it, I can see no good reason why that fascinating history of the

1954 coup in Iran had not been released. I am sorry it had to be

released through a leak, but I think substantively it was a good

thing for history, for people to understand what actually happened.

Also, I have recently represented several Iraqis in an immigration case in which the men were imprisoned because secret, classified evidence was introduced unilaterally by the government. After

several influential Senators wrote to the Attorney General about

this matter a couple of years ago, the government, in effect, said

‘‘whoops’’ and released about 90 percent of the evidence that it had

previously classified, saying that it had been improperly classified;

yet six men spent 2 years in prison and two men are still there,

in no small measure because of this improper classification. So, I

am personally acquainted with a number of cases in which I think

classification has been excessive.

On the other hand, there is good reason for the government to

be cautious with the release of some types of information, and it

21

is not only the operational files of the Deputy Directorate of Operations or Special Compartmented Information. Frequently, material, not only direct operational material, but other intelligence,

must be protected for many decades, not only 25 or 30 years, because often the substance of what is known about a foreign government or the time at which it was known can indirectly lead to the

betrayal of, for example, an agent’s identity or a broken code; and

these sorts of things have to be assessed carefully by experts.

Most importantly, much of what the U.S. obtains in intelligence

is obtained through liaison relationships, essentially trading intelligence with foreign countries; and those valuable relationships will

dry up if we release material, even 25 or 30 years or more after

the fact, without the permission of that Foreign Intelligence Service

from which it was obtained. I dare say that any American who was

a tourist in Jordan at the beginning of this year and whose life

might well have been saved by the very professional and cooperative Jordanian intelligence actions that thwarted terrorist actions

against American targets at the beginning of the year, would probably not be an advocate of releasing material received from Jordan

without Jordanian consent, thereby undermining U.S.-Jordanian

intelligence cooperation in the future.

Because of the complexity of these judgments and issues, it

seems to me that reforms need to be very carefully considered. In

my judgment, they should not be based generally, at least in the

intelligence area, on broad and automatic rules, such as a certain

number of years since a document was created. They need to be

tailored carefully to protect what has to be protected for sound reasons, and also to release whatever else can be released as promptly

as possible.

In this overall context, it seems to me that the Public Interest

Declassification Board established by the bill is a positive step. As

I said, its role may change over time, and it needs to accustom

itself, it seems to me, to experimentation, trial and error. Special

searches have certainly been overdone, but they can, from time-totime, be valuable tools. The board will not be able to achieve an

appropriate balance, even on this issue, on its own, because it can

only make recommendations. But even some cutting down of duplicative searches will be a step in the right direction for the very

hard-pressed professionals in the agencies who are trying to deal

with this problem.

I finally would say, Mr. Chairman, that I believe it would be useful, as Professor Kimball suggested in his written remarks, for the

board to meet at least two or three times a year and to consist of

persons other than current officers or employees of the U.S. Government. I would also suggest that it be selected with an eye toward diversity of experience. There should be both historians, for

example, and former intelligence and military officers; for it is only

out of debate about this type of very difficult subject—debate between people of goodwill who both have something to teach and the

humility to realize that they also have something to learn—that we

are likely to get any useful recommendations for improving the current, very unsatisfactory system.

Thank you, Mr. Chairman.

22

1The charts referred to submitted by Senator Moynihan appear in the Appendix on pages 43–

59.

Chairman THOMPSON. Thank you very much, Mr. Woolsey.

Thank you all.

Mr. Aftergood, I know that you are a strong advocate of more

government openness. I wonder how you view this discussion concerning special searches. Many people, including some of our witnesses, have argued that special searches actually cause harm by

draining resources from other declassification budgets and occupying manpower and so forth. Do you agree with this critique of

the special search process? To what extent do you oppose or support what is happening now—especially Congress’ actopms—with

regard to special searches?

Mr. AFTERGOOD. A couple of points. I generally favor a systematic approach to declassification. I think that is the most efficient

and most equitable means to meet the needs of the largest number

of people. On the other hand, there are cases, as Mr. Woolsey

pointed out, where special searches can be the most appropriate

means to address particular, urgent information needs. So, the answer is balance; a balance has to be struck. There is a need for discipline, not simply in the Executive Branch, but also in the Congress.

Congress should not be asking for things that it is not prepared

to fund. The current proposal is not entirely satisfactory to me, because it basically is limited to recommendations; and if people have

a powerful constituency behind them that are pushing for a special

search, then the recommendation of a board, no matter how distinguished, is not going to be enough, I think, to neutralize that political pressure. So, balance is the answer. I think, with or without

the board, a balance will be found.

Chairman THOMPSON. Well, obviously, a board is not going to

solve all of our problems.

Mr. Woolsey, I wonder what you think of that. Clearly, you have

mentioned some instances here where special searches are in order

and the only way to get to the bottom of some of these matters that

need to become public. On the other hand, of course, we seem to

be inundated by a bunch of maybe less-than-meritorious special

searches. How should we be dealing with this?

Mr. WOOLSEY. I would hope that the board’s recommendations

would help the Congress and other sources of special searches to

limit those searches to circumstances where they really are necessary and to stop the redundancy. There have been a number of

these areas that have been searched many times. I realize the

board does not have the power to do that, but if it is sufficiently

prestigious and is listened to, it may have some influence.

Chairman THOMPSON. Excuse me. Senator Moynihan had some

charts,1 I believe it is his charts, where showing that with regard

to certain issues in El Salvador, there were 9 special searches; for

Guatemala, 12; and for Honduras, 7—all under the category of ‘‘repetitive.’’ Is that what you are talking about?

Mr. WOOLSEY. That is it exactly. The problem is these issues become politically salient, and a number of different people, basically,

want to say, ‘‘I have ordered a search,’’ So, we get a lot of redunVerDate 11-MAY-2000 09:35 Oct 31, 2000 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 66249.TXT SAFFAIRS PsN: SAFFAIRS
23

dancy, and that is not a good use of the time of the professionals

who have to do this. As I said, in the intelligence area, I think a

rule-of-thumb is dangerous, especially if that rule-of-thumb is one

that is measured in years.

Now, the operational files of the Deputy Directorate for Operations and some in Compartmented Intelligence have been exempted from the automaticity, but that is not all, I think, that should

be exempted from the automaticity of being released after a certain

number of years. But it does seem to me to be incumbent upon the

government, if there is intelligence information—whether it is from

the Cold War, covert actions, or older estimates of the Soviet

Union, when the Soviet Union does not exist anymore—that can be

released, it has to be gone through very carefully. The professionals

ought to be spending their time working on releasing as much of

historical intelligence as can be released without endangering current sources and methods and making the difficult judgments that

are often entailed there, instead of doing one of these special

searches for the fourteenth time.

Chairman THOMPSON. Perhaps more subject-matter oriented

than just a broad chronological——

Mr. WOOLSEY. I think so. There probably are some areas, Mr.

Chairman, where the chronological rule is a perfectly decent ruleof-thumb, but I do not think intelligence is one of them. But I think

that it is incumbent on the intelligence community and, I think, on

the Congress that funds it—in order to be doing a decent job for

the historians who need to understand what happened in Iran in

1954 and the rest—to use the government’s resources in this area

wisely and in a balanced way.

It seems to me that something that inclines toward, even if it

does not absolutely require, a reduction in the redundancy of some

of these special searches, thereby freeing up resources to focus on

making the difficult and important judgments that are required in

the releasing of other intelligence information without automaticity, would be a reasonable thing for this board to encourage and

for the government as a whole to do.

Chairman THOMPSON. Mr. Garfinkel, you have been Director of

the Information Security Oversight Office for many years, including the period in the 1990’s when the administration was undertaking bulk declassification projects. It is my understanding that

bulk declassifications at the Energy Department resulted in the inadvertent disclosure of classified information relating to nuclear

weapons, and that accidental disclosures of national security information from other agencies, as a result of declassification programs

under executive order, have also occurred in several instances.

To the extent that you can discuss these matters in open session,

can you describe how the most serious of these incidents occurred,

and how you think we can properly safeguard against such problems in the future as we try to declassify the mountains of classified information that our government has produced?

Mr. GARFINKEL. Mr. Chairman, I believe that we need to use reasoned judgment, and as we have taken very radical new steps in

our declassification program, we have learned a great deal over the

course of the past several years. I think what we are doing now,

which is to identify those particular files that are most susceptible

24

to the inclusion of mismarked atomic energy information, should

suffice to prevent any release of information that could cause damage to our national security. I have also been very much aware that

there are occasions when bulk declassification makes a great deal

of sense. I have used the example that came very early in my own

career when I was asked to participate in the systematic review of

a number of procurements of uniforms and boots and what-haveyou during World War II. I was escorted to a room—not a room—

I was escorted to a three-football-field-length area at the Suitland

Federal Records Center full of classified records dealing with classified procurements of clothing during World War II and all kinds of

material that clearly no longer had any sensitivity. Were it not for

the opportunity to bulk declassify those documents, I suspect I

would have spent my entire career in that room, reviewing those

records, and would not be before you today.

Chairman THOMPSON. Mr. Woolsey, to what extent is inadvertent

declassification a problem? We know that it has happened in times

past, but how should we view that? Is it a major risk, do you believe? Factor that into the overall assessment.

Mr. WOOLSEY. We have a case, I think the one you asked Mr.

Garfinkel about. I believe that in the aftermath of President Clinton’s first executive order on this, the declassification process in the

Department of Energy resulted in the release of some 10 or 12 documents that had Restricted Data that was still important in them,

and that caused, I believe, some changes in the process. So, it does

happen.

Normally, in intelligence areas what has happened is that the intelligence community has fought hard against having its records included in automatic declassification areas. As I said, it has succeeded to some extent. So, I cannot think of—immediately—any

major problems that have arisen from automaticity, with respect to

things like the Directorate of Operations’ files.

Chairman THOMPSON. I take it that the particular inadvertent

releases we are talking about for the Energy Department of Information was not under one of those exclusions that cover

intelligence——

Mr. WOOLSEY. I think that is correct. I think it was pursuant to

the President’s executive order, whatever that is—one-two?

Mr. KIMBALL. The one before the current one.

Mr. WOOLSEY. The one before the current one, the one back in

1993, 1994. I do not recall the number of it right now.

Chairman THOMPSON. There are, obviously, some very sensitive

documents that are not, perhaps, within the intelligence exclusion,

per se. Is that what you are saying?

Mr. WOOLSEY. Absolutely, and they can get caught up in the

automatic release, as apparently these 10 or so did. But there certainly are cases, such as the one Mr. Garfinkel mentioned, where

any reasonable common sense would say we could save a lot of

time by having an automatic rule. The problem is this is not an

area where generalizations hold for long. A lot of people believe

that as long as what you are declassifying in the intelligence arena

is estimates or assessments, rather than operational data, it can be

done rather freely and easily; and, indeed, people leak intelligence

assessments, in part, because they think there is no real harm to

25

it. Whereas, in fact, depending on how it is written, it can be extremely damaging to intelligence sources and methods because of

the combination of the substance of what is in the assessment and

the timing, the time at which one knows it or is known to have

known it.

So, even things like the estimates dealing with the Soviet Union

that my predecessor, Bob Gates, ordered released, or the covert action files that I ordered released, those cannot be done by a ruleof-thumb, either. They really need professionals going through.

Now, professionals make misjudgments. I think whoever looked at

this Iranian 1954 file and decided it had to all be withheld made

a bad judgment. So, you really do need to have smart people who

know the business and have general guidance, and who have both

the respect for the public’s need to know and a professional concern

about not damaging intelligence sources and methods. You have to

have them go through these documents carefully if they have anything to do with intelligence, and also in some other areas as well.

That takes time, and it is not easy.

Often, these are retirees who are brought back on contract, but

one has to pay them. If you want people of that caliber, when you

have to have people who know what they are doing going through

these documents, it is expensive.

Chairman THOMPSON. Dr. Kimball, first I will thank you for your

suggestions on improving this legislation. In your testimony, you

argued that, with the exception of the State Department, most government agencies holding classified information have not developed

a very good systematic review program. Do not quite a few specific

committees, boards and panels already exist to give the principal

agencies advice on this sort of thing? Is this not what your own

State Department Historical Advisory Committee did for the State

Department? If panels, such as your committee at the State Department, can do such good work in helping their agencies develop

proper, systematic review efforts, should we not be trying to get the

other bodies that already exist to offer better advice, rather than,

perhaps, just creating another organization?

Mr. KIMBALL. There is a difference in nature of these bodies. The

State Department Historical Advisory Committee and this board

that would be created exist because Congress has passed a law creating them. As far as I know, there is no other historical advisory

board to any government agency related to classified material that

exists, except the State Department committee. That makes it a bit

more bulletproof. Not too many years ago, one of the intelligence

agencies was unhappy with the advice it was getting from its—

well, it does not call it an advisory board, but its historical study

group, whatever it was called—and suddenly that agency decided

that there were term limits for the members of that advisory

group. Three of them left almost immediately.

Now, maybe that was a coincidence, maybe not. All I know is

that I think that group has got the message. So, therefore, they

were not able to act in the public interest the way I think they

should. The Foreign Relations Act of 1991 created a special situation, whereby Congress went a small, but significant, step in the

direction of saying what should be declassified. It was very general,

but what it said was, in doing the history, the foreign policy, forVerDate 11-MAY-2000 09:35 Oct 31, 2000 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 66249.TXT SAFFAIRS PsN: SAFFAIRS
26

eign relations of the United States for the foreign relations series,

that series, that record, should be comprehensive and accurate.

That word, comprehensive, covers a lot of territory. It did not say

exactly what to declassify, but it did say that those things had to

be reviewed and what was published had to be comprehensive.

That has been an enormous success. To be quite honest, the CIA,

I think, was quite unwilling to cooperate in the beginning, and I

must say right now has become quite willing to cooperate. It has

been a process of 9 years of negotiating, arguing, disagreeing,

agreeing, and it is my opinion now that there is a sense of cooperation between the CIA and the State Department on this declassification issue. That agreement, by the way, follows pretty much

the general guidelines that Mr. Woolsey outlined as to what can

and cannot be declassified. To me, the key difference here is that

our committee, the Historical Advisory Committee, would not go

away, and that meant it had to be dealt with in a straightforward,

honest, responsible manner; and the result has been positive.

Chairman THOMPSON. Mr. Woolsey, you, perhaps, are the only

one here that has been on the receiving end of declassification advice from organizations that might be analogous to the proposed

board. What was your experience as Director of CIA with bodies

such as the CIA’s Historical Review Panel, the Interagency Classification Appeals Panel and Security Policy Advisory Board? How

useful did you find the advice from such organizations? Did they

make recommendations to you or others about these matters? Did

they ever offer their opinions on any special search or other similar

undertaking? Did they ever talk you out of a search or help you do

so?

Mr. WOOLSEY. I did not get too involved in decisions about individual searches, Mr. Chairman. As a general rule, I took over the

DCI job in early 1993, just a little more than a year after, essentially, the demise of the Soviet Union and the end of the Cold War.

So, it was fairly early in the transitional period and, to be, I think,

fair to the people who were involved in this, they understandably

still had, in many ways, a kind of a Cold War mentality about this

issue, especially with respect to releasing material about Russia,

China, Eastern Europe and the like.

But my predecessor, Bob Gates, had made a very good beginning

by ordering the release of a number of estimates of the Soviet

Union on the very excellent theory that since the Soviet Union did

not exist anymore, one could have a considerably more liberal attitude toward releasing estimates than, say, with respect to China,

which very much still existed with the same government that it

had during the Cold War and for which release of some types of

estimates could create political and diplomatic problems. But the

Soviet Union was gone. They were just starting to come to terms

with that, and I think there was some enthusiasm among some of

the top people for following on Bob’s initiative, and that is what led

us to take, first, an initial look at these Cold War covert actions,

and for me to order the release of a number of those.

I was disappointed later to find, within the last few years, that

some of that material did not exist or was not released for one reason or another. Some of it was released. But that was, frankly, my

major involvement, not individual searches or individual material.

27

What would happen is you would continually get, at budget time,

the poor people who had to do this coming up and saying, ‘‘Look

we have reduced our backlog on FOIA requests by such-and-such,

our backlog on this by so-and-so much, but we are losing ground

because we are getting all of these special searches and so forth.’’

It is a continual struggle, largely over money, because you can

do a lot of these documents and do them intelligently if you are

willing to pay for it. There are a number of retirees around Washington area who have expertise and are quite bright and able people who are willing, on a part-time basis, to come in and read

through materials, some of which they were familiar with when

they were on the inside, and to make these kinds of judgments. But

they have to be paid. That is what it really almost always comes

down to: Are the intelligence committees and the appropriations

committees willing to fund things like substantial increases in payments for retirees, to come back and read through records? That

is what it really kind of comes down to.

Chairman THOMPSON. Gentlemen, thank you very much. It is

past noon now, and I think we ought to adjourn. But this has been

extremely helpful. Under Senator Moynihan’s leadership, perhaps

we can move the ball down the field a little bit further with regard

to this complex, difficult issue.

Thank you very much for your cooperation and your testimony

today. The record will remain open for 2 weeks following the close

of this hearing.

[Whereupon, at 12.11 a.m., the Committee was adjourned.]

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