A Culture of Secrecy: The Government Versus the People’s Right to Know
Edited by Athan G. Theoharis
University Press of Kansas. 245 Pages. $29.95.Has unwarranted secrecy caused needless harm to a democratic society and in the process to the practice of investigative journalism? These two books answer affirmatively. They share a commitment to openness and regard the post-Cold War era as an unparalleled opportunity to challenge a secrecy system based exclusively on standards imposed by executive orders. The authors, nonetheless, offer differing conceptions of the nature and scope of our nation’s current secrecy problem. Simply put, Daniel Patrick Moynihan defines the problem as “Can secrets be known?” whereas the Athan G. Theoharis-edited collection reframes the issue as “Can secrets ever be known?”
For journalists, questions about the secrecy of information—How it is made secret? How long it is kept secret? And by whom?—are critical to the ability of reporters to tell the whole story to a public that more often than not has a right to know, if only after the fact.
Moynihan’s tightly argued book offers an historical overview of the evolution and costs of an unprecedented commitment to secrecy (dating only from World War I). International developments, and a companion internal security concern about subversion, he maintains, contributed to the over-classification of information, the rationalization of security procedures, and the creation of bureaucracies committed to secrecy. He then evaluates the adverse consequences of these practices: the precluding of independent critical evaluations of anachronistic or faulty assumptions, the unintentional promoting of popular belief in conspiracies, and the allowing of bureaucrats to withhold secret information from presidents and members of Congress even when such information could have ensured a more reasoned decision. The Cold War, Moynihan concludes, “bequeathed to us a vast security system that shows no sign of receding” but, he argues, “it is time to dismantle government secrecy…and to begin building the supports for the era of openness that is already upon us.” To achieve this, classification and declassification should be based on legislation—not on executive orders—and overseen by the creation of an independent National Declassification Center.
Moynihan’s assessment captures the frustration of most journalists covering national politics and intelligence issues. But it misses two other troubling aspects of the secrecy problem highlighted in the Theoharis collection: special records procedures to ensure the undiscoverable destruction of politically sensitive documents and the courts’s role in effectively neutralizing an opportunity for openness.
Dating from the 1940’s, FBI and CIA officials purposefully sought to make certain that their destruction of specified records could never be traced. FBI Director J. Edgar Hoover required the use of “Do Not File” memoranda for requests and authorization of “clearly illegal” break-ins, and “summary memoranda” for reporting derogatory information concerning “criminal or corrupt practices, subversive activities, and immoral conduct” of members of Congress. There were also “blue/pink” documents (called this because of the color paper these secret memos were written on), and then “informal” memoranda for communications about sensitive and administrative matters by senior FBI officials. These procedures guaranteed that the resultant records would not be indexed or filed in the FBI’s central records system. This allowed such records to be destroyed without leaving a trace.
In addition, Hoover maintained at least two secret office files and instructed his administrative assistant, Helen Gandy, to destroy one of them in the event of his death. She did. CIA officials similarly maintained in their offices records which were not to be incorporated within the Agency’s official records—“files of convenience or working files,” “privacy channel cables,” “shadow files,” “soft files.” In addition, dating (at least) from the 1960’s, even some official CIA files were purposefully destroyed—those pertaining to the Agency’s 1953 covert operation to overthrow the Mossadegh government in Iran, others relating to the Agency’s assassination planning and drug testing programs, and the tapes and transcripts of CIA Director Richard Helms’s telephone and office conversations.
These record destruction practices were uncovered only in the mid-1970’s when for the first time Congress investigated the authority and covert activities of the intelligence agencies. Congress’s interest was triggered by the Senate Watergate Committee’s revelations of how President Nixon had used secrecy to abuse power, as well as a concurrent controversy over the possible destruction of his Oval Office tapes. Shortly before resigning as President, Nixon made an agreement with the head of the General Services Administration under which he retained exclusive control over his presidential papers and the right to destroy the Oval Office tapes once the criminal prosecution of White House aides was concluded. Congress responded by enacting the Presidential Recording and Materials Preservation Act (PRMPA). This assigned control of Nixon’s presidential papers and the Oval Office tapes to the National Archives and mandated the early release of those tapes pertaining to the former President’s “abuses of power.” Congress also approved a series of amendments to the 1966 Freedom of Information Act (FOIA) to promote the release of the records of the intelligence agencies (FBI, CIA, and National Security Agency, NSA).
These legislative initiatives, however, did not achieve the intended goal of creating an “era of openness” nor did they “dismantle government secrecy.” Relying on the FOIA, journalists, activists and scholars requested specific FBI, CIA and NSA files. When processing these requests agency officials, by broadly interpreting the Act’s provisions regarding exemptions, either heavily redacted or withheld in entirety the requested files. At the same time, FBI officials drafted in 1975-1977, and the National Archives approved, plans to destroy all closed-field office files and a massive headquarters file on the Sex Deviates program, which sought to identify and then purge homosexuals from various jobs.
As the intelligence agencies claimed FOIA exemption, journalists and others filed lawsuits challenging these decisions. Former President Nixon went to court to challenge the legality and then the implementation of the PRMPA. In a series of crucial FOIA rulings, the courts ruled against those who challenged the system. One court rebuffed on “national security” grounds journalist Harrison Salisbury’s claim demanding the release of NSA records about him, including reports the NSA had disseminated to the FBI and CIA.
Salisbury’s FOIA suit was not a personal matter but is important for an understanding of the relationship between journalists and the intelligence community. Given Salisbury’s assignment as the first U.S. correspondent in Moscow, and then the controversy surrounding his reports from Hanoi challenging the Johnson administration’s claims of precision bombing, the question arises: Had the NSA intercepted Salisbury’s communications with Times’s editors in New York and disseminated this information to the FBI and CIA?
Another judge ruled that the National Security Council’s (NSC) electronic records of the Reagan Administration were not releasable under the FOIA. The decision held that the NSC was a presidential advisory body, not a federal agency, and thus presidents controlled the timing of release of such records subject to the Presidential Records Act of 1978.
Ironically, some of the requested NSC records had been created under a “do not log” procedure devised by NSC officials Oliver North and John Poindexter. Because these records were not logged in the NSC’s central records system, they could be safely destroyed, and were with the inception of the Iran-contra investigation. Only North’s failure to have also destroyed the memory safeguard of the NSC’s computer system permitted the reconstruction of some of these records. Poindexter, in contrast, was even more thorough.
In ruling on Nixon’s suits, the court upheld the constitutionality of the PRMPA but subsequently denied that the National Archives could retain any “personal” material in the Nixon papers and tapes. These would have to be returned to the Nixon estate. And the Nixon estate was entitled to financial compensation for the “taking” of his presidential papers.
To focus solely on over-classification misses a more disturbing aspect of our secrecy problem. That is what I call “the culture of secrecy” that underlies executive officials’ belief in their proprietary right and responsibility to determine whether information generated in the course of doing the public’s business should be disclosed and which of their agency’s records should be preserved. It is significant to note that under current classification restrictions, records which FBI and CIA officials had purposefully destroyed would not have been released in the immediate or foreseeable future. These officials’ objective was not to reduce the risk of harm to the national security should classified information be released. Instead, they intended to sanitize the record, to ensure that controversial and abusive practices could never be discovered and never reported in the press.
Congress remains unwilling to reverse the courts’ deference to executive secrecy claims by legislating different standards that would give greater weight to disclosure than to continuing secrecy. Such legislation was proposed by Senator Moynihan in 1997. Instead, in 1998, Congress suspended the automatic declassification requirements of President Clinton’s 1995 executive order governing records that are more than 25 years old. That suspension would require that the more than a billion pages of such records be reviewed page by page “to prevent the inadvertent release of records containing Restricted Data (RD) and Formerly Restricted Data (FRD).”
The course this debate over secrecy takes will go a long way toward determining whether journalists and others will gain the kind of access they should have to records of public decision-making. Right now, the public record is not being well served by the decisions of a few to shield many from “secrets” that all of us should know.
Athan Theoharis is a professor of history at Marquette University in Milwaukee, Wisconsin, who has focused on the FBI in his work. His books include “Spying on Americans” and “From the Secret Files of J. Edgar Hoover.”