Statement Submitted by ACLU Legislative Counsel Timothy H. Edgar at a Hearing before House Government Reform Subcommittee on National Security, Emerging Threats and International Relations on Overclassification

"Too Many Secrets: Overclassification as a Barrier to Critical Information Sharing"

Chairman Shays, Ranking Member Kucinic and Members of the Subcommittee:

I am pleased to submit this statement for the record on behalf of the American Civil Liberties Union and its more than 400,000 members, dedicated to preserving the principles of the Constitution and Bill of Rights, to explain the ACLU's views on the recommendations for reform of the intelligence community proposed in the Final Report of the National Commission on Terrorist Attacks Upon the United States (""9/11 Commission Report"") to address the critical issue of overclassification and excessive government secrecy.[1]

The failure to ""connect the dots"" to prevent the terrorist attacks of 9/11 must rank among the worst intelligence failures in American history.  No one doubts the necessity of reorienting an intelligence community built to fight the Cold War to focus on the national security threats of the 21st Century.  The ACLU strongly favors reforming the intelligence community in a way that enhances national security, encourages openness, and protects civil liberties.

As the 9/11 Commission observes, structural reform of the intelligence community will not by itself solve basic intelligence deficiencies that contributed to recent intelligence failures.  Substantive reforms - including a reduction in excessive secrecy, an increase in real public and Congressional oversight, and stronger efforts to incorporate dissenting views into analysis - must be adopted to prevent future intelligence breakdowns.

The investigations into pre 9/11 intelligence failures, and the failure to find WMD in Iraq, have shown that poor analysis and information sharing, not a lack of collection that resulted from excessive judicial review or other civil liberties protections, was at the heart of recent intelligence failures.  Moving around boxes on the organizational chart will not solve intelligence problems without a major effort to improve oversight and accountability.

Overclassification as a Barrier to Information Sharing

Recommendation:  A presumption against classification without good reason was contained in Executive Order 12958 but has been rescinded.  As a first step in reforming an outmoded system of secrecy designed for the Cold War, the presumption should be reinstated.

As the 9/11 Commission report recognized, excessive classification - not civil liberties protections - almost certainly represents the greatest barrier to effective information sharing.  As the report states, too often the attitude has been that ""[n]o one has to pay the long-term costs of over-classifying information, though these costs . . . are substantial.""  The report laments an outdated, Cold War-era ""need to know"" paradigm that presumes it is possible to know, in advance, who requires access to critical information.  Instead, it recommends a ""'need-to-share' culture of integration.""

The 9/11 Commission joins its predecessor, the Congressional Joint 9/11 Inquiry, in recognizing serious costs to national security of an obsession with official secrecy.  This is a welcome shift, because prior to September 11, oversight of excessive classification was largely regarded as an issue of interest for civil libertarians, historians and archivists. As the 9/11 Commission points out, the CIA's overly aggressive hoarding of information was a contributing factor to the intelligence failures that lead to September 11.  The Commission's criticism of excessive secrecy is certainly on the mark.

 ""Groupthink"" led to some in the government discounting the possibility that Al Qaeda terrorism was directed at the United States, rather than overseas. According to the Senate Select Committee on Intelligence, groupthink was also the major culprit behind the intelligence failures regarding Iraq's WMD programs.  Groupthink cannot be challenged in secret.  Public pressure - including the media and public interest groups - can challenge government agencies to reassess their assumptions.

Unfortunately, the Bush Administration has moved in the opposite direction - towards greater secrecy.  President Bush's Executive Order on classification, issued after September 11, not only extended a deadline for automatic declassification of old documents, it actually reversed a presumption against classification without good reason that was put into place by President Clinton in 1995 as a signal to agencies that their classification decisions should have stronger justification.[2]  

""Need to Share"" Must Include the Public's ""Need to Know""

Recommendation:  The Freedom of Information Act should be amended to require courts to balance the public's need to have access to information that is critical for oversight of government - such as serious security flaws, or civil liberties abuses such as the mistreatment of detainees - against government claims that the information is exempt from disclosure.

 ""Need-to-share"" cannot be limited to agencies within the government or defense and homeland security contractors, but also must include, to the greatest extent possible, sharing relevant information with the public.  Congress and the Administration have created, through the Homeland Security Act, an entirely new category of information that is withheld from public view - sensitive but unclassified (SBU) information.  While the 9/11 Commission criticizes excessive secrecy, it also endorses establishing a ""trusted information network"" for sharing of unclassified, but still nonpublic, homeland security information.  

The Commission's calls for greater openness and sharing of information will not be effective if it succeeds only in adding another set of complex secrecy rules designed to limit public access to ""homeland security information"" on top of the existing classification regime. New categories of secret information - including ""sensitive but unclassified,"" homeland security information, or information in a new ""trusted information network"" - may succeed only in replacing one unwieldy secrecy regime with another.  

Government and industry have succeeded in adding exemption after exemption to the Freedom of Information Act and its state counterparts, often on the basis of dubious claims that keeping security flaws secret will aid homeland security.  In fact, keeping these flaws secret has often had the opposite effect, by shielding government and industry from the public pressure that would prompt action to fix security flaws.

The need for government and industry to keep critical infrastructure information from the public must be balanced against the public interest in access to critical oversight information.  Oversight is rarely successful if it is not accompanied by substantial public pressure for action.  Early and active oversight can also correct civil liberties abuses, such as mistreatment of detainees, before they grow into major scandals that damage America's credibility in the world.

Need for Information on Domestic Surveillance Under the USA PATRIOT Act and Similar Laws

Recommendation:  Congress should enact H.R. 2429, the Surveillance Oversight and Disclosure Act, sponsored by Rep. Hoeffel (D-PA), or its Senate counterpart, S. 436, the Domestic Surveillance Oversight Act, as a first step towards making more information about the use of FISA available to the public.

The Commission calls for a debate on the USA PATRIOT Act, putting the burden on the government to show why a given power is needed.  However, the government still takes the position that its use of surveillance authorities under the Foreign Intelligence Surveillance Act (FISA) is classified, and that the public's right to know only extends to the total number of surveillance applications made and the total number of orders granted.

There can be no meaningful debate on the government's use of the USA PATRIOT Act, which expanded FISA surveillance powers, without any publicly-available objective data on such basic matters as how many surveillance orders are directed at United States persons, how many orders are for electronic surveillance, how many are for secret searches of personal records, and so on.

Rep. Hoeffel has introduced legislation (H.R. 2429) that would provide more public information about the use of FISA, and Senators Leahy, Specter and Grassley have introduced a similar measure (S.436).

Bipartisan Classification Review Panel to Provide Neutral Judge on Classification Disputes

Recommendation:  Congress should enact H.R. 4855, sponsored by Rep. Bud Cramer (D-AL), which establishes a bipartisan classification review board, or its Senate counterpart, S. 2672, the Lott-Wyden bill.  Congress should consider enhancing the board's power to release improperly classified documents.  The Senate Select Committee on Intelligence should also make clear it will wield its existing power under the Senate rules as an effective check against intransigence by the President in releasing classified information that the board recommends to be released.

The Congress should enact H.R. 4855, sponsored by Rep. Bud Cramer, the ""Independent National Security Classification Board Act of 2004.""  An identical bill, S. 2672, has been introduced in the Senate by Senators Trent Lott (R-MS) and Ron Wyden (D-WA).

The bill would create a bipartisan board, appointed by the President and members of Congress, to review and reform classification rules.  The board should consider whether a complex system of government secrets that has grown to include layers upon layers of bureaucratic rules is the best way to safeguard the national security, and recommend real reforms.

The board would also have the power to recommend declassification of documents over an agency's objection, either on its own initiative or when requested to do so by an inspector general or by certain members of Congress.  The board would be a neutral arbiter that could resolve disagreements between the executive and legislative branches.  For example, the board could have considered whether information about the involvement of prominent Saudis in the funding of the September 11 attacks should have been deleted from the public version of the final report of the Joint Inquiry of the House and Senate Intelligence Committees into the September 11 attacks.  

Under the legislation, the President would retain the final authority to decide whether to release such information, effectively wielding a veto over the bipartisan board.  Congress should consider giving the board greater authority.  In addition, the Senate Select Committee on Intelligence should consider using its power, under the Senate rules, to ask the Senate for a vote to force the release of classified information.  This power, which has never been used, could be an effective check if the President does not take seriously the recommendations of the bipartisan board.

More Open Hearings on Intelligence Matters

Recommendation:  The intelligence committees should hold far more open hearings.  The annual hearings on legislation authorizing the intelligence community - as well as other legislative hearings - should be open to the public.

The 9/11 Commission called for Congressional oversight to be greatly improved, calling the current structure ""dysfunctional.""  As the Commission made clear, the establishment of a Senate and House committee devoted to intelligence matters does not provide effective oversight when hearings - even hearings on legislative matters - are almost always closed to the public.  Committee staff are often drawn from the intelligence community.  Members of Congress face competing demands for their time and attention and strengthening oversight is as essential as the restructuring itself.  

Make Intelligence Budget Public

Recommendation:  The intelligence budget should be made public as the Commission recommends.  

Perhaps the most inexplicable example of excessive secrecy that frustrates real accountability is the continued insistence by the intelligence community on keeping basic information - even information that is widely known or guessed - classified.  Even the overall amount of money budgeted for intelligence activities, which is widely reported as being approximately $40 billion, is classified as is the amount of money budgeted for components of the intelligence community.  At least these numbers, and other information that would help the public know how its dollars are being spent, should be made available.

As a general rule of responsible governing, taxpayers have a right to know what their tax dollars support. The Constitution provides that ""No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures shall be published from time to time."" One way to promote accountability, and to help properly define the role of the intelligence agencies through public debate, is to let the public know what surveillance and other programs cost. 

Protect Dissenting Views and Whistleblowers 

Recommendation:  Congress should enact H.R. 3281, the Platts bill, or its Senate counterpart, S. 2628, the Akaka-Grassley bill, providing special protections for national security whistleblowers.

Finally, a thorough and comprehensive review of the treatment of national security whistleblowers must be part of any reform of the intelligence community.  The role of whistleblowers in assisting our understanding of pre 9/11 intelligence failures has been essential.  For example, Colleen Rowley, an FBI counsel in the Minneapolis field office, focused national attention on FBI mistakes in the handling of the investigation of Zacarias Moussaoui and questioned the effectiveness of the FBI's roundup of hundreds of Middle Eastern men on immigration violations after the September 11 attacks.

National security whistleblowers face unique obstacles.  Many intelligence and national security jobs are exempt from the civil service protections, including whistleblower protections, enjoyed by most government employees.  National security whistleblowers also face additional hurdles, such as the loss of a security clearance or possible criminal charges for allegedly disclosing classified information, that are not faced by most government whistleblowers.  

The 9/11 Commission's calls for reform of the intelligence community that would challenge conventional wisdom should include specific procedures that would encourage whistleblowers.  Additional safeguards, consistent with national security, must be enacted to encourage employees who see distorted and sloppy analysis or other serious shortcomings to come forward without fear of losing their jobs, security clearances, or going to prison.  

S. 2628, the ""Federal Employee Protection of Disclosures Act,"" sponsored by Senators Akaka (D-HI), Grassley (R-IA), Collins (R-ME) and other Republican and Democratic Senators, would provide important protections for national security whistleblowers.  A similar bill, H.R. 3281, the ""Whistleblower Protection Enhancement Act,"" has been introduced by Rep. Todd Platts (R-PA) and has attracted an impressive bipartisan list of co-sponsors, including Rep. Ray LaHood (R-IL), Frank Wolf (R-VA), Henry Waxman (D-CA) and Dennis Kucinich (D-OH).

Government reform groups that have represented national security whistleblowers, such as the Government Accountability Project, strongly support S. 2628 and H.R. 3281.  The legislation would strengthen existing whistleblower protection law by making the revocation of a security clearance in retaliation for whistleblowing a ""prohibited personnel practice"" and by forbidding the president from using the power to exempt an agency from whistleblower protection laws retroactively to strip whistleblowers of their protections.  S. 2628 and H.R. 3281 also strengthen whistleblower protection law generally.

Conclusion

None of the structural proposals for reform of the intelligence community are likely to improve intelligence analysis without fundamental substantive reforms.  Greater openness, real accountability to both Congress and the public, and protection of whistleblowers is vitally necessary to challenge old assumptions and ensure better analysis and performance.  These goals would also help to lessen the risk that a reformed, restructured and bolder intelligence community, perhaps empowered under a new NID, does not return to the ""bad old days"" and threaten fundamental liberties.

The challenge to our intelligence community is the same as the challenge for the nation as a whole.  Securing the nation's freedom depends not on making a choice between security and liberty, but in designing and implementing policies that allow the American people to be both safe and free.

 

APPENDIX

9/11 Commission Recommendations on Intelligence Reform Summary of ACLU Recommendations for Greater Openness

1. Restore presumption against classification for no good reason in prior Executive Order;
2. Amend Freedom of Information Act to provide that exemptions for new categories of unclassified, but nonpublic, information must be balanced against public interest in disclosure;
3. Enact legislation (e.g., S. 436/H.R. 2429) increasing public reporting on use of Foreign Intelligence Surveillance Act (FISA) that governs FBI national security wiretaps, secret searches, and records demands within United States;
4. Enact Lott-Wyden bill (S. 2672/H.R. 4855) establishing bipartisan classification review board, and make clear Senate is prepared to release information on board's recommendation if President is intransigent;
5. Intelligence committees must hold more open hearings, and open all legislative hearings;
6. Make intelligence budget public;
7. Enact legislation (e.g., S. 2628/H.R. 3281) to provide specific protections for national security whistleblowers.