Showing posts with label FOIA. Show all posts
Showing posts with label FOIA. Show all posts

Wednesday, January 17, 2007

How to Bury a Secret: Turn It Into Paperwork

Millions of Pages Are Declassified, but That Doesn't Necessarily Mean Divulged

By Lynne Duke
Washington Post Staff Writer
Tuesday, January 16, 2007; C01

At the stroke of midnight on Dec. 31, something profound happened in the government secrecy system. With little fanfare, the paradigm of secrecy shifted.

The days when secrets would be secret forever officially ended that night. Some 700 million pages of secret documents became unsecret. No longer were they classified. They became . . . public. Imagine it: Some 400 million formerly classified pages at the National Archives, another 270 million at the FBI, 30 million elsewhere, all emerging into the sunshine of open government, squinting and pale, like naked mole rats.

This would seem a victory for freedom of information, just as President Bill Clinton envisioned when he signed Executive Order 12958 in 1995 (affirmed by President Bush in 2003), which mandated that 25-year-old documents be automatically declassified unless exempted for national security or other reasons.

But it is not so simple. There is a dirty little secret about these secrets: They remain secreted away. You still can't rush down to the National Archives to check them out. In fact, it could be years before these public documents can be viewed by the public.

Fifty archivists can process 40 million pages in a year, but now they are facing 400 million. The backlog, inside the National Archives II facility in College Park, measures 160,000 cubic feet inside a massive classified vault with special lighting and climate controls to preserve old paper. Row upon row of electronically operated steel shelves, all a pale gray, hold hundreds of thousands of document boxes buffered to fight destructive acidity. The place feels like the set of a science fiction movie, all pristine and orderly and hushed.

Inside the boxes are documents that have to be scrutinized and processed according to the classification instructions written on them by staffers in any one of several agencies, which leaves archivists with a task not unlike deciphering a 25-year-old crime scene.

"It's like 'CSI,' only it's in records," says Neil Carmichael, the supervisory archivist. "You never know what you're going to get."

The work, says Jeanne Schauble, is "esoteric," all about arcane rules and layers of document review. She holds the rather Orwellian title of director of the Initial Processing and Declassification Division at the National Archives, which means she leads the beleaguered team of archivists faced with the task of making open government real.

"The United States has the most open government in the world," says Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, "but it also has the most secretive government in the world, if you measure it by the production of new secrets."

And so, among the 400 million pages of documents awaiting their release are road maps to American history in the 1950s and 1960s: old mob investigations and the chase after Communist activists; kidnappings and bank robberies; diplomatic doings no longer deemed sensitive. But frankly, no one really knows what's there -- except the officials who originally classified them.

Not only are archivists overwhelmed by the number of documents that have arrived at the facility; they also face the strange mumbo jumbo of competing declassification instructions from various agencies. (Some agencies have given archivists with the appropriate security clearances the authority to make declassification decisions.)

When they open a box containing these old records, the archivists see a series of papers with white tabs affixed bearing numbers, dates, letters, slashes and circles that are supposed to tell them how to proceed. Each agency has a different dialect, a different set of codes for communicating its wishes to the National Archives. One agency might use an "R" to mean release, while another agency might use an "R" to mean retain.

"Each time we crack a new record group, we have to wait for that learning curve," says Meredith Wagner, an archive specialist.

Discovering the precise intent of these codes takes up time with perhaps annoying phone calls to the agencies. "But they are more annoyed if we release something they didn't intend for us to release," says Schauble.

Another minefield is the "equity" issue, which involves more than one agency having an interest in a document and its classified information. For example, if the State Department has used CIA information in its document, then both agencies have to review it for declassification. That means a document has to be pulled from boxes repeatedly -- not a good idea with delicate old paper, often of the onionskin variety.

To solve this problem, a National Declassification Initiative has been established so that agencies can sort out their equity issues together, around the same table, at the same time, and perhaps prevent embarrassments such as occurred last year when previously public information was reclassified. This new project is in its early stages.

Finally, the archivists spend their days poring over these papers, straining their eyes, kinking their necks and knowing that a lot of those classified documents never needed to be classified in the first place. In the secrecy system, over-classification is rampant. On that point, people in and out of government agree. The 9/11 Commission Report decried the level of government secrecy as a national security obstacle. A Defense Department official testified before Congress in August 2004 that perhaps 50 percent of classified documents did not need that designation.

Leaks and unauthorized disclosure of classified information are bad, "but the flip side is equally damaging, and that is the over-classification of information," says J. William Leonard, director of the Information Security Oversight Office, which reports to both the National Archives as well as the White House.

To manage all this secrecy -- to store it, secure it, process it -- costs the country $7.7 billion in 2005, Leonard says.

Says Aftergood: "We are reaping the consequences of past neglect. For decades, the agencies have been allowed to run roughshod. They've been allowed to classify at will and to completely neglect the declassification side of the equation."

Old secrets also can provide context for new crises. For example, U.S. dealings with Saddam Hussein in the 1980s are still coming to light.

"It's our history, and in many cases, it's our present," Aftergood says.

With a proverbial sword hanging over their heads, agencies (excepting those associated with national security) were forced to change their secrecy culture when Clinton signed his executive order. They had to review their documents and argue for their continued classification, or see them all automatically made public. Some 400 million were declassified even before the Dec. 31, 2006, deadline. Add that backlog to the most recent 700 million declassified pages, and the mountain of paper surpasses a billion pages. But it wasn't as if these documents spilled out of a vault or were shoved out the front door of the FBI.

"You can't come down Pennsylvania Avenue and find them on the sidewalk," joked David M. Hardy, chief of the FBI's record/information dissemination section.

The FBI's declassified records are in its own repositories. Many other declassified agency records, including those of the State and Treasury departments, the Joint Chiefs of Staff and the Federal Aviation Administration, are at Archives II in College Park.

Aftergood says he is expecting some surprises of an unknown nature, not based on anything he knows but on what he doesn't know. That, he says, is the value of declassification: offering up the unexpected.

"Without having a clue as to what they are," he said, "I'm confident they're in there."

Friday, December 8, 2006

Journalist sues Bush adminstration - wins!

Court orders expedited review of journalist's FOIA request

  • Agencies have 30 days to respond to New York Sun reporter Joshua Gerstein's request for information on government response to recent classified information leaks.

Dec. 7, 2006 · A newspaper journalist representing himself has convinced a federal court in San Francisco to order government agencies to speed up their search for records related to government investigations into unauthorized disclosures of classified information.

The order is a victory for Joshua Gerstein, a reporter for The New York Sun who is seeking the information under the Freedom of Information Act.

According to the Nov. 29 court order, the agencies have 30 days to either turn over records responsive to Gerstein's request or to justify their continued withholding based on one of the nine exemptions to FOIA.

Judge Maxine M. Chesney, quoting higher court cases, said the public interest is advanced by requiring a quick response to Gerstein because "a core purpose of FOIA is to allow the public to be informed about 'what their government is up to,' and 'official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose.'"

Gerstein, as part of his reporting on the government's handling of classified information leaks, made FOIA requests in March to various agencies, including the FBI, CIA, National Security Agency and Department of Defense. Public awareness of classified programs such as the government's warrantless wiretapping program and bank information monitoring practices were the result of leaks, Gerstein argued in court documents. Given the heated debate surrounding these issues at the time, Gerstein asked that his requests be expedited.

The FBI, Defense Department and two other agencies granted Gerstein's call to expedite in their initial responses acknowledging his request. But the CIA and the NSA declined to speed up the process.

While the agencies initially differed in how they stated they would deal with Gerstein, their positions quickly coalesced around a common course of action: ignoring him. By July 31, Gerstein had received no documents and no explanation as to why the records might be exempt. Federal law requires agencies to either disclose materials or explain why they are declining to release them within 20 days of a request.

Gerstein said he expects the agencies will claim various exemptions as the basis for continuing to withhold the material and that the court fight is likely to continue.

"I'm still optimistic, but by no means do I think I have won this yet," Gerstein said.

In court filings seeking to have the CIA and NSA's denials of priority review overturned, Gerstein argued there was "widespread and exceptional" public interest in learning of the government's efforts to deal with leaks. As evidence of this importance, Gerstein used the government's own words against it, pointing to statements of high-level government officials, including former CIA Director Porter Goss, who argued in a New York Times Op-Ed piece that excessive leaking was a crisis, and Vice President Dick Cheney, who said leaks harmed relationships with other governments.

Chesney agreed that this public interest would be harmed by further agency delay in responding to Gerstein.

"A delay in processing Gerstein's FOIA request, as he contends, 'could preclude any meaningful contribution to the ongoing public debate and render any disclosure little more than a historical footnote,'" Chesney wrote.

This is the third FOIA case Gerstein has pursued in court while acting as his own attorney.

(Gerstein v. Central Intelligence Agency, Media Counsel: Joshua A. Gerstein, pro se) -- NW