Control of Information

CIA Openness Task Force

excerpted from the book

Secrets

The CIA's War at Home

by Angus Mackenzie

University of California Press, 1997, paper

p168
Control of Information

The government employees lawsuit against the secrecy contracts was heard in federal court in Washington, D.C. Judge Oliver Gasch, a conservative, presided. The plaintiffs, including several members of Congress as well as the federal employee unions, took the position that the executive branch was acting in defiance of a congressional ban on Form I89 and Form 4I93. The Reagan administration, in turn, held that the ban was an unconstitutional abridgment of the powers of the commander in chief, arguing on the grounds that the president has sovereign rights to control national security information.

Lawyers for the plaintiffs disputed those grounds. They noted that the Constitution recognizes the occasional need for legislative secrecy and permits Congress to meet in secrecy, but they pointed out that it fails in plain language to mention any secrecy power of the executive. There exists a general legal principle that says, in essence, if a law expressly grants powers to one but not to others, then the omission is presumed as intentional.

Judge Gasch ruled in favor of the Reagan administration, although he could find little constitutional basis for the theory of executive primacy. Indeed, Gasch acknowledged that "[n]either political branch is expressly charged by the Constitution with regulation, accumulation of, or access to, national security information." Nonetheless, relying on English common law, he found that Congress had unconstitutionally violated the president's "sovereign prerogative" to preserve secrets. To posit the existence of a "sovereign prerogative" in a republic such as the United States was strange. The basis of a republic, as distinguished from a monarchy, is that all citizens have equal status before the law, while the notion of sovereignty grants a superlative power to one individual. Nevertheless, Gasch decided that constitutionally the president's secrecy powers were contained, by inference, in his command of the armed forces. Gasch further ruled that the proper role of Congress was to be a supporter of executive secrecy, to "facilitate secrecy with appropriate criminal and civil sanctions."

Gasch did allow that perhaps there was a problem with the excessively broad term "classifiable" used in Form I89. But by the time of Gasch's decision, Steven Garfinkel had written a new definition of "classifiable" as "unmarked classified information . . . in the process of a classification determination." This revision seemed to satisfy Gasch.

Gasch's decision was appealed directly to the U.S. Supreme Court.

Meanwhile, Congress passed yet another ban on the spread of secrecy contracts as part of another appropriations bill. Reagan, placed in the same political box as before, signed the bill into law on September 23, I988, even while denouncing the ban. He charged that it "raises profound constitutional concerns" and "interferes with my ability to prevent unauthorized disclosures of our most sensitive diplomatic, military, and intelligence activities." The general impression was that the spread of censorship again had been outlawed. "People will get the impression . . . that it's ended, yes," Garfinkel observed. However, in his signing statement, Reagan ordered: "In accordance with my sworn obligation to preserve, protect and defend the Constitution, [the ban] will be considered of no force or effect unless and until the ruling of the district court is reversed by the Supreme Court."

Seven days later, Garfinkel replaced Standard Form I89 with Standard Form 3I2, from which he had removed the catchall term "classifiable." He sent the new form to more than fifty agency chiefs for circulation to employees. Fitzgerald waited on edge, expecting the worst. If the Supreme Court upheld the Gasch decision, Fitzgerald might be fired.

On November ,, I988, George Bush won the presidential election. As CIA director in I976, he had been a strong advocate of spreading secrecy agreements, and he became the first president-elect in history to require his transition team to sign secrecy contracts.

On April I8, I989, Chief Justice William H. Rehnquist delivered the Supreme Court's ruling on the Gasch decision. Gasch was ordered to reconsider the case. Rehnquist stated, "We emphasize that the District Court should not pronounce upon the relative constitutional authority of Congress and the Executive Branch unless it finds it imperative to do so." Rehnquist was sidestepping the issue, preferring to keep the courts out of a fight that might never be settled permanently.

In the fall of I989, Congress again legislated limits on the secrecy contracts with a rider to another appropriations measure. President Bush signed it on November 3, I989, but, as Reagan had done, he instructed his subordinates to ignore the law. Bush's signing statement, which received little notice, read:

I am compelled to note my strong objection to section 6I8, . . . which purports to forbid the implementation or enforcement of certain nondisclosure agreements required of government employees with access to classified information. This provision . . . raises profound constitutional concerns.... Article II of the Constitution confers responsibility on me as President and Commander in Chief to conduct the national defense and foreign affairs of the United States. In this capacity, I have the constitutional duty to ensure the secrecy of information whose disclosure would threaten our national security.... Furthermore, section 6I8 could suggest that I am prohibited from establishing and enforcing appropriate procedures to control the dissemination of classified information by executive branch employees to Members of Congress.

Here was the crux of the matter-the executive branch sought the control of information going to Congress.

"I believe," Bush continued, "that section 6I8, thus construed, would jeopardize the nation's security by unconstitutionally interfering with my ability to prevent the unauthorized disclosure of information concerning our most sensitive diplomatic, military, and intelligence activities." Thus he "direct[ed] that executive branch officials implement the provisions of section 6I8 in a manner consistent with the Constitution." In essence, Bush was ordering that the law be disobeyed.

"We're still in business," Garfinkel said. He kept pressuring agencies to distribute the new Form 3I2. With Bush as president, Garfinkel's Information Security Oversight Office headquarters was moved out of the sixth floor of the General Services building to a fancier address closer to the White House. According to Garfinkel, this move was intended to signal the increased importance of information security.

In his Pentagon office, meanwhile, Fitzgerald kept refusing to sign the new secrecy contract. No one, however, cared to press Fitzgerald any longer, for he had achieved celebrity status in Washington. During an interview Garfinkel threw up his hands at a question about Fitzgerald, as if to say, "I don't ever want to hear about Ernie Fitzgerald again, and I don't want to know if he does not sign a secrecy contract.

With Gasch's decision remanded back to his court, lawyers began trying to negotiate a settlement between Congress and the Bush administration over the secrecy oaths. From the point of view of the congressional lawyers, it was one thing for the executive to say to a civil servant, "You can't disclose to the public," but quite another to say, "You can't disclose to Congress." Bush's lawyers were also willing to make the same distinction. Garfinkel would amend the secrecy contracts to protect government employees who inform Congress. In January I99I, he added to Form 3I2 the sections from the Whistleblower Protection Act that protect those who disclose waste, fraud, and abuse to Congress.

The congressional right to know had been steadily eroded during the previous two decades, and, given a political climate in which the executive branch was still in the ascendancy, Congress was satisfied with this small victory. The compromise essentially ended congressional resistance to the secrecy contracts.

***

Congress has many arcane rules designed to control information, many in conflict with one another. Historically, Congress could and did release information, classified or not, as a branch of government equal to the executive. Up until I976, even the CIA recognized the power of Congress to declassify information, according to an internal Agency memorandum that has never been made public. The turning point came when the House Select Committee on Intelligence (usually referred to as the Pike Committee for its chairman, Congressman Otis Pike of New York) issued a report on the CIA so scathing that the House voted to seal it. In January I976, John D. Morrison Jr., the CIA deputy general counsel, analyzed the report and discovered to his delight a crucial assertion: "no one in Congress can declassify." To the CIA, this was news. In a memo, Morrison pointedly remarked, We shall cherish this latter statement against interest and use it as precedent, so do not say anything to make them [the committee] reconsider it." It is a particular irony that the Pike Committee, while it criticized the CIA and fought for access to CIA documents, inadvertently contributed to surrendering the congressional right to disclose secrets of the executive branch.

From that point on, Congress continued to lose control of executive information. The next setback was in the traditional right for each and every member of Congress to have complete and equal access to all information in the custody of any congressional committee. In practical terms, this meant when a member was concerned with, say, the overthrow of a government in Chile, the member could inspect the classified testimony of the CIA director delivered in executive session of the intelligence committee and engage in political debate, through correspondence with fellow members about it. However, on July I4, I977, when Stansfield Turner was CIA director, the House consolidated CIA oversight in the House Permanent Select Committee on Intelligence and set up a special House rule creating a five-day waiting period before classified information can be disclosed to the public. The rule gave the president time to indulge in arm twisting, thus preventing the vast majority of secrets from ever being released. Another rule restricted the sharing of such information with another member of Congress. By limiting debate among members of Congress, these rules amounted to an erosion of the basic autonomy of Congress in favor of executive power.

In I987 Congress imposed upon itself the requirement that the House and Senate, in consultation with the CIA director, "shall each establish, by rule or resolution, procedures to protect from unauthorized disclosure all classified information and all information relating to intelligence sources and methods furnished to the intelligence committees." Thus, Congress accepted the president's right to deter- ~ mine unilaterally what must be kept secret from the public.

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CIA Openness Task Force

On January I7, I99I, Senator Moynihan made a metaphorical point about the ending of the cold war by introducing a bill that would have abolished the CIA and transferred its functions to the Department of State. Before the collapse of the Soviet Union, only the former editor of CourlterSpy magazine had dared to suggest such an idea. Moynihan's bill, S. 236, also proposed that intelligence budgets be published. While the abolition of the CIA was not taken as a serious threat, the prospect that budgets might be drastically cut back struck terror into the heart of the bureaucracy. The leadership of the CIA was put on notice that they had to find new reasons to justify the Agency's rarefied governmental powers.

In May I99I, President Bush nominated Robert M. Gates to replace William Webster as CIA director. Gates had specialized in Soviet affairs as a career intelligence analyst. In September, during Gates's contentious confirmation hearings before the Senate Select Committee on Intelligence, Melvin A. Goodman appeared as a witness. Goodman, a former CIA division chief in Soviet foreign policy, testified that Gates had, over a period of years as deputy director of the CIA, given Congress and the president misleading and politicized intelligence. "Gates's role," he said, "was to corrupt the process and the ethics of intelligence . . . [and] to ignore and suppress signs of the Soviet strategic retreat." Other witnesses at the hearings accused Gates of having shaped intelligence reports during I986 in a manner that supported the U.S. sale of arms to Iran.

This damning testimony undercut Gates's chances of confirmation. Fighting to gain favor and to show that he understood the changing times, Gates pledged to the committee that if approved as director he would run a more open CIA. The committee was persuaded by his promise and voted in favor of his confirmation.

After Gates was sworn in, he sent a memorandum on November I8, I99I, to his director of public affairs, Joseph DeTrani, setting up the CIA Openness Task Force. Its purpose was to continue "improving accessibility to information about [the] CIA by the public and overall openness to the extent possible" (the operative words being "to the extent possible"). DeTrani was ordered to explore how the CIA could improve "openness" and "accessibility" through use of the news media and by expanding relations with universities. A report was due in a month.

DeTrani's task force came up with twenty-one recommendations to counter the growing impression that the CIA and secrecy itself had become anachronisms. The principal recommendation called for a public relations campaign directed at members of the general public. Rather than take any substantive steps toward reform, the idea was to do a better job of selling the mystique of the CIA. "There was substantial agreement," the report said, "that we need to make the institution and the process more visible and understandable rather than strive for openness on specific substantive issues."

For Gates, the point was to use the so-called openness public relations campaign to answer critics who wanted big reductions in the congressional intelligence community appropriation (estimated to be about $30 billion annually). For DeTrani, the point was the same, except on a smaller scale. He was facing a cut of 33 percent in the CIA public affairs office. In his report DeTrani stressed, "We recognize that a program of increased openness will require commitment of additional resources, not only for [the public affairs office] but for other parts of the Agency." Gates and DeTrani proved the Washington cliché: the first concern of a bureaucrat is to preserve his budget.

DeTrani recommended that the CIA engage in a broad program to influence U.S. academia, forgetting the scandal over the CIA use of the National Student Association in the I960s. The CIA Editorial Board had identified hundreds of CIA-authored articles, and DeTrani suggested that scholars connected with journals and editors at university presses could be pushed to publish them. In addition, he noted that the Agency had a wide range of contacts with academics through recruiting, professional societies, and contractual arrangements, which he thought could be expanded. The CIA, he proposed, could become an institutional member of scientific and professional societies and could sponsor more academic conferences and seminars, even bringing scholars to study at Langley. Furthermore, DeTrani wished to expand the CIA officer-in-residence program, which currently had thirteen CIA officers at universities, each provided with about $100,000 This entire recommendation, of course, flew in the face of the lessons supposedly learned after the Pike Committee severely criticized the CIA in the I970s for trying to manipulate public opinion through academia.

The Pike Committee also had rebuked the Agency for manipulating the U.S. media. News organizations, domestic and international, had been scandalized to discover that the CIA employed more than four hundred journalists as spies. Now DeTrani was recommending "a strategy for expanding our work with the media as a means of reaching an even broader audience." It was a suggestion remarkable in its brazenness-and clever as well. DeTrani wanted the CIA to declassify certain files about historical events in order to put the Agency in a more positive light. By assisting journalists, "intelligence failure" stories could be turned into "intelligence success" stories, he argued, and he boasted about past triumphs with the news media: "In many instances, we have persuaded reporters to postpone, change, hold, or even scrap stories that could have adversely affected national security interests or jeopardized sources and methods."

DeTrani also wanted to work with filmmakers on "accuracy" and "authenticity" and to help friendly Hollywood directors by allowing them to shoot movies at CIA headquarters. Along the same lines he wanted to cooperate with feature writers to "personalize the world of intelligence in broad circulation newspapers or magazines." Other propaganda could be aimed directly at the public. Unclassified versions of the Agency's Studies in Intelligence could be sold, and CIA officers could step up their number of speeches to civic and service dubs, mainly Rotary and Kiwanis. A CIA speakers bureau already had been established in I990.

In addition, DeTrani had a full set of recommendations for working more closely with new members of Congress, as well as staffers on Capitol Hill and at congressional agencies, such as the Congressional Research Service and the Office of Technological Assessment. Basically, the plan was to take them into the Agency's confidence in attempts to convince them of the CIA's worth, a rather cynical process of co-optation in which spies befriend and manipulate their targets. This technique is a specialty of espionage agents. For the average outsider, being taken into the CIA's confidence can be breathtaking.

The public release of the Openness Task Force report was scheduled for April Fool's Day I992-with the last four inches of DeTrani's report to be blacked out. But the report was made public after its secrecy had become an embarrassment to the CIA. A New York Times reporter, Elaine Sciolino, revealed its existence on January I2, I992. During the following week, DeTrani called it an "internal advisory document that [could not] go outside the Agency," classified secret. On January I4, DeTrani said he would keep the Openness Task Force report secret until Gates issued his orders based upon it. However, Director Gates had already dispatched those orders for the domestic propaganda operation ten days earlier, on January 6, to his deputy directors: they covered five pages.

Gates accepted DeTrani's primary recommendation-the CIA should improve and update its image without changing its fundamental character. Gates stated, "I believe that CIA, whatever the level of its public affairs effort, will find it difficult to win recognition as an 'open' institution." In other words, the Agency should give out information that makes it look good and, as usual, keep the rest secret. While ordering new cooperation with the news media, Gates cautioned that the CIA would not be pressured into changing its approach to secrets. The only incentive for cooperating with journalists, Gates said, was to enhance "the broader Agency programs."

Gates wanted the CIA to conduct carefully controlled background briefings of selected reporters who could be relied upon to deliver the CIA message without the public being able to discern precisely the source. Gates also took up DeTrani on his suggestion to persuade friendly journalists to write profiles of CIA officers, although he insisted that meticulous records be kept of such contacts. Such records would, of course, assist the Agency's Unauthorized Disclosures Analysis Center agents in combating news leaks. Gates refused DeTrani permission to appear more often on television but instead assigned extra television time for himself He was to be the CIA's premier salesman, and everyone else was to fall in behind him. "All of us in the Agency simply should keep our eyes and ears open for feedback, from whatever quarter, on the success of our efforts," Gates directed.

In addition to media operations, Gates approved direct CIA propagandizing of the general population through the circulation of press releases detailing the Agency's history, mission, and functions in light of the new world order. "The Agency's briefing program for the full range of potential audiences should be expanded as opportunities arise," Gates ordered. He approved CIA officers joining scientific and professional societies and urged that operations on American college campuses be expanded by setting up intelligence studies programs and finding universities to publish CIA material. Scholars would also be encouraged to publish CIA-subsidized articles in the United States. Gates also established a program to bring chief executive officers of corporations to Langley for a day, beginning with CEOs already cooperating with the Agency. Under a similar program, members of the media with influential voices-including even Norman Mailer-were to be invited to speak with CIA groups.

Regarding the release of documents, Gates ordered a review of historical and FOIA records, "with a view to accelerating the process [of release]." However, Gates's orders made it plain that CIA "openness" did not mean the lessening of secrecy. "Openness" meant adopting a well-crafted public relations scheme aimed at the most important opinion makers in the nation.

Gates's assessment that the CIA had a public relations problem was proved later in January. The news commentator with the largest audience in the United States, 60 Minutes sage Andy Rooney, blasted the CIA in his syndicated newspaper column printed January 26, I992. It was headlined by the San Francisco Sunday newspaper "A Lack of Intelligence: Fire the Spies." Rooney wrote, "If they cut the $30 billion [sic] Central Intelligence Agency budget tomorrow by 75 percent, it wouldn't be a month too soon." He said, "When the CIA is questioned about anything, they have a standard answer: 'That's a secret that would compromise the security of the United States."

Secrets - The CIA's War at Home

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