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as proprietary. Barring that, it would have to be classified to withhold it under present law.
Mr. HARMON. It would have to be classifiable under that provision and not under the military secret provision.
Senator ABOUREZK. We want to express our thanks for your appearance and your testimony.
[The prepared statement of Mr. Harmon follows:]
PREPARED STATEMENT OF John M, HARMON Mr. Chairman and members of the subcommittee, I am pleased to appear before this subcommittee to discuss the Department of Justice's experience with exemption 1 of the Freedom of Information Act, the exemption for classified national defense and foreign policy records, under the 1974 amendments to the act. First I will briefly review the background of the 1974 amendments and then I will offer my appraisal of our experience with exemption 1 as amended.
Exemption 1 of the original Freedom of Information Act was intended to reflect the historic privilege, recognized in all countries, for so-called "state secrets" of a military or diplomatic nature. As enacted in 1966, exemption 1 simply applied to "matters that are-(1) specifically required by Executive order to be kept secret in the interest of the national defense of foreign policy." At that time Executive Order No. 10501 governed the classification of defense information. After the 1971 Supreme Court decision in the Pentagon Papers case had drawn attention to the problem of excessive classification, Executive Order 10501 was replaced in 1972 by Executive Order 11652. As you are aware, the administration is currently in the process of rewriting that Executive order in an effort to further tighten the classification process.
Exemption 1 was interpreted in the first freedom of information case to reach the Supreme Court, EPA v. Mink, 410 U.S. 73 (1973). The Court upheld the Government's right under exemption 1 to withhold classified records prepared to advise the President whether to go ahead with underground nuclear tests for weapons development purposes in the Aleutian Islands. However, in deciding the case, the Court interpreted exemption 1 as applying automatically whenever the Government marked a record with one of the three classifications authorized by the Executive order: Top Secret, Secret, or Confidential. In an oft-quoted concurring opinion, Justice Stewart pointed out that exemption 1 provided no means to question an Executive decision to stamp a document Secret "however cynical, myopic, or even corrupt that decision might have been." (410 U.S. at 95).
In 1973 and 1974 Congress considered amendments to the act in the light of widespread complaints of bureaucratic foot-dragging and growing public concern over excessive government secrecy. While most of the amendments were procedural, Senator Muskie introduced a floor amendment which rewrote exemption 1 in its present form. The amendment reflected widespread recogni. tion of excessive classification, plus the reaction to the Watergate era abuses of the Executive's national security powers. Passed by the Senate and accepted by the conferees in order to overturn the "automatic" interpretation of exemption 1 in the Mink decision, the Muskie amendment in effect provided two new tests for judicial review of a denial of access under exemption 1, one sul stantive and the other procedural: (a) Whether the record withheld meets the "criteria" or standards of the Executive order for the classification of information that must be withheld to prevent injury to national security, and (h) whether the record was in fact properly classified in accordance with the pro
1 See p. 433 of the appendix,
? Actually, the Justice Department was prepared to concede a somewhat less sweeping interpretation of the exemption. I am informed that Roger Cramton, one of my predecessors as head of OLC and now Dean of Cornell Law School, was prepared to tell the Court ir questioned at oral argument that exemption 1 in the government's view would not protert a classification that was patently arbitrary and capricious, but the point was never made.
3 Exemption 1 as amender now applies to matters that are **(1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order:
cedural requirements of the Executive order. In addition, several of the other amendments that apply to all agency records have a special effect on the status of classified records under the act. Thus, the express authorization for in camera judicial inspection of any withheld records, 5 U.S.C. 552(a) (4) (B), overturned the link ruling against such inspection in the case of a classified record. And the amendment at the end of subsection (b) for releasing any "reasonably segregable" nonexempt portions of a record that contains some exempt matter, while generally restating the earlier views of the courts and of this Department, assures closer scrutiny of documents and greater respect for the practice of releasing parts of a document than had generally been the case in the national security area.
During the three months between the enactment and the effective date of the 1974 amendments, the Office of Legal Counsel prepared the Attorney General's “Blue Book” interpreting the amendments for the guidance of the agencies. It was issued after consultation with various responsible officials, including the staffs of the Senate and House subcommittees which had handled the legislation. The Blue Book's discussion of the revised exemption 1 stresses that an agency, in processing a freedom of information request or an administrative appeal for a classified record, must always review the record for possible declassification, even if the record had been created and classified very recently." The Blue Book also recognized the special controlling role of the agency which originally classified the document. The Blue Book advises that if an agency holding a copy of a document classified by another agency receives a request for that document, the request should be referred to the classifying agency for determination. Finally, the Blue Book quotes the Conference Report and other significant materials as indicating that Congress did not intend the authority for in camera inspection by a court to be used automatically, that Congress expected the courts to give substantial weight to affidavits reflecting the special insights of the executive departments "responsible for national defense and foreign policy matters," and that the construction and application of exemption 1 should be undertaken with due regard for constitutional responsibilities.
I am glad to report that, at least for the most part, both the agencies and the courts seem to be showing commendable care in approaching their respective exemption 1 responsibilities as revised by Congress in 1974. I cannot, of course, speak for other agencies, but I can report my impression that more information is being made available and that the amended act, despite other problems connected with it, has not compromised national security.
Exemption 1 has not been heavily litigated when compared to other exemptions under the act. According to the July 1977 edition of the FOI Case List, there have been 445 court cases decided with one or more opinions since the original act was passed, and in only 30 of these did the decision in some way relate to exemption 1. Only one of them was decided by the Supreme Court (the Mink case) and only six involved Court of Appeals decisions, and of these some predated the 1974 amendments. Three recent Court of Appeals decisions warrant special mention. The three Court of Appeals decisions, all in the D.C. Circuit and all decided within the past 12 months, are the Phillippi case, the Weissman case, and the Halperin case. The Phillippi decision indicates that in those rare situations where sensitive information that the exemption was intended to protect would be compromised not only by granting access to a requested record but even by revealing whether or not such a record exists, the agency will be allowed to prove, if it can, that under the act it need not disclose whether the requested record exists. In the Weissman case, the court set forth some general guidelines to be used by lower courts in determining whether to conduct in camera inspections in exemption 1 cases. These guidelines indicate that in camera inspection should be less frequent in exemption 1 cases than in other freedom of information cases, and should not ordinarily be engaged in if the court can fairly decide the case without it. This approach is not surprising in view of the legislative history and the historic background of the subject,
Spe . 597 of the appendix. 5 Such a referral procedure is contrary to the preferable procedure on requests to an agency holding unclassified records obtained from another agency, which is usually to consult but not to refer the request to the originating agency.
• Phillippi v. CIA, 546 F. 2d 1009 (D.C. Cir. 1976). See p. 606 of the appendix.
? Weissman v. CIA, - F. 2d 40 Ad. L. 20 (Pike & Fisher), D.C. Cir. Jan. 6, 1977. See p. 600 of the appendix.
• Halperin v. Department of State, F. 2d Civ. No. 76–1528, D.C. Cir. Aug. 16, 1977.
coupled perhaps with the burdens that courts often perceive in performing in camera inspections, especially if the records are voluminous or technical in nature. Finally, in the recent Halperin case, the decision, among other things, emphasized that where material withheld under exemption 1 had not been classified until after a freedom of information request for it was received, the agency will have problems of proof that would not ordinarily be present in exemption 1 cases.
I will not go into the problems raised by the various administrative costs and burdens of processing requests for records with exemption 1 aspects. Such burdens are considerable and sometimes of questionable public interest justification. However, I understand that you have other witnesses who will address those problems in detail.
My appraisal of the substantive impact of the amended exemption 1 on national security is that genuine national security information can probably be adequately protected within the act's overall mandate for openness. In other words, my evaluation of the present situation under exemption 1 is “so far, so good.” While there are still real problems and much room for improvement, the agencies with major national security responsibilities are applying greater restraint in the use of classification to deny access, the Justice Department is encouraging these developments, and the courts seem willing to take into account the efforts and responsibilities of these agencies. Our experience with exemption 1 is, for me, a heartening demonstration that a government based on the constitutional separation of powers can effectively realize important and even occasionally conflicting goals, so long as the several branches of government work conscientiously and with due regard for each other's functions.
That, Mr. Chairman, is generally the current situation concerning the exemption for classified national defense and foreign policy records. But, as you know, on June 1 the President issued Presidential Review Memorandum 29 (PRM). This memorandum, entitled a Comprehensive Review of the Classification System, directed the preparation of a new Executive order to replace Executive Order 11652. The stated goal of the undertaking was “to provide for greater openness in government while at the same time effectively protecting sensitive national security information.” The proposed Executive order to replace Executive Order 11652 was circulated for comments to departments and agencies this week—thus, we have not had sufficient time to make a detailed analysis of its contents. However, I would like to point out and comment generally on several changes relevant to today's topic.
Before highlighting specific, proposed changes, I would like to note that the committee established to draft the proposed Executive order was directed to consider, inter alia:
How to provide for the maximum release of information to the American public on government activities and policies consistent with the need to protect sensitive national security information ;
How to promote increased public access to this information through a more rapid and systematic declassification program.
Mr. Chairman, my initial reaction to the proposed Executive order is that it makes significant progress toward accomplishing those goals.
If one compares Executive Order 11652 with the proposed order, I think the following important changes would stand out:
1. The creation of a new Security Information Oversight Office to replace the Interagency Classification Review Committee (ICRC). While the Oversight Office will assume the functions of the ICRC, it has also been strengthened to provide for more effective oversight and control over the classification process.
2. The administrative sanctions for classification abuse have been strengthened.
3. There are new restrictions and controls on the creation of special access compartments.
4. For the first time there will be comprehensive classification criteria which must be applied by the original classifier before a document can be classified. This new concept should go a long way in reducing overclassification, especially in doubtful situations.
5. The problems associated with the classification and declassification of foreign originated documents have been addressed and the handling of such documents has been clarified.
• See exhibit 50, p. 458 of the appendix.
6. The proposed Executive order also expands the prohibitions applicable to the classification process.
7. The new order, as proposed, does not tie the level of classification to the length of time the document must remain classified ; declassification will no longer be too dependent upon the level of classification.
8. The departments and agencies will be required under the proposed order to adopt declassification guidelines. This is intended to facilitate the declassification of certain documents in bulk.
9. Mandatory declassification review will occur under the new order at 20 years rather than the current 30 years with an exception for foreign originated documents. They will remain at 30 years.
I think all of these changes, Mr. Chairman, will go a long way in establishing a manageable classification system and one that will provide greater public access to this information.
Senator ABOUREZK. The final witness today is Mr. Mark Lynch an attorney with the ACLU.
Do you solemnly swear that the testimony you are about to give is the truth, the whole truth, and nothing but the truth, so help you God?
Mr. LYNCH. I do.
TESTIMONY OF MARK LYNCH, ATTORNEY, AMERICAN CIVIL
LIBERTIES UNION, COUNSEL TO THE PROJECT ON NATIONAL SECURITY AND CIVIL LIBERTIES
Mr. LYNCH. Thank you, Mr. Chairman, for inviting me to appear here this morning before this committee.
This committee, of course, has played an historic role in the development of information law. Those of us on the outside of the Government are delighted to see the committee undertaking this kind of oversight hearing at this time and considering the possibilities of any legislative changes that might be appropriate and necessary.
Senator ABOUREZK. We have heard testimony from Government agencies in the past few days that they are delighted with the Freedom of Information Act.
Mr. LYNCH. I am prepared to testify on two different matters this morning. First, is the operation of the Freedom of Information Act under the (b) (1) exemption, with respect to classified national security information. Second, is with respect to the draft Executive order.1
Things have changed in Washington apparently. I got my copy of the draft order on Wednesday afternoon. Mr. Harmon did not get his until last night. And Mr. Feldman has not gotten his at all.
I am somewhat better prepared, although not completely prepared. We will be submitting a detailed commentary on the draft order. We are not sure to whom to submit it yet, but we will certainly submit it to this committee, among other bodies.?
In the past day and a half, I have done the best I can to consult with several of my colleagues and a few of my adversaries to get a reaction to the order.
First, I think perhaps I ought to comment briefly on the way the act is working with respect to classified information. In doing so, I think I will be commenting on a couple of matters that Mr. Blake raised and a couple of matters that Mr. Harmon raised, and Mr. Feldman as well.
1 See exhibit 50, p. 458 of the appendix. • See p. 469 of the appendix.
First of all, the act has been spectacularly successful in disgorging classified information; that is to say, a great deal of information that has been declassified as a result of freedom of information requests.
We find that when people make initial requests, they very frequently get some of what they are after. They then appeal to a higher level in the agency, and they get somewhat more information. In fact, this varies drastically from agency to agency. For example, the appeals practice of the Department of State-based on my experience handling a lot of cases; I do not have an empirical, statistical basis—is virtually useless. They almost always affirm the decision of the initial authority if it was to withhold information.
The CIA, on the other hand, has an appeals process which is extremely beneficial. The appellate level—and I am not altogether clear on who they are—seems willing to release more information than the initial authority. I suspect that this is because the initial decision is made by the originating component. Frequently the information that many people are after-some of the most interesting information-is information that has been originated by the Directorate of Operations, the clandestine service.
Obviously, as Mr. Blake pointed out, these people have been trained in the arts of secrecy for many, many years. This has been a traumatic experience for them. I can understand and appreciate that.
At the higher level, other people, with a more dispassionate point of view, get into the act. Their decision is frequently to release more information. Then we find that if we go to court, the agencies release still more information. I think Mr. Blake did not represent the situation entirely accurately when he said that the CIA has not lost any cases under the (b) (1) exemption. There are many cases where people bave filed complaints in court, and the CIA has released very substantial amounts of information once the complaint is filed. This is well in addition to what they released at the appellate level. Additionally, as the litigation progresses, it has been our experience that even more information is apt to be released.
That is because of a case that no one has discussed yet this morning, l'aughn v. Rosen,3 484 Fed. 2d 820 (D.C. Cir. 1973). Vaughn v. Rosen is the central procedural case with respect to FOIA cases. It sets up a series of procedures whereby an agency must file affidavits with the court in which it indexes the documents that are being withheld and provides a detailed justification as to why those documents are being withheld, under whichever exemptions are being claimed for the documents or portions of documents.
There initially was an attempt after the act was amended that decision was rendered prior to the 1974 amendments. There was an initial attempt on the part of the Justice Department representing its clients in the national security community to try to avoid the requirements of Vaughn v. Rosen in (b)(1) cases. While they met some success in some district court cases, the Vaughn requirements have been held to be applicable to (b) (1) cases. That is one of the holdings of the Phillippi case, which involved Glomar Explorer materials.
1 See p. 473 of the appendix. 2 See pp. 69, 71, 88 of the hearing text. 3 See exhibit 69, p. 618 of the appendix. + Phillippi v. CIA, 546 F. 2d 1009 (D.C. Cir. 1976). See p. 606 of the appendix.