Declassifying the Presidency
Air Date: December 3, 2016
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HEFFNER: I’m Alexander Heffner, your host on The Open Mind. This year we’re celebrating the 50th Anniversary of the Freedom of Information Act, the federal law that allows for the full or partial disclosure of previously unreleased information and documents controlled by the US government. And today the nation’s leading archivist of classified material joins us. Tom Blanton is director of the National Security Archive at George Washington University, the world’s largest, nongovernmental depository of declassified documents. The archive won journalism’s prestigious George Polk award for piercing self-serving veils of government secrecy, guiding journalists in search for the truth, and informing us all. Tom and I will explore the historical and contemporary application of FOIA as we know it casually, the nature of government secrecy today, and how reasonable confidentiality can be balanced against the vastly changing expectations of public scrutiny in the internet age. Welcome Tom.
BLANTON: Thank you Alexander.
HEFFNER: It’s a pleasure to have you here. Um. How do you think those expectations have changed the way information is declassified today?
BLANTON: We’ve got a 50 year-old law um, passed really without a lot of enthusiasm from the then President Lyndon Johnson. He didn’t even hold a signing ceremony, his top aide Bill Moyers said he had to e dragged, kicking and screaming into actually signing the bill, telegrams from newspaper editors saying, “Don’t let this thing die by inadvertence.” And Moyers writes back, “Inadvertence not our style.”
BLANTON: Um, Johnson wasn’t happy about it, the agencies pushed back. There were about 6 or 8 years of really noncompliance until the congress, in the wake of Watergate and Vietnam um, really created the law we know today, the Freedom of Information Act, with Amendments in 1974 over a Presidential veto. So, right there you just look, it’s a tangled history even at the beginning. There’s the things we all know about, bureaucratic resistance to openness, a constant struggle of citizens to figure out what’s the government’s up to. Um, it’s fascinating to me, one of the original cosponsors in 1966 was a young Illinois congressman named Donald Rumsfeld and he had brought some republicans with him because they wanted to open up the Johnson administration. Rumsfeld gave this great quote at a floor speech. He said, ‘Look the government has gotten so big, government is involved in so many parts of our lives, we as citizens as Americans have got to have the right to get in there and open up those government files. Now, looking back 50 years, we’ve done, we’ve published hundreds and hundreds of news making stories that Freedom of Information Act requests were the key to, most recently the Flint Michigan water disaster, really the decisions not to put corrosion controls in the new water supply for Flint River were made by some bureaucrats in the state department of environmental equality, and the state Freedom of Information Act actually exposed that, who did wrong, what were the bad decisions, and those folks are under indictment today. That’s the power of open government. That’s the power of the Freedom of Information Act. But it takes time.
HEFFNER: Johnson and definitely Bill Moyers would be proud because when you go to Austin, Texas to the LBJ library and museum, pick up the phone and you listen to those conversations that were recorded prior to the elimination of that recording system.
BLANTON: It’s amazing. You’re a fly on the wall while the President is haranguing senators. It’s amazing.
HEFFNER: Right, now to what extent will that be applicable now that there is not a phone recording system, I mean if you look at the evolution…
BLANTON: That’s a great question…
HEFFNER: From analogue to digital, what are we retaining uh, from, most recently let’s look at the Bush years and these Obama years.
BLANTON: Well let me give you, let me give you a good example, because you’re really onto something here, because, and there’s some serious historians like Michael Beschloss and others who’ve said we ought to make a deal with our presidents, tape everything they say while they’re in office, but they get to hold it for 20 years, 30 years, but history would be the better… The problem with that is that open government is not just about after the fact. It’s a deterrent in, while they’re in office. It, after Nixon, after the Supreme Court ruled, he couldn’t own his own tapes. That they belonged to the people. No president is going to tape their conversations anymore. And that is a loss to history. But I’ll tell you just a moment. When we won a lawsuit to save the Regan and Bush White House email from the 1980’s, I published a book, we convinced a federal judge, we said, government said, Email isn’t records. Email is message slips, like throwaway message slips, not historical valuable, and we said to the judge, do a sampling. We’ll give you 50 names of people who worked for Reagan and Bush, people like Colin Powell. Just do a random sampling of their email use areas and you look at it judge, or have the declassifiers, you look at it and tell us, is it a historic record… I published a book of the samples and they were phenomenal historic records, how we’re going to assassinate Noriega, secret deals with the Saudis, getting ready for a summit with Gorbachev, all very substantial, and so a former board member of the National Security Archive, a great, he’d been a professor at Mount Holyoke, named Tony Lake, but at the moment when I published, he was the National Security advisor to the president of the United States, Bill Clinton, I said, ‘Tony,’ calls up, says, invited me over, says, we’re gonna do a little book party over here with the National Security Counsel staff. And I go, Tony, you’re a real advocate of open government. This is great, he had a stack of my books, I’m signing them to people, I said, Tony this is great. He said, No, I’m giving this book to my staff so none of them ever write emails like this for people like you to get a hold of. Right? He said, You know this whole pressure from congress and Freedom of Information Act, it means we’re the historic record is way smaller. And then one of his top aids says, Tony that’s not, that’s not true. He says, no wait a second, we don’t have a tape or a transcript of what I say to Bill Clinton in my briefing in the morning. And she said, But Tony, you come out of that meeting with your little index card with a few check mark and you stand next to me and you dictate a hundred emails that go out to 20 different departments and embassies, and then you go over to Sandy Berger and you dictate another hundred. She said, by the end of the day with what’s going out from us and what’s coming back,’ this is the electronic communications, we actually have a much larger quantity of records, of government decisions of what the President wants, of what the White House wants. And I think the numbers are, our lawsuit saved 250,000 roughly, emails from the Reagan years, about 450,000, that’s a lot, would take a long time for a team of grad students to go through them all, and yet the Bill Clinton years, the lawsuit saved 32,000,000 individual email messages sent by White House staff. We ultimately had to bring that case again against George W. Bush, and the estimate from the National Archives when they got all the backup tapes, there’s something like 220,000,000 individual messages. And then the Obama administration put in archiving on their first, e-archiving, and they said, oh, we’re setting this with you guys. But, we’ll do 220,000,000 you know, the first year or two. The president himself’s using Blackberry. So your volume is enormous. And I think the struggle of the government goes back to your original question. Government can’t come up with the resources to go through it, review it for National Security, for privacy, or for some of the other values we also want to protect.
HEFFNER: It’s a question of capacity, and that cloud is limitless in terms downloading information. And so you have to pick apart the salient details and so for example, of prime interest will be the Presidents’ emails.
HEFFNER: Uh, that…
BLANTON: But there’s a good law, and it’s a post-Nixon law called the Presidential Records Act that says, what the President creates belongs to the people. Before Nixon it was their private property, so presidential records ended up all kinds of places.
HEFFNER: So when will president Obama’s…
BLANTON: Five years…
HEFFNER: Blackberry transmissions be public? Five years.
BLANTON: They won’t all be public, you can start asking for them…
BLANTON: Asking for them to be reviewed, nonclassified, five years after he leaves office. For the classified, twelve years after he leaves office but that’s just the beginning, because…
HEFFNER: The beginning of, the National Archives…
BLANTON: Of a review and release process, exactly. And that, that goes to your point I think, which is the system we’ve got for releasing what is a larger and larger universe we’re dealing with, a larger and larger universe of historically valuable materials, it’s kind of a zero sum game. It’s sort of like, any new Freedom of Information request that we file from the National Security Archive, in effect slows down last year’s Freedom of Information request…
BLANTON: Right? So, the key is I think prioritizing, figuring out what are the most, what are the documents that are about the policy? That’s really the focus it’s, uh, what archives and museums call curation. You don’t ask for every bit of administrivia. You try to focus on, what are the key moments? When did the President meet with a foreign leader? What did they talk about? What were the briefing papers like? What decisions came out of that? That’s, that’s what history needs, and I think that’s what accountability needs too.
HEFFNER: Of course there has to be a negotiation between those nongovernmental entities like your own, um, journalists, and the stakeholders within government. But what, what surprises me is the lack of feeling on the part of the public that, and maybe it’s just because of the portrait of deceit illustrated in the manipulation and deletion of emails that sort of distracted form the point that, why aren’t Secretary of State Clinton’s emails released on the same timetable as um…
BLANTON: Say president Obama’s…
HEFFNER: I, I know that the private server complicate this, and of course her political candidacy did as well, but, you know the the example that I use, and you’re familiar with this because you’ve studied the Cuban Missile Crisis closely, if the Soviet Union, the then Soviet Union became aware of details involved in US decision making in real time or shortly after the crisis was, um, resolved or temporarily resolved, we, we might have faced another one shortly thereafter. But the question really is, what is the appropriate timetable in the digital age for these data to be released?
BLANTON: I think in the case of Mrs. Clinton’s emails, she actually said the right timetable, they should all be released right away and she doesn’t understand why it’s taking so long. they were unclassified to begin with. I think the claims about classification in those emails that the intelligence community has made, pushing against the State Department is really a bureaucratic turf battle. And when those get declassified which they will down the road, I think that what we’ll find out is, her aides were telling her on her own classified email, that the New York Times had just published a front page story about a drone strike in Pakistan and she says, great, send it to me. The intelligence community considers anything about drone strikes in that period to be top secret. And I think those claims are going to fall apart. They aren’t, that’s not where she was getting her intelligence briefings. She wasn’t risking, I think, our national security with those messages. My experience with a couple of million declassified documents over the last 25, 30 years is, that it’s usually hard to understand how it could have been classified for as long as it was, that, I think our experience shows, and the estimates vary between about 50 percent over-classification to about 90 percent. I mean, and these are from former officials. I think it was former Secretary of State Larry Eagleburger said, shortly after he left State Department, gosh, within a couple of years most of the cables could come out.
And, and that’s true. There’s about 10 percent of what the government classifies that’s a real secret. You’d agree on it. I’d agree on it. Daniel Ellsberg would agree on it. Daniel Ellsberg [LAUGHS] leaked the Pentagon Papers, and he held back the volume that was about the back channel negotiations for peace.
Because he didn’t wanna squash those back channel—there are real secrets. Right? I think that’s correct. The problem is that all the laws of bureaucracy and bureaucratic behavior, move toward vast over-classification.
HEFFNER: How do you reform FOIA?
BLANTON: One of the things that our law is missing that a number of other laws around the world, like Mexico, or like Chile, like Japan… They have s—a harm or public interest test. So in, in Japan for example, you can’t withhold information about public health matters, just because it’s a part of a current law enforcement investigation or it invades personal privacy or it’s a national security matter ’cause they had such horrific experiences with mercury poisoning and HIV in the blood supply. In Mexico they have a human rights override. They’ve had a, they had dirty war experience. Think about the disappeared students just from a year or two ago. In their Freedom of Information law they put a human rights override.
So if it was about an abuse… of, of rights, by government, by security force, whoever, you couldn’t claim, oh national security, law enforcement, to withhold it. In our country, no.
They agencies can get away with that withholding. So, number one thing I’d change about our Freedom of Information law is to add in that kind of public interest override. Particularly on human rights grounds, but I also think public health as in the Ja — Japanese example’s a good one.
The second thing that a lot of laws around the world have done, and I’m talking about India, again, Chile, Brazil, Mexico’s. They put information tribunals, or in the case of… places like Scotland, a single commissioner who has a power to order the release. Now, ultimately he can be taken to court, or she can be taken to court. The agencies can still resist but–
In Mexico they have the power to override even the Attorney General, to order the release of documents on human rights. This is—amazing. Because, what you’ve just done is you’ve addressed a core bureaucratic problem that Max Weber wrote about a hundred some odd years ago, which is secrecy fundamentally is a tool of bureaucracies to protect turf and power.
If you move the locus of the decision about release out of the cold dead hands of the bureaucracy, to just an independent arbiter, I’m not talking about outside government. This is inside government. This is appointed and confirmed by the Mexican senate, you get extraordinary results. Um. And you get a… degree of secrecy that means the real secrets get protected. But the stuff that should get out, for accountability, for history, gets out, closer to real time.
HEFFNER: How do you envision the makeup of this independent government arbiter?
BLANTON: There’s a, there’s a model right now in the national security sphere called the Inner Agency Security Classification Appeals Panel, right? It’s um… we call it Ice Cap. But it’s more like an ice pick. All it is is a group of senior officials from a half dozen agencies that deal with classified information. If you’ve been denied a document on the basis that the agency claims it’s classified, you can appeal it to these folks.
They’ve ruled in favor of the requester about 65, 70 percent of the time. And this is a group of, there’s a person there from the CIA. There’s a person there from the National Security Council. Person there from State. Person there from Justice. You would think they would all protect the bureaucratic interests.
But it turns out if you just move the locus of the decision out of the agency, to this independent body… you get extraordinary results.
In our system, we, you gotta go to court to do that. And that’s wasteful.
HEFFNER: Why, why don’t those leaders of the agencies have the will to… do what you’re describing, independent of that body?
BLANTON: Because you always protect your own. You protect your own. And there have been real leaders in the agencies. And I look back, say, Hazel O’Leary was a Secretary of Energy in the 1990s. She saw an opportunity, and, with, for example, the Russians, to release details about our nuclear tests and their nuclear tests.
Now, tracking their nuclear tests had been one of the number one goals of our entire billion dollar intelligence community. With overflights and balloons and everything else. And here she was, we’ll show you ours if you show us yours. Giving the data on the size of the blasts, the, essentially the makeup of the bomb, the date and the location, which verified decades of speculation. But created a real historical record that was transparent on both sides.
We were way ahead of the game. Simultaneously she got educated because of some newspaper reporters who showed that our government in the 40s, 50s, 60s, had done radiation experiments on humans without their consent. And she was outraged.
And she said, OK, I don’t care if the laws say this stuff is classified. I’m gonna order it released. She got outside experts, inside experts. She put declassifiers on the case and she got President Clinton to back her up. She overrode really what were 3 decades of sort of… habitual, knee jerk secrecy, to bring some accountability.
So… leaders make a big difference. Individuals as you well know make a big difference inside government. But when you’re in this process of wading through piles and piles, tens of thousands of e-mails, looking for a word that’s classified or a mention of a foreign agent, it’s uh…
The labor intensitivity is… out of this world. And I think, unless you get an independent crow bar in there, um, it’s not gonna work.
HEFFNER: Public support for this, uh, how many US senators um support this idea?
BLANTON: I think a number of members—
HEFFNER: Did you…
BLANTON: of Congress are going through a educational process. Because starting about 10, 15 years ago, uh, senators like Cornyn and Leahy, bi-partisan, Cornyn from Texas, Leahy from Vermont, agreed that the Freedom of Information Act wasn’t working. That delays were building way up, there were, people like us brought in story after story after story at these hearings of being dissed by the bureaucrats. Of being told to go away. And no records responses.
We caught the… FBI… sending to 65 percent of their Freedom of Information requests, No, we have no records. All they did was, they set up a central index. Requests would come in. They’d run a search on that index that they knew only in contained about 10 percent of the agency records.
And went right back to the question. We, I’m sorry, we’ve searched our central index, and there are no records responsive to your request. The senators got really upset about that, held hearings, and came up with this idea—and I think a lot of journalists contributed, of a mediator. This, it’s called The Office of Government Information services.
It was put into the law in 2007. And it’s kinda like a divorce counselor. It’s a phone number [LAUGHS] you can call up if you think you’re being jerked around by the agency. They’re located in the National Archives, but they’re, they’ve got backing from the statute, and… members of congress are really interested.
I think over time… the, people like Cornyn and Leahy are gonna see that they’re gonna need to turn that office into a real Information Commissioner, a real tribunal. Right now—
BLANTON: They’re calling, they’re negotiating, but they don’t have the power.
HEFFNER: Theoretically a president could issue an executive order that would create the kind of… um… bi-partisan collective or coalition within the cabinet secretaries to do what you’re proposing, right? I mean it’s, it’s within the realm of possibility.
BLANTON: But even…
HEFFNER: But I—
BLANTON: Look at President Obama. Day One. Some of the best openness directives any president has ever done. We went government wide, each year, the next 4 years, to test what did agencies do in response to the president’s very clear directives. And…at the end of the first year we found 1 out of 5 agencies had actually done anything, change their regulations, change their processing, did any, did, responded. That created a headline. Rahm Emanuel was the White House Chief of Staff. He got really upset, right, I’m sure he was cussin’ up a storm.
BLANTON: He did send around a memo to all the cabinet. I said, guys, [LAUGHS] I understand you’re working hard…
BLANTON: But let’s do better. Finally after 3 years, that number got up to about half. So…
HEFFNER: There’s a disconnect there.
BLANTON: It’s not just a disconnect. I mean one of our, one of our friends at the White House said you don’t understand Tom. You know, we turn the wheel of state all the way over toward transparency, but it’s such a huge boat! It just takes a long time… and I said no. It’s not one boat.
BLANTON: It’s a flotilla [LAUGHS]. There’s some aircraft carriers. And there’s some cigarette boats. And there’s some skulls in there. [LAUGHS] And they, getting those folks synchronized, it doesn’t happen.
HEFFNER: We have to spend a little bit of time uh before we conclude with this question of how the prevalence, um, or at least the prospect of hacking has impacted your work in terms of declassification.
BLANTON: I would step back one step from that very prescient question and just say that… I think the biggest problem in cyber, and cyber policy is that so much of it grew out of the intelligence community and developed in complete secrecy. And today we have leaders of the top agencies, like Cyber Command, saying, you know, we gotta have… academics come in.
We need law professors. We need a, a more robust public debate about, what are the rules of the game, right now we’re way ahead but… as you say, hackers are working, uh, their wiles everywhere.
How are we gonna build a set of norms? In effect we did that in the nuclear age. We built a set of norms like the Nuclear Non-Proliferation Treaty and… a virtual taboo on the use of nuclear weapons since 1945.
In cyber, we’ve gotta do the same thing too. But we’ve gotta open up that discourse so it’s not just inside the hot house of the spy agencies.
We’ve created a whole sub-site on our National Security Archive website where we’re just publishing the declassified records, and what we’re finding, interesting, is that, agencies that are habitually so secret—I mean National Security Agency out at Fort Mead. Those initials used to stand for No Such Agency. And if they were mentioned in a room they, they would all leave the room.
It was just so secret and they’ve realized that was a real disservice to them, to what they were actually doing that was for our national security, that they really blew it on the Snowden revelations, and they have retired deputy directors out there saying we should have been more public with this stuff.
BLANTON: So for us it’s not that the hackers are really producing much that’s revelatory. They’re not getting President Obama’s Blackberry. They’re getting some… staffers at the Democratic National Committee whining about their fundraising problems, right?
I’m sorry, it’s not earth shaking and it’s not, it’s not really useful even to historians or to government accountability. The really good stuff, the top decisions about cyber war making, about stocks—that stuff is pretty well guarded. And not gonna get hacked by the likes of these, of Guccifer and the like.
For us, the problem is, we’ve gotta keep the spy agencies in this virtuous circle. They got a big splash of cold water from Edward Snowden. And they were caught in some public lies. And they lost a ton of credibility. And they have been rushing to declassify. I, by account, I did a chapter in a book called After Snowden.
They’re just trying to assess government secrecy before and after. And realized from counting the pages that have been published by Snowden’s partners and declassified by the intelligence community, the intelligence community was actually ahead. It was about 3200 pages out of the intelligence community, about 2700 pages published by Guardian, Greenwall, and Wash Post, you name it, right?
And it’s interesting. Now, granted, a Snowden page is, doesn’t have any redactions on it so it tells you a lot more than a often redacted intelligence community page. But it gives you a sense of how they’ve woken up to the challenge.
HEFFNER: And apparently are attempting to preempt some of these actors…
BLANTON: This was an interesting discussion I’ve had with people inside and outside the government. Because we got declassified, the underlined directive showing that on our side, our cyber warriors got the clearance to do offensive operations back in 1997. When this wasn’t even talked about publicly.
You know, the big hacks of personnel management or, or Target, the department store, had not happened yet. And yet we’ve been on the offensive.
So moves like what the Obama administration did with the Chinese were really interesting ’cause it shows you the direction they, he basically, President Obama put a condition on holding a summit with the Chinese leader that they agreed to reign in their cyber hackers which were mostly operating out of the People’s Liberation Army. And it looks like, at least by the assessments they’ve told Congress, that Chinese, organized Chinese hacking is way down from where it was before that summit.
Well that, that’s an interesting direction ’cause it shows you, also, the challenge of what we probably gonna have to do on drones. Right now we’re the ones with the most effective drones but drones are not that difficult to build. But if we don’t create norms, we don’t create rules, and this debate is happening inside these documents that we’re getting declassified.
And I think that feeds the discourse. That, that’s part of uh our mission is, you know, break loose the documents, challenge the unnecessary secrecy. You know, add real robustness and primary sources to scholarly work and to the public debate.
HEFFNER: Tom. Thanks so much for being here.
BLANTON: Alexander, a pleasure to be with you.
HEFFNER: And thanks to you in the audience. I hope you join us again next time for a thoughtful excursion into the world of ideas. Until then, keep an open mind. Please visit The Open Mind website at Thirteen.org/openmind to view this program online or to access over 1,500 other interviews. And do check us out on Twitter and Facebook @OpenMindTV for updates on future programming.