Secrecy and the Archivist
It is easy to misread the efforts of the current president regarding secrecy and national security as being unique to him, partly because he is so aggressive in arguing for the need for it for waging a war on terror. Robert M. Pallitto and William G. Weaver, Presidential Secrecy and the Law (Baltimore: Johns Hopkins University Press, 2007) demonstrates that there is a long history predating what “W,” Cheney, Ashcroft, Gonzales, and Rove have been up to in terms of keeping their activities behind closed doors. Pallitto and Weaver, political scientists, firmly document that the Bush administration is the most secret of the presidencies, but they also document that no one in this administration invented the idea. What they show is that after 9/11 opportunities appeared to create a presidency that is “inconsistent with constitutional provisions and the functioning of our democracy” (p. 8). Or, seen from another angle, “The second war with Iraq is arguably the only combat action in United States history justified solely on information unavailable to the public and Congress” (p. 5). Things have gotten so out of hand with presidential secrecy that the authors report that when they sought out policy documents governing the definition and application of the notion of state secrets that they could locate none or anyone who knew of such policies.
The point of this study is to investigate, as the title suggests, the judiciary’s role in presidential secrecy. As Pallitto and Weaver suggest, while Congressional oversight has been weak, the judiciary has opted to ignore or defer to the president when the president claims the right of secrecy or points to the needs of national security. The courts have usually sided with the executive office when it has embarked on new wiretapping adventures, looked the other way when the president has taken steps that are contrary to both “political accountability and legal scrutiny” (p. 3), not been concerned when the Freedom of Information Act has been skirted, records over classified, executive orders issued hiding more and more information, and national security – a “notoriously vague term” (p. 69) – invoked repeatedly. Even the Foreign Intelligence Surveillance Act, passed in 1978, and establishing some judicial oversight, has been over ridden by the actions of the various presidents over the past three decades. Pallito and Weaver conclude that while there are legitimate reasons for reacting to “crisis conditions” involving restrictions on civil liberties, this is very different from a “jurisprudence forged in secret, permanently unavailable to congressional oversight, and for practical purposes not subject even to Supreme Court review.” That the latter has occurred, Pallito and Weaver describe as “astounding” (pp. 191-192).
As one might expect, there is a lot in this study relating to the work of archivists and records managers, and this is particularly important since government records professionals and the National Archives have been central to the development of this professional community over the past century. In the book there is a particularly compelling chapter, “The Classified President,” reviewing the evolving nature of the classification of records as possessing various levels of secret information. Considered along with the legacy of the Iran-Contra email case, E.O. 13233 and its additional restricting of presidential records, the increasing power of the attorney general’s office, the ramifications of the Patriot Act, and the extraordinary instances of “signing statements” by the president when enacting new legislation, this book is a depressing read for any archivist committed to open access to records and democratic accountability. There is special reason to be concerned for the archivist’s role and mission. The Information Security Oversight Office (ISOO), frequently cited by people in the profession about the recent NARA reclassification scandal as a hopeful sign that the National Archives will be more vigilant about such matters in the future, is also described as being “understaffed and overcommitted” and as having no real authority. Moreover, the ISOO is in NARA, “a venerable institution but not one placed to have a profound effect on current security operations” (p. 37). These are their conclusions, not mine, but it reveals how some many others outside of the archival community tend to see this government archives.
At roughly the same time of Pallito and Weaver’s study there also appeared investigative reporter Ted Gup’s book, Nation of Secrets: The Threat to Democracy and the American Way of Life (New York: Doubleday, 2007). Gup commences his book by tracking all the news stories appearing in one day related to secrecy in government, corporations, universities, in the media, and even cultural organizations – building a case for how pervasive secrecy has come in all areas of our society. Gup seeks to reveal the causes and consequences of such secrecy in American life, and the result is one of the most depressing books I have read in a long time (far more depressing that the study by Pallito and Weaver, perhaps because he ranges far beyond government circles to describe the increasing secrecy in our culture).
Secrecy is portrayed as a kind of toxin, contaminating other aspects of society and counteracting even good laws and policies, or, in the worse case scenario, keeping information from the people who need it most. As Pallito and Weaver hone in the judiciary’s role in the development of a more secret society, Gup ranges over the full range of institutions, including the courts. The books compliment each other, especially as they have many insights in and comments about records and archives, providing both a historical or long-term perspective as well as analysis of contemporary events. Both books provide an assessment that secrecy in government, or any organization, is not new to American culture, but both also suggest that the half-decade since 9/11 has given raise to a secrecy that is far more expansive and deep-grained than at any other time in our history. Gup notes, “As of this writing, it has been more than 1,500 days since the events of September 11, 2001. More time has elapsed since that between Pearl Harbor and the surrender of Japan, and still there is no end in sight – to the war, nor to the environment of urgency in which so many secrecy measures have passed. Indeed, the only thing that has been rationed in this strange undeclared war is information” (p. 17). And the book is filled with data revealing the extent of the secrecy disease: “In 2004, by the government’s own figures, for each dollar the United States spent on declassification, it spent $148 on creating and protecting new secrets, investing in vaults, training personnel in security measures, conducting background checks for clearances, and the panoply of other expenses associated with secrecy” (p. 106).
Gup also examines the increase in the quantities of classified records and information, the weakening of FOIA, the growth of executive authority in the federal government, the weakening of judicial review, the president’s excessive use of signing statements in the enacting of new laws, wiretapping of private citizens, the establishment of secret prison camps, and the hyperbole about the potential of our enemies possessing weapons of mass destruction. By now, at least for anyone slightly more than half-conscious over his or her morning newspaper, the story is a familiar one. The result of all these kinds of activities is, according to Gup, the marginalization of both citizens and consumers. Secrecy has made the information society the surveillance society or the security age, evident in that “in government and industry alike, the technology of access has spawned an equally robust technology of denial” (p. 24). Gup reinforces his arguments with a series of brief case studies humanizing the impact of secrecy on individuals just like us. And he demonstrates how secrecy has become a bureaucratic tool for building status, securing power and authority, and protecting government officials.
Nation of Secrets has a number of archival twists. Gup considers how in the past there has always been the idea that somehow history (the future) would ultimately judge and hold accountable political and other leaders in our time through eventual access to their records. “Those who operate in secret know they might be held accountable, if not in a court of law, then at least in the court of public opinion to be convened by posterity. History is a restraint that might pull them back from reckless decisions that would black their reputations in perpetuity.” I can hear archivists saying amen to this sentiment. Gup continues, “But today, even history is being purged. Dusty old records are being removed from the U.S. Archives and presidential libraries. Other records are being withheld or simply disappearing. The corrective head of history with its distant day of reckoning is itself now manacled by secrecy” (p. 20). Clearly, archivists and records managers now face new challenges, although one must consider just what the role of these records professionals have been in contributing to this purge.
Gup makes a number of references to archivists. He considers the NARA reclassification program. Gup considers some of the more irrational instances of government secrecy, often involving the closure of much older records, such as the CIA’s blocking of a file with a formula for invisible ink dating from the First World War. He travels to the Library of Congress Manuscripts Department and requests a list of everything not allowed to be seen, discovering that there are 104 collections with restrictions stemming from national security, ranging from collections donated by government officials to those given by writers and journalists. He also recounts how Harvard University has placed lengthy restrictions on its official records, with a number of troubling comments. First, Gup considers how Harvard’s “relationship to its own past is filled with contradiction – a commitment to preserve the past but not to release information about it until all the participants are safely beyond its reach and the patina of dust is deep enough to insulate them from accountability and embarrassment” (p. 205). Second, Gup reports on the rationale used by Harvard archivists, stating that they “assert that making the making the records of university administrators and professors available earlier might make them self-conscious and induce them to write for history rather than for themselves and their peers . . . . Review by posterity neither remote nor posthumous may have as much a salutary as a chilling effect. But in choosing between preservation of records and protection of reputations, Harvard has conveniently chosen both” (p. 206). In none of these examples does Gup lay blame at the feet of the archivists; rather, his point seems to be that the culture of secrecy is now so pervasive that even those who are on the frontlines of preserving and making accessible historical records seem caught up and negatively affected by this culture.
These books paint a portrait of a troubling set of problems for archivists to mull over how they will be able to function in government, and virtually any other institution, in our twenty-first century society. Can archivists work for organizations operating in secret? The answer is obviously yes. However, the real question is whether this is ideal or not, and if not, what the archival community can do about it. The Society of American Archivists recent statement on the federal government’s delays in responding to FOIA requests suggests that the American archival community is dedicated to open access: “Archivists and the institutions they represent hold records with historical value in trust for current users and for future generations. Government archivists and archives keep a public trust for providing access to records created by elected and appointed officials and the agencies they operate. All citizens depend on public records to guarantee their rights and entitlements, hold their government accountable, and understand the history of our country. The Society of American Archivists advocates for equal and open access to records in a manner that is consistent with maintaining confidentiality and protecting individual privacy.” However, is SAA any more influential than NARA in having an impact on federal policy and activities? It seems unlikely that it is. And this places a terrible burden on individual archivists to work out how they will deal with such matters when they are asked to close down records long open or to conceal documents in order to protect reputations or to hide illegal or questionable activity. Such matters are the most pressing issues to be addressed by the archival profession, and there appears to be no easy solutions.