Reading Archives

With this blog, I am planning to offer, as regularly as possible, critical observations on the scholarly and popular literature analyzing the nature of archives or contributing to our understanding of archives in society. I hope this blog will be of assistance to anyone, especially faculty and graduate students, interested in understanding archives and their importance to society.

Saturday, August 18, 2007

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.

6 Comments:

At 8:38 AM, Anonymous Maarja Krusten said...

A very interesting review, Richard, many thanks for posting this.

I certainly understand why you close on such a downbeat note as far as archivists are concerned. NARA must balance the needs of competing stakeholders (creators of records and those seeking access to them). It also must hew to executive branch message discipline. Consequently, it is limited in what it can say about its own operations. And my experiences suggest that its executives and employees don’t take a monolithic view on access issues, anyway.

If NARA and SAA face limitations, who can speak up to explain or advocate on these issues? What about NARA’s customers? How effective are they in discussing these issues? Some scholars who have spoken up on access to archival records also have ended up taking public positions in opposition to current national policies. Robert Dallek testified in March 2007 on the Presidential Records Act. On August 5, 2007, he published a commentary in the Washington Post, “Ouster By the People,” on removal of the President from office. See
http://www.washingtonpost.com/wp-dyn/content/article/2007/08/03/AR2007080301952.html

As I noted elsewhere earlier this year, the Organization of American Historians urged amendment of the Presidential Records Act at the same time that its members voted on a resolution against the war. Historians are citizens and have as much right as anyone else to speak up for or against a President’s policies. But can someone really be an effective advocate for properly balancing access and confidentiality in archival materials while identifying him or herself strongly and explicitly with opposition to (or support for) a President’s policies? If they were clearly identified as opponents of policies, wouldn’t a President simply dismiss them, as released materials show that Richard Nixon used to, as “not our people?” Isn’t there a kneejerk reaction among most people, regardless of profession or rank, to dismiss or explain away as biased or as unreasonable opponents the people who criticize them most strongly?

Unfortunately, when it comes to the question of how access should be handled so as to ensure a reasonable balance, there is nothing equivalent to the 1970s era public documents commission to examine and balance the perspectives of all the stakeholders.

Submitted from home at 8:37 a.m.

 
At 8:35 AM, Anonymous Maarja Krusten said...

A follow up.

Richard,

I recently had occasion to re-read the Supreme Court’s opinion in Nixon v. Administrator of General Services, available at
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0433_0425_ZO.html

It was striking to me how much the thinking seems to represent a bygone era. The court noted that

“Nor should the American people's ability to reconstruct and come to terms with their history be truncated by an analysis of Presidential privilege that focuses only on the needs of the present. Congress can legitimately act to rectify the hit-or-miss approach that has characterized past attempts to protect these substantial interests by entrusting the materials to expert handling by trusted and disinterested professionals.

Other substantial public interests that led Congress to seek to preserve appellant's materials were the desire to restore public confidence in our political processes by preserving the materials as a source for facilitating a full airing of the events leading to appellant's resignation, and Congress' need to understand how those political processes had in fact operated in order to gauge the necessity for remedial legislation.”

As you know, the Court noted that the Presidential Recordings and Materials Preservation Act (PRMPA) called for “the need to provide the public with the full truth, at the earliest reasonable date, of the abuses of governmental power popularly identified under the generic term ‘Watergate.’”

Drawing on material in the District Court record of Kutler v. Wilson (Civ. A. 92-662-NHJ), I’ve described in several forums geared towards historians the challenges that NARA faced in opening Watergate materials while Nixon still was alive. I’ve noted how Stanley Kutler filed a lawsuit in March 1992 after being informed by NARA that all “integral file segments” relating to Watergate had been released. And that his lawsuit resulted in the revelation that NARA held not only the 63 hours of Watergate tapes once used by the Special Prosecutor and opened to the public in 1991, representing all that had been released as of 1992, but some 201 hours of taped conversations relating to Watergate. The 201 hours were opened late in 1996, two years after Nixon died.

The PRMPA statute and SCOTUS opinion represent some of the few places where revelation of the full truth about a specific governmental matter explicitly is mentioned. But in every historians’ forum where I’ve mentioned NARA’s struggles, the response has been silence. Why do you think that is? Are historians indifferent to such questions (hard to believe but might be the case)? Or is there another explanation? Since I view the Nixon experience as a pivotal test for NARA, I’m interested in why so many of its customers appear to ignore or appear indifferent to what happened with the “full truth” provision of the PRMPA.

Submitted from home at 8:33 am on Thursday

 
At 1:08 PM, Blogger Richard J. Cox said...

Maarja, thanks for your interesting comments. I don't have a solution for better advocacy about the problem with secrecy. I do think the Archivist of the US and NARA ought to be more outspoken about the issue; I think we are past the point of worrying about "balance." SAA does have the strong leadership or resources needed. For my money, I think the profession ought to join forces with groups such as the National Security Archive and other citizen watchdog groups.

 
At 7:10 AM, Anonymous Maarja Krusten said...

A correction and a note

Correction: I believe the vote on a resolution against the war took place among AHA members earlier this year, not within OAH. I don't belong to either organization myself.

Note: As for your comment that the Archivist of the U.S. should be more outspoken on the issue of secrecy, having been an employee and later observer of NARA for several decades, I don't think that is going to happen. Remember how David Corn noted on April 4, 1994, of NARA that some issues boiled "over onto the pages of the right-wing Washington Times, which has carried blistering
articles on acting archivist Trudy Peterson."

I was a regular reader of the Washington Times in 1994 and I was shocked by the stance it took towards Dr. Peterson and archival issues relating to Ronald Reagan's records. Unfortunately, when I sent in a letter to the editor explaining that a stance taken by NARA towards a Republican former President's papers also will apply to a Democratic former President's records, the newspaper declined to publish it.

As a former NARA employee, I do think it is possible to discuss some of the issues involving access in an objective, nonpartisan fashion. But I can't imagine that the experience in 1994 with the criticism voiced by the Washington Times would encourage current NARA officials to stick their necks out. And I take the fact that former officials also are so quiet on such issues as a sign of how difficult are the challenges NARA faces. Of course, people also may have differing views on whether one always should take a stance that "all is well, things are going great" or admit at times, "there are some difficult challenges." I happen to believe you actually signal more effectively that you're in a position to work to resolve issues if you take the latter stance instead of unfailingly painting a rosy picture, which can imply that you're not allowed to say anything else. One can learn a lot by parsing public statements, actually.

Submitted from home at 7:07 a.m. Friday

 
At 10:30 AM, Anonymous Maarja Krusten said...

Richard,

I hope you will post the comment I submitted on Friday morning at 7:07, in which I noted that the resolution against the war may have been the subject of a vote among members of AHA, not OAH. I don't belong to either organization.

I also noted in that comment the potential effect on NARA of what the Washington Times published in 1994 in terms of articles, op eds, and a letter to the editor of a Presidential foundation regarding Acting U.S. Trudy Peterson and reported disputes within NARA over access to President Reagan's papers. The Washington Times supported on its editorial page in 1994 those officials at NARA whom it described in an article as being "strong proponents of limited access philosophy."

Therein lies a tricky situation both for NARA and for SAA. Not all archivists have the same position on access. Some people who subscribe to the Archives List appear to believe that early disclosure of information may not be desirable, that you get a richer record and less chilling effect if if you take it slow on access. (The traditional approach to releasing records at donor-restricted Presidential Libraries was to release the most innocuous material first and to wait to tackle the most controvesial.) Others argue for quick access to information. I tend to think that is one reason why organizations such as SAA have not worked more closely with what you refer to as watchdog groups. But there might be other reasons, also. I'm just guessing here.

Submitted on Sunday morning at 10:20 am.

 
At 6:42 PM, Blogger Richard J. Cox said...

Thanks again for the comments. I have heard for years from some archivists the fear that open access would diminish the creation of the documentary heritage that is created. I always have viewed such arguments as rubbish. Besides, I am more concerned as a citizen that our officials are held accountable than as an archivist that we have documents detailing all the misdeeds, open 50 or 100 years later. I believe we can create strong laws and enforcement that ensures this and I believe that the function of accountability is as critical to the archival mission as anything else that we do.

 

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