Freedom of Information Act; Unlocking Uncle Sam's secrets
San Francisco — Archaeologists make a business of digging in ancient rubbish heaps for stone tools, arrowheads, or odd bits of pottery that open windows on old cultures. In the same way, contemporary historians are sifting through government records hunting for a phone message, interoffice memo, or doodle that might illuminate that modern subterranean culture called "the bureaucracy."
While the ancients had neither knack nor interest in hiding from the prying eyes of posterity, federal agencies have both. The government is notorious for covering its tracks -- and documents -- with rubber stamps marked "CLASSIFIED." Until recently, scholars trying to unearth records of the post- World War II period from agency files have found themselves vainly clawing at this "buried history."
Now they have a sophisticated new tool to dig with -- the 1966 Freedom of Information Act (FOIA) with the strengthening amendments of 1974 and 1976. With it, researchers have already dug up important information on some Central Intelligence Agency activities such as: spying on Martin Luther King Jr. and other United States citizens; experiments with mind-control drugs in the '50s and '60s that killed at least two Americans (Project MK-Ultra); Project Resistance, in conjunction with the Federal Bureau of Investigation's controversial COINTELPRO program to infiltrate, discredit, and disrupt the antiwar and other radical movements; covert actions in Chile; the agency's relations with journalists, academics, and local police departments; and its attempt to keep the story of the Glomar Explorer (the attempt to salvage a sunken Soviet submarine) out of the press.
The Freedom of Information Act has also helped to uncover the dangers of Agent Orange to the health of Vietnam war veterans, and the hazards of low-level radiation to communities near nuclear testing sites.
Publishing houses and university presses alike are cranking out volume after volume based on government documents declassified through the FOIA. Among the most notable books are: Allen Weinstein's "Perjury: The Hiss- Chambers Case"; PEter Wyden's "Bay of Pigs: the Untold Story"; and William Shawcross's "Sideshow: Kissinger, Nixon and the Destruction of Cambodia."
A few months ago, a Columbia history professor, Sigmund Diamond, published an account in The Nation magazine of the FBI's presence on the Yale campus in the ' 40s. The article, which has caused quite a stir in New Haven and throughout academia, centered on FBI records to which Diamond gained access through the FOIA.
"Most of the bits of information we turn up under the act don't make headlines," says Barton Bernstein, a Stanford history professor who has gotten hundreds of government documents declassified. Over the last several years Bernstein has used the information to publish articles reinterpreting the Korean war, the Bay of Pigs, the Cuban missile crisis, and the decision to drop the atomic bomb. Last year he made public that at least 11, and perhaps more than 20, American POWs in Hiroshima were killed when the A-bomb was detonated -- a fact the government had kept secret for decades.
"In isolation, the documents are not usually dramatic but they do help fill in the web of history and have strength in their collectivity," Bernstein says. "For anyone working in the history of foreign and domestic policy in the postwar period, the act is essential."
At the moment, scholars like Bernstein are seriously concerned that their new research tool is about to be blunted.
With the Soviet invasion of Afghanistan, Iran's taking of US hostages, and Cold War II looming on the horizon, congressional support for the Freedom of Information Act is eroding. The act has come under specific attack from the CIA , which claims it cannot properly function as an intelligence service under disclosure laws applied to the rest of government. In an attempt to strengthen the CIA -- whose wings were severely trimmed after Watergate -- the Carter administration has been pushing for a new CIA charter which, among other things, would grant the agency broad exemptions from disclosure requirements of the FOIA.
Last February, Frank C. Carlucci, deputy director of the CIA, told Congress: "The Freedom of Information act . . . has emerged as the focal point of the often-heard allegation that the CIA cannot keep a secret . . . it is virtually impossible for most of our agents and sources [in foreign countries] . . . to understand the law itself, much less why an organization such as the Central Intelligence Agency . . . should be subject to the act."
When asked by the Monitor how the CIA's sources and methods had been endangered by the act, the agency's general counsel, Daniel Silver, responded: "Classified information has been disclosed through the FOIA as a result of our own mistakes . . . and I am convinced that FOIA litigation has harmed the agency in rather subtle ways. We have not released . . . headline secrets, but have painted a picture that would have been better left unsaid."
Scholars championing the fight against CIA exemptions are quick to point out that the agency has made an about-face since 1978, when John Blake, the career CIA officer in charge of FOIA requests, told the Senate Judiciary Committee that with respect to the act: "We have been able to make the necessary adjustments. I am pleased to report that, in fact, I think that the agency is better off for it."
Because of election-year campaigning and an already overloaded legislative calendar, it is unlikely Congress will act this session on CIA charter legislation. Meanwhile, the academic community continues to mobilize its troops. Earlier this year, the Organization of American Historians (OAH), the American Historical Association, Historians for Freedom of Information,and some 150 other organizations and individuals, ranging from Common Cause to the National Indian Youth Council, sent letters to Congress protesting CIA exemptions that would, they said, "damage serious historical and journalistic research and the conduct of informed debate."
William Appleman Williams, a diplomatic historian at Oregon State University and the new president of the OAH, said the CIA exemptions from disclosure would "close down serious scholarship in recent contemporary history."
In May, Lloyd Garson, a history professor at Rutgers, told the House Government Operations Subcommittee on Government Information and Individuals Rigths: "The post-Vietnam backlash against declassification and against FOIA can only remind the historian of days when kings banished prophets who displeased them, and sent messengers bearing bad news to oblivion."
While it is unlikely the Freedom of Information Act will be banished to oblivion, historians -- looking at the past, as good historians should -- draw little comfort from Congress's record on this matter.
"It took Congress 170 years -- that is, 85 Congresses of six full professorial careers -- to pass [FOIA] legislation against the bureaucratic tendencies to withhold records," says William Preston, chairman of the history department at John Jay College. "That is not a tradition of access. It's the youngest and perhaps most precarious right that has been estalished."
Precarious though it may be, the basic structure of the FOIA is breathtaking and revolutionary. It says, essentially, that any person is entitled to see any government agency record unless the government proves it comes within one of nine specified exemptions such as national security or privacy. Beyond that, the acts gets rather complicated and raises a host of questions that have kept the legal profession hopping since the act's passage.
What is an agency? It is not Congress or the courts; it ism an executive department or military department. It includes independent regulatory bodies such as the Federal Communications Commission and the National Labor RElations Board and government controlled and financed corporations like the Tennessee Valley Authority. The act exludes the president's immediate staff whose sole function is to advise the president, but it includes those in the White House and executive offices who perform other ministerial duties.
The Supreme Court recently ruled that the press was not entitled to see notes made by Henry Kissinger while he was assistant to the President for national-security affairs, though when he switched hats and took on the additional task of secretary of state he became covered by the FOIA.
What is a record? A record is defined as anything that contains information, usually in writing. Though FOIA users normally request documents, computer tapes and printouts are also fair game. A recent request for the weapon used in the assassination of President Kennedy was denied on the grounds that it was not a "record." You can get a description of the gun, but not the gun.
Who can make a request? The statute applies to "any person," which includes any US citizen or, for that matter, any foreign citizen or spy. Under the act, you do not have to show a need for the document. In fact, why you want the document is generally of no concern to the agency or the courts.
Need ism relevant in some cases, however. If you are able to show that your request is in the public interest, you may (1) pursuade an agency to release information even if it is covered by an exemption, (2) get a fee waiver of the charges for search and copying fees, or (3) obtain attorney's fees provided for in the act or obtain free counsel from public-interest groups like the American Civil Liberties Union, Center for National Security Studies, or Ralph Nader's Public Citizen organization.
In theory, the burden of proof falls upon the government to prove that records withheld from historians fall within one of the nine FOIA exemptions. In practice, scholars say, the government agencies always have the upper hand.
"It doesn't seem to me yet to be a fair fight," Professor Preston says. "When you stack up the entrenched bureaucratic habits, the mania for classification, the growth of secrecy, the passion for exemption, the sheer bulk of the records, the fees and delays, and the courts' reluctance to challenge and review agency discretion, when the historian is up against all of that he begins to look like Custer at the Battle of Little Big Horn."
The most common complaints among historians are:
DEstruciton of documents. In the name of "administrative housekeeping," agencies destroy records that may be historically significant. recently, the American Friends Service Committee, along with Historians for Freedom of Information, The Nation magazine, and some 40 other plaintiffs won a federal injunction to stop the FBI's destruction of its field files. Judge Harold H. Greene, of US District Court in Washington, D.C., gave the FBI and the National Archives until January 1981 to devise a system of evaluating the historical value of records before disposing of them. The judge ruled that the Archives had failed for the last 30 years to carry out its legal responsibility because it had approved FBI requests to destroy records without ever sampling those files. One National Archives official explains, "We never had the clout of go in and tell the director of the FBI, 'Show us your records!' Judge Greene's decision gives us that clout."
Overclassification. Within the government are some 40,000 officials with the power to classify information, says Preston, who estimates that disclosure of most of the 1 billion classified federal documents would pose no danger to national security. Historians say the general rule of thumb among bureaucrats passing judgement on FOIA requests seems to be: "While there is some risk in making the information available, there is no risk in denying the request." Says Stanford's Bernstein: "There's no incentive for agency people to declassify because there are no penalties for erring on the side of security and excessive caution. Scholars have very little influence, and the agencies know universities are not likely to file suit on their behalves."
Mutilation. Before government agencies release documents, they are "sanitized." Sensitive material is deleted, often to the extent that scholars have received entire pages censored, save a few harmless conjunctions. "What do you do when you get a mutilated record that looks like a J. Edgar Hoover inkblot test?" Dr. Preston asks.
Discovery and indentification. Scholars are caught in the Catch-22 of having to know a document exists before they can request it. If you don't do a good job of defining the document, the agency is apt to respond: "Sorry, we don't have it as you've described." Furthermore, files are not always labeled as researchers might expect. For example, numerous requests to the FBI for civil rights material delivered nothing because the material had been filed under "National Security." To complicate matters, some agencies, like the FBI, have files to "blind memos" (identifying neither the sender nor the receipient) and "Do Not File" Files.
"Woe betide the FOI requester who attempts to fish in the CIA's waters if he or she doesn't know precisely the name, rank, and serial number of the quarry they seek, especially if that quarry might lead to something the agency prefers to keep from public view," says William Corson, who spent 26 years as a career marine in a wide variety of operations and staff intelligence assignments at the Department of Defense. He is the author of a recent book, "Armies of Ignorance: The Rise of the American Intelligence Empire."
Delays. The agencies say that FOIA requests are time- consuming and costly. The CIA's Carlucci estimates his agency receives daily an average of 18 information requests (FOIA, Privacy Act, and Executive Order 12065) which cost about $900 each to process. The CIA's backlog in February was over 2,700 unanswered requests, "and increasing." Denials and delays by agencies, historians agree, are more likely the result of "administrative lethargy" and the "chaos of inefficiency" than "lurking malevolence." The agencies' heavy caseloads mean "quick successes are rare," says Bernstein. "Despite statutory requirements that agencies respond promtly, I have cases that have gone on three years and more."
Falsification. Once a document has been declassified, the scholar is faced with the problem of evaluating the accuracy of the information. Numerous US citizens, most recently civil rights leader Roy Wilkins, have found falsely incriminating reports in their files at the FBI. Historians are also aware that the declassification of documents is often politically motivated by agency officials who wish to discredit or embarrass their predecessor by "leaking" damaging information through an FOIA request. A number of scholars speculate that William Shawcross was given access to such rich classified documents for his book on the secret bombing of Cambodia because Zbigniew Brzezinski, assistant to the President for national-security affairs, and others in the Carter administration wanted to make Henry Kissinger look bad.
At the moment, scholars are not unanimous in support of the Freedom of Information Act. Recently, American historians using the act have come under attack from other members of their profession for writing of "instant history." "Why do you need access to the material so soon?" the critics ask. "Why not just wait until it finds its way to the National Archives? Ought historians to be testifying before Congress and getting tangled in the thicket of politics?" they ask.
Academics defending the act offer the counterargument: Historians need it to check the accuracy of the "official histories" being written by agency insiders or favored scholars. The act ensures "equality of access": Once a researcher gets a set of documents declassified, the information is available to all of his peers. And finally, through the FOIA, historians are able to act as watchdogs on agencies that may be destroying documents of use to future historians. "Trusting the agencies not to destroy historically important material is putting the safety of these irreplaceable documents in the hands of people who simply are not qualified to make historical judgments," says Columbia Prof. Harold Fruchtbaum, secretary of Historians for Freedom of Information. "Unless historians get involved now, future generations may look back on us and say those early historians didn't do their job to preserve the national heritage."
Many historians like Preston and Fruchtbaum not only want to preserve the FOIA, but to extend it. Some are now pressing state legislatures to adopt legislation granting access to the records of state government. Other call for criminal sanctions against federal administrators who willfully delay and frustrate disclosure. Preston suggested at the recent Organization of American Historians meeting in San Francisco that any agency planning to destroy records be required to submit an "information impact statement" assessing "the effect on the public and on historians trying to understand past government policies."
In the final analysis, even with the FOIA, the task of digging out the nation's "buried history" from federal agencies continues to try the patience of the most sedulous scholars. Says Professor Bernstein: "When Andre Gide was asked, 'Who was France's greatest poet? he said, 'Victor Hugo, alas.' If I were asked for the best way of getting documents from the government, I guess I'd have to say, "The Freedom of Information Act, alas.' It's the best we have."