Control of Information
CIA Openness Task Force
excerpted from the book
The CIA's War at Home
by Angus Mackenzie
University of California Press, 1997, paper
Control of Information
The government employees lawsuit against the secrecy contracts
was heard in federal court in Washington, D.C. Judge Oliver Gasch,
a conservative, presided. The plaintiffs, including several members
of Congress as well as the federal employee unions, took the position
that the executive branch was acting in defiance of a congressional
ban on Form I89 and Form 4I93. The Reagan administration, in turn,
held that the ban was an unconstitutional abridgment of the powers
of the commander in chief, arguing on the grounds that the president
has sovereign rights to control national security information.
Lawyers for the plaintiffs disputed those grounds. They noted
that the Constitution recognizes the occasional need for legislative
secrecy and permits Congress to meet in secrecy, but they pointed
out that it fails in plain language to mention any secrecy power
of the executive. There exists a general legal principle that
says, in essence, if a law expressly grants powers to one but
not to others, then the omission is presumed as intentional.
Judge Gasch ruled in favor of the Reagan administration, although
he could find little constitutional basis for the theory of executive
primacy. Indeed, Gasch acknowledged that "[n]either political
branch is expressly charged by the Constitution with regulation,
accumulation of, or access to, national security information."
Nonetheless, relying on English common law, he found that Congress
had unconstitutionally violated the president's "sovereign
prerogative" to preserve secrets. To posit the existence
of a "sovereign prerogative" in a republic such as the
United States was strange. The basis of a republic, as distinguished
from a monarchy, is that all citizens have equal status before
the law, while the notion of sovereignty grants a superlative
power to one individual. Nevertheless, Gasch decided that constitutionally
the president's secrecy powers were contained, by inference, in
his command of the armed forces. Gasch further ruled that the
proper role of Congress was to be a supporter of executive secrecy,
to "facilitate secrecy with appropriate criminal and civil
Gasch did allow that perhaps there was a problem with the
excessively broad term "classifiable" used in Form I89.
But by the time of Gasch's decision, Steven Garfinkel had written
a new definition of "classifiable" as "unmarked
classified information . . . in the process of a classification
determination." This revision seemed to satisfy Gasch.
Gasch's decision was appealed directly to the U.S. Supreme
Meanwhile, Congress passed yet another ban on the spread of
secrecy contracts as part of another appropriations bill. Reagan,
placed in the same political box as before, signed the bill into
law on September 23, I988, even while denouncing the ban. He charged
that it "raises profound constitutional concerns" and
"interferes with my ability to prevent unauthorized disclosures
of our most sensitive diplomatic, military, and intelligence activities."
The general impression was that the spread of censorship again
had been outlawed. "People will get the impression . . .
that it's ended, yes," Garfinkel observed. However, in his
signing statement, Reagan ordered: "In accordance with my
sworn obligation to preserve, protect and defend the Constitution,
[the ban] will be considered of no force or effect unless and
until the ruling of the district court is reversed by the Supreme
Seven days later, Garfinkel replaced Standard Form I89 with
Standard Form 3I2, from which he had removed the catchall term
"classifiable." He sent the new form to more than fifty
agency chiefs for circulation to employees. Fitzgerald waited
on edge, expecting the worst. If the Supreme Court upheld the
Gasch decision, Fitzgerald might be fired.
On November ,, I988, George Bush won the presidential election.
As CIA director in I976, he had been a strong advocate of spreading
secrecy agreements, and he became the first president-elect in
history to require his transition team to sign secrecy contracts.
On April I8, I989, Chief Justice William H. Rehnquist delivered
the Supreme Court's ruling on the Gasch decision. Gasch was ordered
to reconsider the case. Rehnquist stated, "We emphasize that
the District Court should not pronounce upon the relative constitutional
authority of Congress and the Executive Branch unless it finds
it imperative to do so." Rehnquist was sidestepping the issue,
preferring to keep the courts out of a fight that might never
be settled permanently.
In the fall of I989, Congress again legislated limits on the
secrecy contracts with a rider to another appropriations measure.
President Bush signed it on November 3, I989, but, as Reagan had
done, he instructed his subordinates to ignore the law. Bush's
signing statement, which received little notice, read:
I am compelled to note my strong objection to section 6I8,
. . . which purports to forbid the implementation or enforcement
of certain nondisclosure agreements required of government employees
with access to classified information. This provision . . . raises
profound constitutional concerns.... Article II of the Constitution
confers responsibility on me as President and Commander in Chief
to conduct the national defense and foreign affairs of the United
States. In this capacity, I have the constitutional duty to ensure
the secrecy of information whose disclosure would threaten our
national security.... Furthermore, section 6I8 could suggest that
I am prohibited from establishing and enforcing appropriate procedures
to control the dissemination of classified information by executive
branch employees to Members of Congress.
Here was the crux of the matter-the executive branch sought
the control of information going to Congress.
"I believe," Bush continued, "that section
6I8, thus construed, would jeopardize the nation's security by
unconstitutionally interfering with my ability to prevent the
unauthorized disclosure of information concerning our most sensitive
diplomatic, military, and intelligence activities." Thus
he "direct[ed] that executive branch officials implement
the provisions of section 6I8 in a manner consistent with the
Constitution." In essence, Bush was ordering that the law
"We're still in business," Garfinkel said. He kept
pressuring agencies to distribute the new Form 3I2. With Bush
as president, Garfinkel's Information Security Oversight Office
headquarters was moved out of the sixth floor of the General Services
building to a fancier address closer to the White House. According
to Garfinkel, this move was intended to signal the increased importance
of information security.
In his Pentagon office, meanwhile, Fitzgerald kept refusing
to sign the new secrecy contract. No one, however, cared to press
Fitzgerald any longer, for he had achieved celebrity status in
Washington. During an interview Garfinkel threw up his hands at
a question about Fitzgerald, as if to say, "I don't ever
want to hear about Ernie Fitzgerald again, and I don't want to
know if he does not sign a secrecy contract.
With Gasch's decision remanded back to his court, lawyers
began trying to negotiate a settlement between Congress and the
Bush administration over the secrecy oaths. From the point of
view of the congressional lawyers, it was one thing for the executive
to say to a civil servant, "You can't disclose to the public,"
but quite another to say, "You can't disclose to Congress."
Bush's lawyers were also willing to make the same distinction.
Garfinkel would amend the secrecy contracts to protect government
employees who inform Congress. In January I99I, he added to Form
3I2 the sections from the Whistleblower Protection Act that protect
those who disclose waste, fraud, and abuse to Congress.
The congressional right to know had been steadily eroded during
the previous two decades, and, given a political climate in which
the executive branch was still in the ascendancy, Congress was
satisfied with this small victory. The compromise essentially
ended congressional resistance to the secrecy contracts.
Congress has many arcane rules designed to control information,
many in conflict with one another. Historically, Congress could
and did release information, classified or not, as a branch of
government equal to the executive. Up until I976, even the CIA
recognized the power of Congress to declassify information, according
to an internal Agency memorandum that has never been made public.
The turning point came when the House Select Committee on Intelligence
(usually referred to as the Pike Committee for its chairman, Congressman
Otis Pike of New York) issued a report on the CIA so scathing
that the House voted to seal it. In January I976, John D. Morrison
Jr., the CIA deputy general counsel, analyzed the report and
discovered to his delight a crucial assertion: "no one in
Congress can declassify." To the CIA, this was news. In a
memo, Morrison pointedly remarked, We shall cherish this latter
statement against interest and use it as precedent, so do not
say anything to make them [the committee] reconsider it."
It is a particular irony that the Pike Committee, while it criticized
the CIA and fought for access to CIA documents, inadvertently
contributed to surrendering the congressional right to disclose
secrets of the executive branch.
From that point on, Congress continued to lose control of
executive information. The next setback was in the traditional
right for each and every member of Congress to have complete and
equal access to all information in the custody of any congressional
committee. In practical terms, this meant when a member was concerned
with, say, the overthrow of a government in Chile, the member
could inspect the classified testimony of the CIA director delivered
in executive session of the intelligence committee and engage
in political debate, through correspondence with fellow members
about it. However, on July I4, I977, when Stansfield Turner was
CIA director, the House consolidated CIA oversight in the House
Permanent Select Committee on Intelligence and set up a special
House rule creating a five-day waiting period before classified
information can be disclosed to the public. The rule gave the
president time to indulge in arm twisting, thus preventing the
vast majority of secrets from ever being released. Another rule
restricted the sharing of such information with another member
of Congress. By limiting debate among members of Congress, these
rules amounted to an erosion of the basic autonomy of Congress
in favor of executive power.
In I987 Congress imposed upon itself the requirement that
the House and Senate, in consultation with the CIA director, "shall
each establish, by rule or resolution, procedures to protect from
unauthorized disclosure all classified information and all information
relating to intelligence sources and methods furnished to the
intelligence committees." Thus, Congress accepted the president's
right to deter- ~ mine unilaterally what must be kept secret from
CIA Openness Task Force
On January I7, I99I, Senator Moynihan made a metaphorical
point about the ending of the cold war by introducing a bill that
would have abolished the CIA and transferred its functions to
the Department of State. Before the collapse of the Soviet Union,
only the former editor of CourlterSpy magazine had dared to suggest
such an idea. Moynihan's bill, S. 236, also proposed that intelligence
budgets be published. While the abolition of the CIA was not taken
as a serious threat, the prospect that budgets might be drastically
cut back struck terror into the heart of the bureaucracy. The
leadership of the CIA was put on notice that they had to find
new reasons to justify the Agency's rarefied governmental powers.
In May I99I, President Bush nominated Robert M. Gates to replace
William Webster as CIA director. Gates had specialized in Soviet
affairs as a career intelligence analyst. In September, during
Gates's contentious confirmation hearings before the Senate Select
Committee on Intelligence, Melvin A. Goodman appeared as a witness.
Goodman, a former CIA division chief in Soviet foreign policy,
testified that Gates had, over a period of years as deputy director
of the CIA, given Congress and the president misleading and politicized
intelligence. "Gates's role," he said, "was to
corrupt the process and the ethics of intelligence . . . [and]
to ignore and suppress signs of the Soviet strategic retreat."
Other witnesses at the hearings accused Gates of having shaped
intelligence reports during I986 in a manner that supported the
U.S. sale of arms to Iran.
This damning testimony undercut Gates's chances of confirmation.
Fighting to gain favor and to show that he understood the changing
times, Gates pledged to the committee that if approved as director
he would run a more open CIA. The committee was persuaded by his
promise and voted in favor of his confirmation.
After Gates was sworn in, he sent a memorandum on November
I8, I99I, to his director of public affairs, Joseph DeTrani, setting
up the CIA Openness Task Force. Its purpose was to continue "improving
accessibility to information about [the] CIA by the public and
overall openness to the extent possible" (the operative words
being "to the extent possible"). DeTrani was ordered
to explore how the CIA could improve "openness" and
"accessibility" through use of the news media and by
expanding relations with universities. A report was due in a month.
DeTrani's task force came up with twenty-one recommendations
to counter the growing impression that the CIA and secrecy itself
had become anachronisms. The principal recommendation called for
a public relations campaign directed at members of the general
public. Rather than take any substantive steps toward reform,
the idea was to do a better job of selling the mystique of the
CIA. "There was substantial agreement," the report said,
"that we need to make the institution and the process more
visible and understandable rather than strive for openness on
specific substantive issues."
For Gates, the point was to use the so-called openness public
relations campaign to answer critics who wanted big reductions
in the congressional intelligence community appropriation (estimated
to be about $30 billion annually). For DeTrani, the point was
the same, except on a smaller scale. He was facing a cut of 33
percent in the CIA public affairs office. In his report DeTrani
stressed, "We recognize that a program of increased openness
will require commitment of additional resources, not only for
[the public affairs office] but for other parts of the Agency."
Gates and DeTrani proved the Washington cliché: the first
concern of a bureaucrat is to preserve his budget.
DeTrani recommended that the CIA engage in a broad program
to influence U.S. academia, forgetting the scandal over the CIA
use of the National Student Association in the I960s. The CIA
Editorial Board had identified hundreds of CIA-authored articles,
and DeTrani suggested that scholars connected with journals and
editors at university presses could be pushed to publish them.
In addition, he noted that the Agency had a wide range of contacts
with academics through recruiting, professional societies, and
contractual arrangements, which he thought could be expanded.
The CIA, he proposed, could become an institutional member of
scientific and professional societies and could sponsor more academic
conferences and seminars, even bringing scholars to study at Langley.
Furthermore, DeTrani wished to expand the CIA officer-in-residence
program, which currently had thirteen CIA officers at universities,
each provided with about $100,000 This entire recommendation,
of course, flew in the face of the lessons supposedly learned
after the Pike Committee severely criticized the CIA in the I970s
for trying to manipulate public opinion through academia.
The Pike Committee also had rebuked the Agency for manipulating
the U.S. media. News organizations, domestic and international,
had been scandalized to discover that the CIA employed more than
four hundred journalists as spies. Now DeTrani was recommending
"a strategy for expanding our work with the media as a means
of reaching an even broader audience." It was a suggestion
remarkable in its brazenness-and clever as well. DeTrani wanted
the CIA to declassify certain files about historical events in
order to put the Agency in a more positive light. By assisting
journalists, "intelligence failure" stories could be
turned into "intelligence success" stories, he argued,
and he boasted about past triumphs with the news media: "In
many instances, we have persuaded reporters to postpone, change,
hold, or even scrap stories that could have adversely affected
national security interests or jeopardized sources and methods."
DeTrani also wanted to work with filmmakers on "accuracy"
and "authenticity" and to help friendly Hollywood directors
by allowing them to shoot movies at CIA headquarters. Along the
same lines he wanted to cooperate with feature writers to "personalize
the world of intelligence in broad circulation newspapers or magazines."
Other propaganda could be aimed directly at the public. Unclassified
versions of the Agency's Studies in Intelligence could be sold,
and CIA officers could step up their number of speeches to civic
and service dubs, mainly Rotary and Kiwanis. A CIA speakers bureau
already had been established in I990.
In addition, DeTrani had a full set of recommendations for
working more closely with new members of Congress, as well as
staffers on Capitol Hill and at congressional agencies, such as
the Congressional Research Service and the Office of Technological
Assessment. Basically, the plan was to take them into the Agency's
confidence in attempts to convince them of the CIA's worth, a
rather cynical process of co-optation in which spies befriend
and manipulate their targets. This technique is a specialty of
espionage agents. For the average outsider, being taken into the
CIA's confidence can be breathtaking.
The public release of the Openness Task Force report was scheduled
for April Fool's Day I992-with the last four inches of DeTrani's
report to be blacked out. But the report was made public after
its secrecy had become an embarrassment to the CIA. A New York
Times reporter, Elaine Sciolino, revealed its existence on January
I2, I992. During the following week, DeTrani called it an "internal
advisory document that [could not] go outside the Agency,"
classified secret. On January I4, DeTrani said he would keep the
Openness Task Force report secret until Gates issued his orders
based upon it. However, Director Gates had already dispatched
those orders for the domestic propaganda operation ten days earlier,
on January 6, to his deputy directors: they covered five pages.
Gates accepted DeTrani's primary recommendation-the CIA should
improve and update its image without changing its fundamental
character. Gates stated, "I believe that CIA, whatever the
level of its public affairs effort, will find it difficult to
win recognition as an 'open' institution." In other words,
the Agency should give out information that makes it look good
and, as usual, keep the rest secret. While ordering new cooperation
with the news media, Gates cautioned that the CIA would not be
pressured into changing its approach to secrets. The only incentive
for cooperating with journalists, Gates said, was to enhance "the
broader Agency programs."
Gates wanted the CIA to conduct carefully controlled background
briefings of selected reporters who could be relied upon to deliver
the CIA message without the public being able to discern precisely
the source. Gates also took up DeTrani on his suggestion to persuade
friendly journalists to write profiles of CIA officers, although
he insisted that meticulous records be kept of such contacts.
Such records would, of course, assist the Agency's Unauthorized
Disclosures Analysis Center agents in combating news leaks. Gates
refused DeTrani permission to appear more often on television
but instead assigned extra television time for himself He was
to be the CIA's premier salesman, and everyone else was to fall
in behind him. "All of us in the Agency simply should keep
our eyes and ears open for feedback, from whatever quarter, on
the success of our efforts," Gates directed.
In addition to media operations, Gates approved direct CIA
propagandizing of the general population through the circulation
of press releases detailing the Agency's history, mission, and
functions in light of the new world order. "The Agency's
briefing program for the full range of potential audiences should
be expanded as opportunities arise," Gates ordered. He approved
CIA officers joining scientific and professional societies and
urged that operations on American college campuses be expanded
by setting up intelligence studies programs and finding universities
to publish CIA material. Scholars would also be encouraged to
publish CIA-subsidized articles in the United States. Gates also
established a program to bring chief executive officers of corporations
to Langley for a day, beginning with CEOs already cooperating
with the Agency. Under a similar program, members of the media
with influential voices-including even Norman Mailer-were to be
invited to speak with CIA groups.
Regarding the release of documents, Gates ordered a review
of historical and FOIA records, "with a view to accelerating
the process [of release]." However, Gates's orders made it
plain that CIA "openness" did not mean the lessening
of secrecy. "Openness" meant adopting a well-crafted
public relations scheme aimed at the most important opinion makers
in the nation.
Gates's assessment that the CIA had a public relations problem
was proved later in January. The news commentator with the largest
audience in the United States, 60 Minutes sage Andy Rooney, blasted
the CIA in his syndicated newspaper column printed January 26,
I992. It was headlined by the San Francisco Sunday newspaper "A
Lack of Intelligence: Fire the Spies." Rooney wrote, "If
they cut the $30 billion [sic] Central Intelligence Agency budget
tomorrow by 75 percent, it wouldn't be a month too soon."
He said, "When the CIA is questioned about anything, they
have a standard answer: 'That's a secret that would compromise
the security of the United States."
- The CIA's War at Home