J. William Leonard, the former head of classification procedures for the government under President George W. Bush, was settling into his new life in St. Mary's County, Maryland, after his retirement in late 2007. He planned to teach political science at a small liberal-arts college and tend his garden, leaving behind the world of government and classified documents. But several months later, he came across a news story about an Office of Legal Counsel memo that had been classified for national-security reasons and only recently released. Leonard turned on his home computer and downloaded the memo, an 81-page document about interrogation policy that assistant attorney general John Yoo had written in March 2003. The memo had no information that would endanger national security. Instead, it was a legal defense of harsh interrogations. "You know, I guess 'angered me' would be the appropriate phrase," Leonard says describing his reaction. The memo had been withheld, he says, to shield the document from military lawyers who opposed the interrogation methods.
He went out to his garden after reading the memo. "I was weeding and saying, 'I got to do something,'" he says. "I got lots of weeds, so I was doing a lot of muttering." Several months later, Leonard, who worked for the government for 34 years, testified at a Senate Judiciary Constitution Subcommittee hearing that the memo was one of the "worst abuses of the classification process" he had ever seen.
Declassification, at its most basic level, provides the raw material that historians, students, journalists, and all Americans need to understand the nation's past. The process is far more than a formality; it is crucial to learning the truth about everything from Bush's decision-making to the Kennedy assassination to Gulf War syndrome. Each administration's policies -- its stance on classification of its own information and declassification of historical documents -- demonstrate whether it intends to close off or open up history.
On President Barack Obama's first day in office, he spoke about the importance of "transparency and the rule of law." In addition, he signed several executive orders that set out new guidelines for a clear and open government, including one that requires the president to seek advice from the solicitor general about the classification of documents. He is not the first chief executive officer to pledge transparency. Bill Clinton was reluctant to disclose certain things (such as the details of his Whitewater real-estate deals), but overall he was a leader in the movement toward the declassification of documents. When the National Archives conducted an audit in 2006, researchers found that 1 billion pages of documents had been released in the years since 1995, a fourfold increase over the previous decade and a half.
The Bush administration, however, was notoriously withholding. And it wasn't just historical classified documents that the administration kept under wraps. In Bush's first term, he held only 17 solo question-and-answer sessions with reporters -- the fewest of any president in the television age. Former Vice President Dick Cheney even bragged about the fact that he kept few notes and planned to leave no paper trail.
With Bush gone, transparency advocates are wondering how much Obama will fight to expose decisions made by Bush -- and by previous presidents. And how much will he be willing to open up his own government?
In some cases, we know which documents are classified -- we just don't know exactly what they say. It is no longer a secret that Bush issued a directive allowing the creation of secret prisons overseas -- we know the sites were built -- but the written authorization for these sites has not been released. Also classified are dozens of photographs that reportedly show Americans abusing prisoners at detention sites other than Abu Ghraib. That's just scratching the surface.
Jameel Jaffer, director of the American Civil Liberty Union's national-security project, and other attorneys have filed lawsuits to obtain the memos, images, and documents. So far, Jaffer has been unsuccessful in these cases. And not because of security concerns. The reason, he says, is simple: "We think the memos are being withheld not for security reasons but to insulate the officials for possible criminal liability," he says. Much like the interrogation policy that had Leonard muttering angrily in his garden.
In many of these cases, administration officials have used a "state-secrets defense," in which the government claims the information would endanger national security, even though the documents reveal little or nothing to that end. It has proved a highly effective strategy for quashing lawsuits and public debate over the documents. For lawyers like Jaffer, this is galling. Even the most enthusiastic advocates of transparency, however, agree that there are legitimate claims to the state-secrets defense. Certain documents should be withheld to protect Americans from attack or, for example, to keep military strategies secret, especially during times of war. The problem is that classification can be abused.
Obama has shown publicly that he is not eager to prosecute former members of the Bush administration for alleged criminal acts. On ABC's This Week, on Jan. 11, 2009, George Stephanopoulos asked Obama whether or not he would pursue an investigation of crimes committed by Bush administration officials, "including torture and warrantless wiretapping." Instead of describing a path toward prosecution, Obama said, "We need to look forward as opposed to looking backward."
Yet even if he does not want to hold individuals accountable, there are reasons to release the documents. "I see these as two separate issues," Leonard says. Getting a hold of the documents might not lead to criminal prosecution, but the papers would allow people to see where the classification process has been misused and would perhaps help prevent over-classification from happening in the future.
George Bush and Dick Cheney are certainly not the only officials who have hidden documents for the wrong reasons. In fact, there is a 50 percent total over-classification rate, according to former Deputy Under Secretary of Defense for Counterintelligence and Security Carol A. Haave. In some cases, government employees who are responsible for determining whether or not a document should be made public err on the side of caution and prevent its release -- though the document may, in fact, be eligible for declassification.
"The deeper problem is when you create within an agency a culture of secrecy, such as at the CIA and FBI, it's virtually impossible to get them to change that culture and to cough things up," says G. Robert Blakey, a law professor at the University of Notre Dame Law School who served as chief counsel to a 1979 House committee investigating the Kennedy assassination. "The ultimate thing is power. It's to have control. This is the underlying issue of government."
Perhaps the most famous case in which documents that have been kept secret from the public -- and have stoked endless conspiracy theories, paranoia, and rumors -- is the Kennedy assassination. Documents that could shed light on the late CIA officer George Joannides and his relationship with Fidel Castro, for example, should have been released long ago -- but, decades later, they still remain secret. "My God, nobody's alive today," Blakey tells me. "My kids say, 'Dad, if there's a conspiracy, it must have been you and Castro. You're the only ones left standing.'"
Often the best way to end speculation about governmental affairs is to release the documents so the real story can be told. Obama has supported this approach to governing, and his transition team has come up with recommendations for improving the current system of declassification. Still, some people have concerns. "Many of his recommendations pointed backwards, towards undoing what the Bush administration has done, rather than to a qualitatively new information security policy," writes Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy, in his e-mail newsletter, Secrecy News.
Aftergood and other experts are hoping that Obama will establish a National Declassification Center, a proposal that Obama endorsed during his campaign. The center would streamline the process of declassification, setting up a clearinghouse for decisions on releasing documents rather than leaving that to officials at individual agencies, where efficiency regarding declassification procedures can vary. CIA officers are pretty good at managing their workload, Leonard says, but officials at the Defense Department, for example, would benefit from a center that would help expedite the process.
Meanwhile, Obama's personnel announcements are a step toward a more open government. John Podesta, who co-chaired Obama's transition team, has a record of fighting for declassification. As chief of staff for President Clinton, Podesta helped develop an executive order on declassification that has been heralded by experts. Leon Panetta, the new head of the CIA, led much of the Clinton-era declassification efforts. Obama chose Eric Holder, who served as deputy attorney general under Clinton, for attorney general, and Elena Kagan, dean of Harvard Law, as solicitor general. These individuals, as well as many of the others who have been appointed by Obama, have shown in their writings and public statements that they believe in transparency in government.
"Collectively, this is a group of people who seem to be committed to the rule of law," says the ACLU's Jaffer. In addition, Obama has put forward Dawn Johnsen, who teaches constitutional law at Indiana University, to head up the Justice Department's Office of Legal Counsel (OLC). That is, of course, the place where Yoo's memos on interrogations originated. "What makes her such a thrilling choice is that she has been an outspoken critic of the secrecy at the OLC," Aftergood says. "That appointment all by itself heralds a dramatic shift."
But despite Obama's promises to run the nation openly, he runs the same risk that every president does. "He's just another human being. People will want to check his policies, and he will want to control the information," Blakey says. He believes that the Bush administration's climate of secrecy will have to be changed by more than new laws and bureaucratic restructuring. In addition, Obama should convey a message of transparency through speeches and public displays.
As Blakey says, "Somebody has to constantly remind him that there was a day when he was not president, and we're just giving him the power for a term. It's not his; it's ours. It's an attitude, from top to bottom."
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