BC-FOI-CIA-COMMENTARY:MCT — op-ed (900 words)
Restoring CIA credibility and preserving the right to know
FOCUS ON FREEDOM OF INFORMATION
(MCT)
After weeks of deadlock, the 108th Congress in its final days passed an intelligence-reform bill to repair what the bipartisan 911 Commission found to be a dysfunctional Central Intelligence Agency. The bill's purpose: to prevent another terrorist attack on U.S. soil. Now that the nation's intelligence services are being overhauled, the new 109th Congress should take the next logical step: to restore the CIA's credibility with the American people.
The credibility of the nation's lead spy agency has been in decline for years. When George J. Tenet was named CIA director in 1996 he became the agency's fifth director in six years. The agency's cracked credibility was finally shattered with revelations of CIA failures in connection with the 2001 terrorist attacks on New York and Washington, and the CIA's unfounded assessments of Iraqi weapons of mass destruction.
A good place to begin rebuilding the CIA's credibility would be for Congress to override a misguided 1985 Supreme Court decision that exempted the CIA from virtually any disclosure requirements under the Freedom of Information Act. When Congress passed the FOIA in 1966, the CIA was subject to the law's disclosure requirements along with every other federal agency, including the Federal Bureau of Investigation.
For the last two decades, however, near-blanket CIA secrecy has gone largely unchecked, principally because of high court-sanctioned secrecy that blocks public and press efforts to evaluate CIA performance, and makes agency accountability difficult, if not impossible. For example, the 1985 Supreme Court decision in CIA v. Sims remains the basis for keeping the CIA's budget a secret — even from most members of Congress. This ruling was also cited by the Justice Department to allow authorities to withhold basic information on people detained after the Sept. 11, 2001, terrorist attacks. In fact, it is the legal basis that permits the government to withhold unclassified CIA records going back 40 years or more.
Under the Supreme Court's broad CIA secrecy standard, the CIA can withhold unclassified information, regardless of how innocuous or trivial, simply on the assertion that disclosure could compromise an "intelligence source."
Meanwhile, the court has accepted the CIA's sweeping definition for the term "intelligence source," which the agency equates with any source of information, and this can include a telephone book or an obscure Eastern European journal. Further, the court's ruling also exempts the CIA from lower-court judicial review when the agency refuses to comply with a FOIA request, thereby making CIA authority absolute.
The Supreme Court grounded its ruling on the concept of "great deference" — a Cold War-era theory propagated by the CIA that it alone is in the unique position of being best able to determine whether information poses a danger to national defense. The danger posed by the "great deference" rationale is that the CIA can evade the pressure of public accountability and exploit secrecy to conceal its failures and blunders. Indeed, the CIA's missteps in connection with the 9/11 attacks and the Iraqi war tragically illustrate the follies of how excessive secrecy can conceal grave problems in agency management.
Congress has the power to override the Supreme Court's decision and forcefully reiterate the intent of FOIA's crafters to hold the CIA accountable to the public. Such a move is precisely what is needed in the post-9/11 era. The 9/11 Commission Report is filled with references to the "new challenges" that the United States faces in the 21st century. "(T)he national security institutions of the U.S. government are still the institutions constructed to win the Cold War," the report said. "The United States confronts a very different world today."
It is time for Congress to craft a CIA public-access model for the 21st century, a more mature model of democracy that takes into account the powerful societal changes that the United States has undergone since Watergate, Vietnam and the end of the Cold War. All of these watershed events have prompted a profound cultural shift in terms of what the American public has come to expect to know about their government and demand in transparency. Paternalistic government and blind public acceptance of policy when it comes to this nation's defense and foreign relations represent the thinking of a culture that no longer exists.
When the CIA conceals important information that should be part of the public discourse on issues of national concern, the agency is in direct conflict with the democratic principle of accountability and the First Amendment right of citizens to debate vital policy questions. Further, by shrouding itself in unreviewable secrecy, the CIA restricts the infusion of new ideas, innovative thinking and potential solutions to the most serious and challenging problems facing America today.
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ABOUT THE WRITER
Martin E. Halstuk is a professor of media law at Pennsylvania State University and a senior fellow at the Pennsylvania Center for the First Amendment. Readers may write to him at: College of Communications, Pennsylvania State University, University Park, Pa. 16802-5101, or via e-mail at meh21@psu.edu.
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© 2005, Martin E. Halstuk
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