SECRECY NEWS
from the FAS Project on Government Secrecy
April 6, 2001
** THE PITFALLS OF LEGISLATING SECURITY
** A US-CHINA AGREEMENT ON MILITARY SAFETY
** BUSH ON FOIA
THE PITFALLS OF LEGISLATING SECURITY
In response to various real and perceived security lapses, Congress has
increasingly intervened to legislate new security policies for the
executive branch, unilaterally enacting new rules on declassification,
polygraph testing, and other aspects of security. But such legislation is
a blunt instrument that is now creating more problems than it solves, many
security officials say.
The latest controversy concerns a new statute that prohibits the Defense
Department from granting or renewing a security clearance to: anyone who
has been convicted of a crime and sentenced to a prison term exceeding one
year; anyone who has received a dishonorable discharge from the military;
and certain others.
The statute was crafted by Senator Robert Smith last year after it was
discovered that in numerous cases, murderers and other felons had been
granted security clearances. Senator Smith's language was included as
Section 1071 of the FY 2001 Defense Authorization Act. See:
http://www.fas.org/sgp/congress/2000/defauth.html#1071
Keeping felons away from classified material might seem like a sensible
idea, but Sen. Smith's statute is generating new problems because of its
rigid and possibly unenforceable language.
In the first place, it makes no allowance for the passage of time. A 50
year old could lose a security clearance based on an dishonorable discharge
from the military or a drunk driving conviction that occurred when he was
18. As a result, not only would the employee lose his job, the government
could lose the benefits of a person with unique skill sets.
Security clearances are supposed to be adjudicated based on "the whole
person," taking into account all relevant aspects of a person's behavior
over time, including both adverse information and possible mitigating
factors. The Smith statute says forget about the whole person -- there are
some things that should categorically disqualify someone from holding a
clearance.
A second problem is due to the fact that the statute only applies to the
Department of Defense. It therefore undermines the objective of
"reciprocity" according to which agencies are supposed to recognize and
accept each other's security clearance policies. Under the new law, a
person cleared by CIA might now have to be rejected by NSA or other defense
agencies.
Worst of all, the delayed impact of the Smith statute produces some
perverse incentives. The statute does not immediately affect any of the
two million cleared DoD employees and contractors-- no clearances will be
immediately revoked. Rather, it prohibits *renewal* of clearances whenever
periodic reinvestigations are performed every 5 years or so. This means
that an unknown number of cleared personnel will be in a position to
anticipate that because of the new law their clearance will not be renewed,
and their job will be lost, and there is nothing they can do about it.
"This is a recipe for creating a disgruntled employee," said one agency
security official on Thursday at a meeting of the National Industrial
Security Program Policy Advisory Committee, where the statute was
discussed. "Disgruntled employees" are of course a source of security
violations and other concerns.
"They [Congress] fired for effect," said Dan Jacobson, retiring staff
director of the interagency Security Policy Board (which was recently
abolished by President Bush's National Security Presidential Directive
1). "Obviously, this law is going to have to be fixed."
"I'm sure the Senator didn't intend this," another security official said,
"but it's a real problem."
The lesson of this and similar legislative initiatives to tighten security
seems to be that Congress should set performance goals and perform rigorous
oversight. But it would do better to leave the execution of security
policy to the executive branch.
A US-CHINA AGREEMENT ON MILITARY SAFETY
In 1998, the United States and China signed an Agreement "On Establishing a
Consultation Mechanism to Strengthen Military Maritime Safety" that may
provide a framework, or a model, for advancing a resolution of the current
standoff concerning the downed US Navy plane in China.
In that Agreement, the two countries established a procedure "for the
purpose of promoting common understandings regarding activities undertaken
by their respective maritime and air forces...."
The agreement "is designed to construct a framework whereby you can work
out issues between China and the United States of both maritime and
aviation rules," said Adm. Craig Quigley at the Pentagon press briefing on
Thursday.
The Pentagon released a copy of the Agreement, which is posted here:
http://www.fas.org/nuke/control/sea/text/us-china98.htm
BUSH ON FOIA
President George W. Bush offered his first official thoughts on the Freedom
of Information Act on Thursday, responding to a question posed at a meeting
of the American Society of Newspaper Editors:
"There needs to be balance when it comes to freedom of information laws.
There's some things that when I discuss in the privacy of the Oval Office
or national security matters that just should not be in the national arena."
"On the other hand, my administration will cooperate fully with freedom of
information requests if it doesn't jeopardize national security, for
example. The interesting problem I have, or for me, as the President, is
what's personal and what's not personal. Frankly, I haven't been on the job
long enough to have been -- to have had to make those choices."
"I'll give you one area, though, where I'm very cautious, and that's about
e-mailing. I used to be an avid e-mailer, and I e-mailed to my daughters or
e-mailed to my father, for example. And I don't want those e-mails to be in
public -- in the public domain. So I don't e-mail any more, out of concern
for freedom of information laws, but concern for my privacy."
"But we'll cooperate with the press, unless we think it's a matter of
national security, or something that's entirely private."
It should be noted that the President's personal email messages -- and
presidential records generally -- are not subject to the Freedom of
Information Act. At the same time, records concerning national security
are not exempt from the Freedom of Information Act, unless they are also
"properly classified."
The President's agreement to "cooperate" with the requirements of the law
is encouraging but not exactly inspirational. By way of comparison,
oldtimers may nostalgically recall President Clinton's ringing endorsement
of the FOIA in October 1993:
"For more than a quarter century now, the Freedom of Information Act has
played a unique role in strengthening our democratic, form of government.
The statute was enacted based upon the fundamental principle that an
informed citizenry is essential to the democratic process and that the more
the American people know about their government the better they will be
governed. Openness in government is essential to accountability and the Act
has become an integral part of that process."
See:
http://fas.org/sgp/clinton/reno.html
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___________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
http://www.fas.org/sgp/index.html
Email: [log in to unmask]
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