Over the past couple of years, Mr. Gertz has written more stories based on classified government documents than you can shake a stick at, infuriating Clinton Administration officials and making a mockery of official classification policy (S&GB 61).
But on New Year's Day, Gertz and the Washington Times surpassed themselves and challenged a legal precedent by publishing a U.S. spy satellite photograph. The photograph portrayed the Russian aircraft carrier Varyag being prepared for dismantlement in the Ukraine's Nikolayev shipyard (1/1/97, page A3). In its enthusiasm for a hot story, the Times even transcended its own political predispositions, which do not usually lend themselves to exposing the decrepitude of the Russian military.
The satellite photograph was reproduced from a top secret CIA report, obtained by Mr. Gertz, which explained that "The destruction of the... Varyag will virtually eliminate Russia's chances of acquiring new carriers capable of operating high performance, fixed-wing aircraft for at least 10 years."
While the story is interesting in itself, publication of the accompanying satellite photograph is a bombshell in terms of secrecy policy. For one thing, "This is the first 'overhead' image to leak in over a decade, and it is certainly the only image from the new generation of photoreconnaissance satellites," said John Pike of FAS.
But what is breathtaking about the Times photo is its historical resonance. In 1984, satellite photos depicting the construction of a nearly identical aircraft carrier (the Varyag's sister-ship Kuznetsov) in the very same shipyard were leaked to Jane's Defence Weekly. Following a landmark trial, the leaker-- Samuel Loring Morison, a Navy intelligence analyst-- ended up serving two years in jail. Incredibly, the charge against Morison was espionage, marking the first time that anyone had ever been convicted of a crime, let alone espionage, for providing classified information to the media. (United States v. Morison, 604 F. Supp. 655, appeal dismissed, 774 F.2d 1156 [4th Cir.], cert. denied, 109 S. Ct. 259 ).
For a time in the 1980s, the Morison conviction seemed to portend an American version of England's Official Secrets Act, with all of the chilling effects on the media that that would entail. Some idiosyncratic voices even went so far as to call for prosecuting media outlets that publish classified information. "If society actually does believe that the media has the right to publish classified material, then society is mistaken!" wrote retired security official George P. Morse in a cranky but fun tirade called America Twice Betrayed: Reversing 50 Years of Government Security Failure (Bartleby Press, Silver Spring, MD, p. 194).
The worst fears engendered by the Morison case did not come to pass, and today most national news outlets routinely report classified information, fueling the congressional oversight process and adding an essential dimension to government accountability. Furthermore, this role is all but universally recognized and accepted. "I do not fault the media when sensitive information is published or broadcast," FBI Director Louis Freeh told a Senate Judiciary subcommittee on December 19. "To the contrary, it is a fundamental part of our democratic system that the media vigorously pursue information about the inner workings of government."
So no one suggests that the Washington Times or Mr. Gertz has done anything wrong. "To the contrary." But by almost precisely replicating the action which led to Morison's conviction, they have vividly demonstrated their contempt for the Morison precedent.
As for Mr. Gertz's source-- who is the counterpart to Samuel Morison in this case-- he has defied official classification policy in about the most provocative manner possible, practically daring security officials to catch him. But although the FBI currently has 17 investigations into unauthorized disclosures of classified information underway, the government appears incapable of stemming the continuing erosion of security discipline represented by this and many other instances.
Official reaction to the Washington Times story and photo was muted, masking a undercurrent of outrage and exhilaration.
"It was not an authorized release," said Katherine Schneider of the National Reconnaissance Office. "We don't comment on things like this."
Mark Mansfield of the Central Intelligence Agency declined to address the Times story specifically, but told S&GB generally that "Deliberate unauthorized disclosure of sensitive classified information compromises the national security, putting at risk lives and vital U.S. interests. It also puts at risk intelligence sources and methods of operation that can take years to develop, often at great expense."
But one intelligence community official told S&GB that "Though it was an egregious violation of security, I am secretly happy that people get to see how good we are once in a while."
A copy of the satellite photo, reproduced from the Washington Times, may be found at http://www.fas.org/irp/imint/kh-12.htm. A copy of the Morison photo published in Jane's in August 1984 is at http://www.fas.org/irp/imint/kh-11.htm.
"The Advisory Committee on Historical Diplomatic Documentation has examined the denied documents and concluded that this published compilation does not constitute a 'thorough, accurate, and reliable documentary record of major United States foreign policy decisions', the standard set by Public Law 102-138 of October 28, 1991," the Preface stated.
The FRUS volume, published in 1996, addresses U.S. policy towards Northeast Asia during the Eisenhower and Kennedy Administrations. Of the material concerning Japan selected by government historians as representative of U.S. policy, the declassification of 13.5% was blocked by the Central Intelligence Agency.
"The denied material relates to ramifications and arrangements arising from certain aspects of the Mutual Security Treaty of 1960 and ... actions of the U.S. Government in response to the political situation in Japan during the years 1958-1960," according to State Department historian William Z. Slany.
Since 1861, FRUS has served as the official record of U.S. foreign policy and diplomacy. That record is now tainted by the failure to declassify policy documents-- not the names of agents or designs for weapons of mass destruction-- that are nearly 40 years old. Significantly, the weight of the secrecy bureaucracy and the obtuseness of CIA classification officials were sufficient to displace even the legal requirement for historical accuracy of the FRUS series. When Cold War secrecy and the rule of law clash, the law evidently must yield.
Although the present FRUS volume was permitted to be published with a disclaimer, historians believe that "a number of future volumes should not be published if documents on well known CIA covert actions are not included," noted Dr. Page P. Miller of the National Coordinating Committee for the Promotion of History.
In a concrete demonstration that openness can generate positive consequences even on the international level, Secretary O'Leary announced the release of a "Report on USSR Nuclear Weapons Tests" that had been prepared by the Russian Ministry of Atomic Energy as a "symmetric" response to a similar report on U.S. weapons tests issued by DOE in 1994.
She also announced the release of a draft regulation on DOE classification policy for public comment http://www.fas.org/sgp/clinton/doereg.html. It is "the first time that the public will participate in the formulation of basic policies and procedures concerning the classification of nuclear- related information."
She reported that for the last three years, DOE has declassified more pages than it has classified. "We are keeping high walls-- and in some cases building higher walls-- around the most sensitive information. But in other areas we are tearing down all kinds of walls that are no longer needed," she said. Secretary O'Leary's tenure demands a dissertation-length investigation as a case study in the transformation of a bureaucracy, the full scope of which challenges comprehension. The successes and limitations of the Openness Initiative, the Secretary's complex relations with her own Department, with other government agencies, with Congress, the media and the public are all pregnant with lessons in bureaucratic politics. Unfortunately, one of the those lessons seems to be the decisive importance of bold and innovative leadership, a quality in short supply.
In other words, the continuing classification of the intelligence budget serves a political function, not a national security function. But endorsing the use of classification as a political instrument tends to validate and promote the practice of politically motivated leaks, which are now at an all time high. In the end, ecological balance in the infosphere is maintained, but in a rough, ragged, and perhaps occasionally dangerous way.
The classification of the intelligence budget is now a violation of law and of executive order. Executive Order 12958 dictates that "If there is significant doubt about the need to classify information, it shall not be classified" (sect. 1.2b). Since the White House specifically declared last April that the 1997 intelligence budget total could be safely declassified, there is "significant doubt" about the need to classify it-- so it should not be classified. Since it is not properly classified, it must be released pursuant to a Freedom of Information Act request. Yet the CIA continues to deny such requests, as if the executive order and the FOIA did not exist. An appeal is pending, but in the absence of Congressional leadership it will take a FOIA lawsuit to compel release of the official budget number.
Secrecy & Government Bulletin is written by Steven Aftergood and published by the Federation of American Scientists.
The FAS Project on Government Secrecy is supported by grants from the Rockefeller Family Fund, the CS Fund, the New York Times
Foundation, and the Greenville Foundation.