Special report

Science, secrecy, and the lawCourt tests may determine whether the Freedom of

Information Act is indeed an extension of the First Amendment

Secrecy in science may have begun during the age of policies that are more political than scientific. Andalchemy when, regardless of how successful basic and such political policies are not always beneficial. Forapplied research may have been, collaboration among example, in a speech stressing the dangers of over-"scientists" was virtually nil because of a selfish de- classification, Senator Edmund S. Muskie (D-Maine)sire to retain exclusivity for any and all develop- cited a rather bizarre case: "Around 1960, a sign inments. As a result, secrecy became a necessary part front of a monkey cage in the National Zoo explainedof the scientific procedure. that the monkey on display was a research animalTo atomic physicist Edward Teller-a leading ex- who had traveled into space in American rockets. But

ponent of the idea of free exchange of scientific infor- at the same time, the Pentagon was classifying all in-mation within the limits of the law-the break with formation that showed we were using monkeys inthe traditional secrecy of the alchemist at the end of space. The reason given for trying to keep the infor-the 18th century signaled the most important attitude mation secret was someone's concern that it mightchange in science history, and heralded the modern era damage our relationships with India, where some reli-of technical publication, which has since become gious sects worship monkeys."almost obligatory for most scientists and engineers. Cognizant of the overzealous secrecy that exists in

Following the close of foreign policy alone, form-World War II, world gov- er United States Attorneyernments. especially the "One should expect that in the cold war General and Under Secre-

the spectacle of nuclear each side will use the weapon which it can tary of State Nicholasthe spectacleofnuclear ~~~~~~~Katzenbach, in a recentannihilation-precipitated handle best. Secrecy is the appropriate article published in For-an almost paranoiac re- weapon for a dictatorship, whereas open- eign Affairs, expressed aversion to scientific se- ness is the weapon that democracies strong plea for reducingcrecy. To this, Prof. Teller the whole role of secretmakes the following com- should use." information in foreignment: "There are many Niels Bohr policy, declaring that thewho believe that secrecy system of classifying doc-is needed for reasons of uments has not workednational security. The fact is that secrecy did not and should be drastically cut back. Urging the aban-prevent loss of leadership by the United States in donment even of covert extranational operationsthe field of nuclear weapons. On the other hand, a (such as those engaged in by the CIA), Katzenbachmuch more open policy permitted the rapid develop- stated: "However difficult and complex our foreignment of computers, a field in which the United States policy may be, there is no license to free it from thehas a position of undisputed leadership." mandates of the Constitution or the constraints ofTo those who question the advisability of divulging public views, interests, and wants." As Senator Stuart

such critical information as nuclear secrets--merely Symington (D-Mo.) recently stated, "tl have] slowly,to sustain the principle of open scientific communica- reluctantly, and from the unique vantage point oftion-Prof. Teller's answer is that even the smallest having been a Pentagon official and the only memberand most disadvantaged nation, if it really wants to, of Congress to sit on both the Foreign Relations andcan obtain whatever information it desires, whether Armed Services Committees, concluded that Executivethrough cajolery or self-determination. In fact, Prof. Branch secrecy has now developed to a point whereTeller believes that no nation can have more than a secret militarv actions often first create and thenyear's scientific lead over a technologically developed dominate foreign policy responses."rival, and proposes that all documents be declassifiedwithin one year. No matter how deep a scientist's No greener grassconviction, however, Teller insists the rules be strictly The United States is not the only country that hasadhered to. In other words, don't break the law! experienced inordinate secrecy. In the U.S.S.R., indi-

vidual scientists, realizing the advantages of unfet-National secrecy tered information exchange, have begun expressing

Indeed, it may be that much of the secrecy in their desire to initiate an international scientific dia-science is actually a ramification of national security logue. Such cooperation has already been established

in the field of controlled thermonuclear fusion (seeSpectrum, Jan. 197,3, pp. 60-64), as typified by the

Marce Eleccion Staff Writer last International Quantum Electronics Conference,

IEEE spectrum NOVEMBER 1973 65

which had a registration list that read like an inter- concerning the Government, the Committee can exertnational who's who of nuclear and laser scientists. considerable clout. An excerpt from the original Jus-Unfortunately, this year's Conference on Laser Engi- tice Department memorandum-signed by Assistantneering and Applications was conspicuous by the ab- Attorneys General William H. Rehnquist and Williamsence of invited Russian scientists. Despite this set- D. Ruckelshaus-serves as a clear reminder of theback, it is Dr. Teller's opinion that the recent collabora- task cut out for the Committee:tion between East and West has produced valuable "We request that in the future you consult this de-results. partment before your agency issues a final denial of a

request under the Freedom of Information Act if there5 USC 552 is any substantial possibility that such denial might

In the United States, interest in removing the lead to a court decision adversely affecting the Gov-shrouds of excessive secrecy of any kind has proceed- ernment.... It is our hope that through the consulta-ed at an accelerated pace since 1966, when Congress tion and review procedures ... and through exchangespassed Section 552 of Title 5 of the United States of experience and views on problems of common in-Code (5 USC 552), popularly known as the Freedom terest, positive benefits will accrue to individualof Information Act (FOIA). Sponsored by Representa- agencies, the Government as a whole, and the pub-tive John E. Moss (D-Cal.), then chairman of the lic.Foreign Operations and At the present time,Government Information Freedom of InformationSubcommnittee of the "Nothing so diminishes democracy as Committee members areHouse Government Opera- secrecy. Self-government, the maximum with the Justice Depart-tions Committee, the Act participation of the citizenry in affairs of ment's Office of Legalbecame effective on July.44, t,i ennflonywt nifre Council and Civil Division.1967, as an amendment to state, is meaningful only with an informed The Committee chairman,the Administrative Proce- public." Robert L. Saloschin, hasdure Act of 1946, which Ramsey Clark given Spectrum his viewsgave the gound rules by on the overall impact of thewhich Government agen- Act, and specifically on itscies must perform their functions. applicability to the scientist and engineer; they appear

In essence, the Freedom of Information Act requires on pp. 68-69.all federal agencies to make "identifiable" records In its unique position as arbiter of Government de-available "to any person" who requests them accord- cisions to disclose or withhold valuable information-ing to prescribed procedures. Although the principal some of which may represent expenditures of manyconcerns of 5 USC 552 are general in nature, there is millions of dollars-the Freedom of Information Com-specific applicability to matters that deal with mittee could almost assume the role of ombudsman,science in Government; it remains to be seen just how or protector of the people, against the arbitrary han-important a role the Act will play in future Govern- dling of sensitive information. According to Robert V.ment policies dealing with scientific disclosure. Zener, a Committee member, there has already beenThe major concerns of 5 USC 552 are: "one case when an agency was about to turn over in-

* that disclosure be the general rule, not the excep- formation that would endanger an informant's life.tion, We told them to deny access to that information."* that all individuals have equal right of access, One of the important functions of the Committee* that the burden be on the Government to justify has been "to extract the real reasons for a denial, tothe withholding of a document, not the person who penetrate the bureaucrat's blind recitation of regula-requests it, tions and cases . . .," says Zener. In appreciating the* that individuals improperly denied access to docu- difficulty of his assignment, Chairman Saloschin seesments have a right to seek injunctive relief in courts, promise: "Many competent lawyers are in disagree-* that there be a change in Government policy and ment over the interpretation of this law ...This newattitude. committee will encourage the development of exper-As a result of the difficulties encountered by some tise in this field."

Federal agencies in adhering to 5 USC 552, the U.S. Since enactment of the Freedom of InformationJustice Department on Dec. 8, 1969, issued a memo- Act, various groups have taken an active interest inrandum to the general counsels of all Federal depart- seeing that it is rigorously applied. These include notments and agencies for responding to requests under only major corporations, the American Bar Associa-the Freedom of Information Act. Recognizing the fact tion, and private individuals-Ralph Nader has morethat vital Governmental operations and programs suits in litigation involving the Act than anyone-butmight be compromised as a result of adverse judicial the U.S. Congress as well. In fact, the first volume ofdecisions, the Justice Department established the hearings-dealing with Executive Privilege, secrecy inFreedom of Information Committee to assist in re- Government, and freedom of information-before Sen.viewing questionable agency decisions regarding the Muskie's Subcommittee on Intergovernmental lRela-release of Government information. Although the tions, Senator Sam J. Ervin, Jr.'s (D-N.C.) Subcom-Committee's role is admittedly an advisory one, it mittee on Separation of Powers, and Senator Edwarddoes have the option of refusing to defend an agency's M. Kennedy's (D-Mass.) Subcommittee on Adminis-decision if brought to court. Since .Justice Depart- trative Practice and Procedure was only just releasedment representation is important in court actions at the time of this writing. In addition, the Adminis-

66 I:EE spectrum NOVEMBER 1973

trative Conference of the United States, an indepen- may request the disclosure of information. In thisdent Federal agency established in 1968 to develop case, the statute seems quite clear: "any person" canrecommendations fir improving the Federal adminis- initiate a request. According to Shattuck, however,trative process, has already issued a study of the Act. "the agencies have taken the view that persons who

request information must indicate that they haveA dissident view some special need for the information. "One of the more vigorous opponents of the spirit in Although he points out that Congress was con-

which the Freedom of Information Act has been en- cerned that the nine exemptions to 5 USC 552 (seeforced has been .John Shattuck. staff counsel for the box, pp. 69) should not devour the affirmative thrustAmerican Civil Liberties Union. His statements con- of the Act, Shattuck's view is that the sheer numbercerning the Act are frank and have great implications and broad language of the exemptions tend to givefor the scientific initiative: agencies a rubber-stamp rebuttal for almost every"The underlying purpose of the Act was to open up type of request.

(Jovernment records and material to discovery by cit- "The first exemption is undoubtedly the most im-izens for public debate and use ... The Act, therefore, portant, particularly for scientists," he says. "It cov-should be seen as an affirmative effort on the part of ers 'national security information specifically exempt-Congress to give specific content to the freedom of ex- ed by Executive Order' -in other words, 'classifiedpression." information.' . While the courts are authorized byShattuck claims that, unfortunately, it has not the Act to conduct a thorough factual review of each

worked out that way, and that conflicting legislative case of nondisclosure, when the national security ex-history, as well as bureaucratic hostility and inertia, emption has been asserted they have been disinclinedcoupled with a general reluctance on the part of the to exercise this power. I'he Supreme Court earlierjudiciary to give it broad effect, has converted the this year, for example, held that any classified infor-statute into a "Freedom firom Information Act." mation is exempt, whether or not it is properly classi-

It is Shattuck's belief that there are a number of fied. This decision came in a case where 33 Congress-ambiguities and gaps in the affirmative provisions of men had sued the Environmental Protection Agencythe Act: for release of classified documents concerning the an-

"First, there is some difficulty about the definition ticipated environmental impact of the undergroundof a Government agency. Apparently, the statute has nuclear test on Amchitka Island off the coast of Alas-been interpreted to apply only to agencies recognized ka." In this case, the Supreme Court overruled aby another statute --the Administrative Procedure lower court decision and held that the documentsAct. A number of agencies with clear Governmental were exempt.functions-for example, the Federal Parole Board and In the face of President Nixon's recent executivevarious public corporations like AM'I'RAK-claim order establishing newer standards of classification,that they are not agencies within the meaning of the the impact of the first exemption to the FOIA mustAct. Similarly, the Office of Science and 'I'echnology be seen in terms of court reluctance to review suchclaimed it was a direct adjunct of the President's Ex- classifications, says Shattuck, adding: "The fault liesecutive Office and was also in the Act itself, whichnot an agency within the should be amended to re-

thouing th e Ay be 'Knowledge will forever govern i(niorance. quire confidential inspec-though the statute may be ° ion by a court when theambiguous, Shattuck be- Anid a people who mean to be theit own Government claims thelieves it was the purpose governors. must rMt themselves with the national security exemp-of Congress to require el ti.gives Apower kniowledge gie.A popular- gove,rndisclosure by virtually all Aside from problems as-Government offices, agen- ment without popuiar inifortnation, or the sociated with court andcies, and operations, and mnearns of acquiring it: iS but a prologue to agency interpretations, thethat, if necessary, the a farce or a tragedy. or perhaps both." effectiveness of 5 USC 552statute should be amended - . may be impaired by"suchto make this more clear. James Madison bureaucratic-economic redAccording to a June tape as prolonged delay by

1967 memorandum issued agencies in answering re-by Attorney General Ramsey Clark, however, the word sponses for information (one recent estimate put the"agency" applies to "every department, board, com- average response at 80 days per request), high pro-mission, division, or other organizational unit in the cessing fees, and the cost of opting for legal remedyExecutive Branch.' Moreover, Clark's justification of should an agency response be unfavorable.this definition results from the unmistakable wording Beyond the Actof Section 2(a) of the Administrative Procedure Act,defining agency as "each authority of the Government Despite the general inclusiveness of the Freedom ofof the United States, whether or not it is within or Information Act, areas of Government secrecy con-subject to review by another agency ...".I'he basis for tinue to exist without any apparent form of redress.broad Justice Department interpretation of "agency," According to Shattuck, the two that are particularlytherefore, has already been established. troublesome to scientists interested in an open infor-A second area in the affirmative provisions of the mation link involve leaks and favoritism in giving ac-

Act that concerns Shattuck is the question of who (Continued on page 70)

Elec6mic-scienct. secrccy, aAiiiCt,e hlw 67

cess to classified data, and the process of silencing in- ment business....ternal critics. He states: "The Government has many weapons to combat"The sheer weight of the Government's enormous this practice-the ultimate, of course, being the Espi-

classification apparatus makes leaks inevitable. onage Act familiar to watchers of the Ellsberg trial.Under the old Executive order, there were in the De- Some of the weapons are subtle and serve merely topartment of Defense alone nearly 40 000 officials with prevent epidemics of whistle-blowing....authority to classify documents. Under the Nixon "Other weapons are more of a direct threat to the freeorder, as we have seen, now even more officials can flow of information. One such weapon is the so-classify documents secret called 'secrecy agreement'and top secret. According signed by employees of theto testimony before a "I have always believed tilat freedom of CIA and various defenseCongressional committee information is so vital that only the na- agencies as a condition ofin 1971, there are over 22 their employment. Longmillion cuthently classi- tional security, not the desire of public considered hortatory butfied documents in the officials or private citizens, should deter- not enforceable, secrecyDefenseandStateDepart- mine when it must be resiricted." agreements have recentlyments.... LyCt B Jot7n been turned into severe si-

"It is inevitable, there- yndon B ohnson lencing devices by virtue offore, that much of this an extraordinary case inclassified information is which I was involved-either leaked from the Government files or is already in lJnited States vs. Marchetti.the public domain at the time it is classified. " "Victor Marchetti was an employee of the CIA fromAs an example of Government favoritism, Shattuck 1955 until 1969. When he joined the Agency he signed

mentions the case of Prof. Jerome Slater, who was se- a three-paragraph statement that he would 'never di-lected by the State Department to tell the "truth" vulge, publish, or reveal by word, conduct, or by anyabout the Dominican crisis: "In the spring of 1967, other means, any classified information, intelligence,after completing most of the first draft of a book, Sla- or knowledge . . . unless specifically authorized inter asked a State Department official with whom he writing, in each case, by the Director of Central Intel-was personally acquainted for a chance to see the De- ligence. .' More than 15 years later, having resignedpartment's records of the Dominican crisis. After from the CIA because, among other reasons, he feltsome time passed, Slater was informed that he could that Congress and the public did not receive enoughsee the classified files ... [if he did) not quote directly information about the Agency's overseas political ac-from the files nor acknowledge his use of classified tivities, Mr. Marchetti undertook to write a criticalmaterials.... In November 1970, after the publication analysis of the Agency.of Slater's book, Theodore Draper, who had written a "When he submitted the manuscript of a magazinebook critical of our Dominican policy, sought access article and the outline of a book to his publishers,to those uncited documents to which Slater had re- however, he was slapped with a court injunction."ferred.... The State Department Historical Office de- Based on Marchetti's 1955 secrecy agreement, the in-nied that any classified material had been given to junction was affirmed by both the District Court andSlater and referred Draper to Charles A. Myer, Assis- the Court of Appeals. The Supreme Court refused totant Secretary of State for Inter-American Affairs in review this decision.the Nixon Administration. Myer denied having given Wh t oSlater or anyone else access to documents on the Do- Wminican crisis. He refused to take responsibility for 'I'he Freedom of Information Act is a modern-dayany such actions of his predecessors and set out a pol- reaffirmation of the profound wish of the founders oficy of strict adherence to regulations." the American form of government to keep freedom of

expression inviolate-as expressed in the FirstThe silent treatment! Amendment of the Constitution of the United States.

In his indictment of Government techniques for si- That it has not worked to the advantage of all can belencing internal critics and preventing unauthorized interpreted as a manifestation of the unwieldly naturedisclosure, Shattuck declares, of today's political institutions, not an indictment of"What about the Government insider who gets fed the Act's original intent. With the recent consumma-

up with the incompetence he sees around him and tion of U.S. Senate hearings on Executive Privilege,wants to blow the whistle on Government secrecy? secrecy in Government, and freedom of information,

" 'Whistle-blowing' is a generally unsatisfactory an- the conditions that have permitted unreasonable bu-tidote to obsessive Government secrecy. Nevertheless, reaucratic constraints and administrative zeal toa small and diverse band of effective whistle-blowers thwart the best intentions of the Act may prove cor-has surfaced in the past few years. From an Army In- rectable.telligence Captain's description of the Army's surveil- More than this-and perhaps more basic to thelance of domestic politics, to Ernest Fitzgerald's dis- fundamental tenets of a free society-the question ofclosure of the huge cost overruns on the Air Force free and reasonable exchange of both nontechnicalC-5A program, to James Boyd's revelations about the and scientific information is inextricably woven intocampaign finances of his old boss, Sen. Thomas the fabric of societal values and political style.Dodd, Government insiders have opened small cracks Hence, any attempt at an answer can only reflect anin the wall of secrecy which surrounds most Govern- image of these fundamental patterns of influence.

70 Eileccion-Sc ience, secrecy, .dm< the law