The Pathology of Government Secrecy

Why the Freedom of Information Act Is Ineffective

FOIA, failures, Top Secret
Photo credit: Adapted by WhoWhatWhy from Pxfuel
Reading Time: 15 minutes

Everyone talks about the need for transparency in public affairs, but what the government means by transparency turns out to be… not all that clear.  

In this week’s WhoWhatWhy podcast, award-winning author Nicholson Baker (Baseless: My Search for Secrets in the Ruins of the Freedom of Information Act) describes what it’s like to try to squeeze even a small amount of truth from a huge mass of documents that the federal government seems determined, for apparently arbitrary reasons, to keep secret. 

Baker set out 10 years ago to learn about the use of biological weapons during the Korean War (1950-53). He never really gets those answers, but what he discovers along the way should concern all of us. 

Among other things, he demonstrates that the 1966 Freedom of Information Act is actually a framework for not getting information. It’s designed to keep inquirers waiting for documents that never arrive, to release records only with massive whiteouts and redactions, and to induce frustration so pervasive as to trigger a brief dopamine rush when even the tiniest crumb is given out.  

Related: FBI, Snipers & Occupy

Baker details what he sees as the cost to the country — and to history — when the facts behind major governmental initiatives are kept hidden for decades. He reminds us that at least part of the reason we never seem to learn from our mistakes is that we can’t even uncover what they were.

He talks about how the intelligence agencies are the ultimate secret club that effectively blackballs the rest of us from membership, and how we might act or vote differently if we had even a glimpse inside the clubhouse.

 

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Full Text Transcript: 

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Jeff Schechtman: Welcome to the WhoWhatWhy podcast. I’m your host, Jeff Schechtman.

Few subjects in our public discourse are as contradictory as transparency. Every politician talks about it. Elections are sometimes won or lost on the subject. Yet in reality, it’s a very different story. Perhaps it’s hard to conduct modern business under the glare of the public spotlight in this age of the internet and always-on 24/7 news. Perhaps it’s one of the challenges of the modern age that our founders might never have grasped. But how do we balance the public’s need to know with the government’s ability to do its work sometimes out of that harsh spotlight. Over the years, methods and institutions like the 1966 Freedom of Information Act have come along to try and do this. But for every effort like this, those in the inner recesses of government have found ways to circumvent the process.

  The goal always seems to be to wear down those making requests for information, make them give up, cry uncle. After all, often those people protecting government secrets are there forever, and those seeking the information sometimes have a life. That’s the struggle that award-winning author Nicholson Baker takes us on as he seeks to find out more about America’s possible use of biological weapons during the Korean War. Even with the perspective and protection of three quarters of a century, the facts are hard to come by. Nicholson Baker is the author of 16 books. His work has appeared in numerous publications and he’s received the National Book Critics Circle Award. He founded the American Newspaper Repository in order to save a large collection of US newspapers. His most recent book is Baseless: My Search for Secrets in the Ruins of the Freedom of Information Act. It is my pleasure to welcome Nicholson Baker to the WhoWhatWhy podcast. Nick, thanks so much for being here.
Nicholson Baker: Wow. That was a wonderful introduction. Thank you. I’m delighted to be with you in spirit, Jeff, and to talk about information.
Jeff Schechtman: Well, it’s good to have you here. First of all, what set you on this search? Why did you want to find out this information about the Korean War, first of all?
Nicholson Baker: Well, I didn’t know much about the Korean War. I did not know much about biological weapons. I’m not intrinsically interested in them, except that my grandfather was a pathologist and he used to talk about fungal diseases at the dinner table. One of the first things that happened was when I was researching a whole different book that was about microfilming valuable library holdings and tossing out the original documents, I saw a book in the library, in a university library, and it was about the Korean War and the question of whether biological weapons were used. I looked down the list and one of my grandfather’s diseases was on the list, this disease, coccidioidomycosis. And I thought, “Wow, that’s just bizarre that American scientists were willing to work on and intensify diseases, and we’re really trying to make people sick more efficiently for this long period.”
  It pulled at me. It horrified me, of course. I mean, it’s a bad idea, but it was also the question mark over the whole thing. Who’d done it? Is it in fact true what the Chinese said and what the North Korean said? Is it true that some unit of American forces tried to make an enemy sick during a war? Is that true? Bizarrely enough, it’s still a question.
Jeff Schechtman: How did you begin to dig in?
Nicholson Baker: Well, I began by reading books and then the documents that are behind the books. I went to the National Archives. I went to the Eisenhower Presidential Library, the Truman Library, to repositories in various universities, private papers. There’s a lot. There’s a lot that you can learn about the past, but there’s a class of documents that are particularly interesting and why they’re interesting is that you’re not allowed to learn what’s on them. I would be sitting in the National Archives reading room in College Park. It’s a beautiful, big light-filled room. There are maybe 300 people sitting at little desks and we’re all going through our papers following some research path, and it’s fascinating. It’s a great privilege to sit there and be able to look at the record of one’s own government.
  Every so often, though, as I was turning the pages of the records of this very small Air Force department in the Pentagon, I would come to a piece of cardstock, yellow, stiff cardboard, and it would say, “Access Restricted. The document was removed on such and such a date.” There would be the initials of the person who removed it, and maybe the person who sent the memo and received it. It would be a memo from, say, 1950. I’m thinking, “Why, when all these other memos have been declassified, all of them are stamped top secret, so every single memo in this entire file is top secret and yet these ones are still being kept secret?” That’s the crucial information that this piece of cardboard can tell me that.
  The next step is to say, “What is the document?” So then you file a request for that thing. I did that in 2012. I said, “Here’s 21 documents I know exist, and they’re just across the wall. They’re behind there in a secure area. See them.” I still haven’t been able to see them and it’s now 2020, so eight years have gone by. Many emails. Nothing. It’s not an untypical experience, actually, for a person who’s trying to do research. It’s the norm, really, if you’re writing about sensitive things.
Jeff Schechtman: One of the things about the Freedom of Information Act that is so frustrating that you talk about is that while it exists and seems like a good idea on the surface, there’s absolutely no enforcement mechanism for it.
Nicholson Baker: Well, that’s true. For a while, the fact that it was a law was a kind of a useful crowbar and it contained a lot of really amazing sets of documents, thousands, millions of pages of documents, especially during… The law was signed in 1965. So all the way through 1975, ’76, all the way through the Reagan administration, some really amazing, lurid, shocking episodes from the past, from Democratic administrations and from Republican administrations, came into public view as a result of it. Then there began to be this defanging process or this process of taking away certain powers of the Freedom of Information Act so that fewer and fewer documents came under its jurisdiction. There’ve been ups and downs with that. But we’re now at a point where the law is simply scoffed at. It’s not enforced.
  I mean, the law is that you’re supposed to get a response from a government agency for some documents that you’re requesting within 20 days. But some people wait 20 years. So it’s not… There’s no consequence to the government agency. It just doesn’t happen. The only way you get something sometimes is if you sue and it costs money. It takes time. It makes you crazy. So people don’t sue. So what happens is that, because the law is unenforced, history suffers. We don’t know what our country actually did at crucial points in its history as a result of the fact that this law is sitting on the books, but isn’t being executed in practice.
Jeff Schechtman: And so much of the intent is to, it seems, to wear down those making the request. That that’s not a bug, that’s a feature at this point.
Nicholson Baker: I felt it. That’s why I wrote this book as a diary is because I think it’s useful to point out the cost or the feeling that you get when you have to wait for years for something to be released. What does it do to you? It’s demoralizing. It’s crazy-making, really. But also the kinds of responses you get, these polite letters from, let’s say the CIA, saying, “We made a thorough search and [inaudible] responsive,” and then they come up with some reason they can’t release something. And then you send a letter back called an appeal and you say, “Yes, but that’s not actually true because of these reasons.” Another year goes by. It’s an amazing ballet of frustration. I mean, it’s just so hard because all you want is to know what happened. You’ve got a document.
  Sometimes you’ve got a document. You know what they look like. You know they’re blacked out or whited out. You’ve got a document that has words on it, but then all the useful, interesting, the action words, the words that would actually tell you what’s going on in people’s minds or what events had just happened on this memo, let’s say, are blacked out. You know that something is there. It’ll say something like, “Mr. Wisner reported on the trip to ‘blank’. And he said that they were encountering ‘blank’ and that many other operations would happen in the adjoining country of ‘blank’.” So you know that things are being talked about but all of the crucial nuggets that would make you able to understand what that is, what is actually going on, are all withheld. So that document counts as a declassified document, even though it has absolutely nothing to tell you. That does wear on the person who is trying to get at what happened.
Jeff Schechtman: The other catch-22 of all of this sometimes is that the requests are rejected because there isn’t enough information, but it’s impossible to get the information to make the request without seeing the document.
Nicholson Baker: Well, that’s a very good point. The one thing that I think is crucially important to do is to take the records of some of these big agencies, chief among them the CIA itself, out from under the CIA. Take the records from the CIA in the 1950s and 1960s away from the CIA so that they are not protecting them in order to preserve their own, in order to survive currently. What we need to know is how much is there. Even if they don’t declassify everything, if you know that there are, let’s say, 50 boxes about a certain revolution and a certain country, let’s say. 50 boxes of documents survive. Miracle. You know that then if they send you 12 pieces of paper, that that’s a very small release.
  But if you don’t know the total size of the records that the agency is controlling, you never know where you are. This is the chronic state of historical research is that you don’t know how much. So the agency will say, “We made a search of our records and we have these three pages for you.” You think, “Well, is that three pages out of 3000 or 30?” How much have you got? They’re not going to tell you. So you’d never know what is the iceberg and what is the tip.
Jeff Schechtman: You’ve alluded to this a couple of times, that the psychological effect that it has, the way it wears you down.
Nicholson Baker: What is it? It comes and goes, and that’s why also I wrote it as a diary. Sometimes it’s interesting to have a charged emptiness set up, feeling that there’s something there, you know it’s there and you can’t get at it. So you think, “I’m going to outsmart it. I’m going to look at newspaper articles from that period. I’m going to look at private document collections in universities. I’m going to figure out what that was, even though the agency is not releasing that.” It’s sort of this challenge that’s kind of exciting, but it’s only exciting for a while. After a while, you really just… It’s what you said so beautifully in your introduction. It’s a game of waiting and an agency has people who are paid a lot of money to go very slowly with things.
  The classic example of that, actually, there’s this beautiful story. I mean, this book is about sad things, but it’s also about inspiring things. This little group called MuckRock brought a suit against the CIA saying, “You have this huge digital trove of declassified documents, and people can only see them in a certain room in the National Archives for computer terminals that are surveilled by many cameras and your keystrokes are recorded. Those documents are declassified. So we’re bringing suit and we’re suing you to say that these documents should be made freely available to anyone who wants them.” And the CIA said, “Oh, no, that would take us 28 years to do that. We’d have to look at every document to make sure that it was fully declassified before we released it.” And then that seemed ridiculous.
  Everybody scoffed and said, “28 years? I mean, come on.” And then they came back and said, “No, no, no. We’ve recalculated. It would only take us six years.” And then this guy, Jeff Scudder, who had worked at the CIA and knew about digital stuff, became part of the lawsuit. And he said, “Go to Staples, costs you $69 to get an external drive, take you two days to download those documents, and it would be a matter of trivial, trivial expertise. This is something you could do instantly.” As soon as he said that the lawsuit changed and the CIA, this multibillion dollar, massively secretive organization folded, and it put all these documents that had only been accessible from these four computer terminals, it put them on its own website. It said, “We are making things available because we are open transparency advocates and we’re doing a great thing.”
  Well, they were forced to do it. Whatever. It doesn’t matter. These documents are now available to anybody who wants to look at them anywhere in the world. They are a record of some really bizarre thing. That was a huge victory that happened. That actually helped me a lot in writing the book, because some of the documents were material to the period I was studying.
Jeff Schechtman: There’s also the sense that when they give you one piece of paper or a couple of pieces of paper, that you’re so grateful for that, that you forget about the larger tranche that you haven’t gotten.
Nicholson Baker: It’s funny because there’s that. There’s even, the CIA has this weird way of sealing envelopes. They believe that if you send something through the US mail, you don’t just lick the envelope and seal it. You have to take one of those big industrial brown sealing tape, and they actually seal the back of the envelope with this brown string-reinforced tape. So you’ve got a letter. It just looks like a regular letter on the front and it says my address and then it says, return address, CIA. Turn the back, and there it is. It’s sort of like a lock on a safe, is this piece of brown paper. Even so, it’s exciting. You think, “Well, maybe there’s something material in here.” Then you open it up, and so often, almost always, it’s a response that’s a non-response.
  It’s saying, “We haven’t found anything,” or, “We’re denying your request.” It’s just wrong, basically. It’s just wrong because we’re talking about American history. In order to do American history, you actually have to have access to what people wrote in the State Department, in the CIA, in the White House. You have to know, what was the Truman administration doing? What were the Eisenhower administration doing? Those things are held back from us now. We have a new administration, the Trump administration, and we are looking on with some extreme dismay of what’s going on, but we can’t learn from some of the patterns and mistakes and behaviors and things that were said and done in the past properly, because we don’t know what they were. So we can’t actually be informed citizens in looking at our current predicament and learn from what we’ve been through. We’re in this state of enforced amnesia.
Jeff Schechtman: The other aspect is it, and this becomes a joke sometimes, but maybe this is at the core of it, the idea that government repeats the same mistakes over and over again. That we do the same things wrong. Part of the reason may be that we don’t have access to that history of how these mistakes were made.
Nicholson Baker: Very true. I think that’s absolutely true. You can see in the case of our adventures in regime change, that things that happened in Albania or in Guatemala or in Africa somewhere, or in Cuba, the bones, the structure of an intervention was often very similar. In fact, in the CIA, in the clandestine services is what it’s called, I guess, a department that was begun by the Truman administration in 1948 under a man named Frank Wisner, the record of those operations in, let’s say Iran or Guatemala, were held in binders. They were sort of used as pattern books for the next subversion or intervention. So one of the reasons these historical events seem similar is because the people who were engaged in the covert action were referring to the notebooks from the past. So we will need to know everything that are in those notebooks, and what we’ve got is some, especially in Guatemala, we have some of what’s there and not all of what’s there and that’s wrong.
Jeff Schechtman: To what extent did you find that the government plays favorites, that there might be journalists or organizations that they’re willing to release some material to and others not, and certainly they have ways of accomplishing that?
Nicholson Baker: Well, that does happen. I think that if you are thought to be friendly to an agency, it’s more likely that they will make some things available to you. That’s understandable. I mean, I see that if you, let’s say you’re writing about the Navy, if you’re a great fan of Naval history, and you feel that you’re going to write an inspiring story about something in World War II, you’re going to get treated differently than if you’re looking into some unfortunate event that happened under the jurisdiction of the Navy, let’s say the Navy’s work in plague research on the island of Alameda, the Naval Research Program. Well, they’re going to resist that. The Navy is seethingly secretive about that. I understand that. I understand that. I mean, it’s just the reality of it. But it doesn’t mean that you can’t…
  I guess the point of writing a book like this is partly to just bang the gong and say, “Look, live with me through the difficulty of trying to arrive at a coherent account of what happened a long time ago, and you will understand why it is important to reform this process by which old secrets are revealed. It’s important. It’s material. It affects our behaviors as a citizenry right now. We would vote differently and think differently if we knew better where we came from.”
Jeff Schechtman: Certainly part of it is the gotcha atmosphere that we live in politically. Because every side, every politician, every person inside government is so afraid that they might want to reveal somebody else’s secrets, but someday it could happen to them. Instead of learning from these mistakes and using them in a positive light, everything becomes a game of gotcha.
Nicholson Baker: The politicization of everything is so exhausting, isn’t it? I mean, really, if you look back, the structure of the American presidency is fairly consistent. It doesn’t matter what a president says about the desire for openness and everything. Each president, when they get into power, ends up seduced or something by this fact that he’s sitting on a mountain of weapons and armies and secret armies. Every president ends up doing things all over the world that he should not be doing. That is consistent. It’s Democratic and it’s Republican. It doesn’t have anything to do with where you stand. Unfortunately. And that’s the basic thing is we’ve got to understand, this is nonpartisan. This is about… I mean, it’s true that Trump is Republican and he’s probably the worst yet, but the tradition is consistent.
Jeff Schechtman: Beyond the political aspect, the other part of this, and it’s true of presidents, it’s true of even lower level people in cabinets, there’s a certain seduction to secrecy. Talk about that.
Nicholson Baker: I think it’s part of how the CIA, for instance, markets itself. The CIA’s product is secrets. The excitement of its being a shadowy realm of unknowability gives it a certain kind of an allure. The idea of saying it’s the Central Intelligence Agency, and the intelligence that it has is so intelligent that normal mortals can’t know it, is part of how it markets itself. In fact, it’s just a bunch of people sitting at desks, figuring out how to poke and prod other governments to do things that Americans want done. That’s not going to sound good. So secrecy is part of the creation of a kind of excitement, a feeling of a club to which you either do belong or don’t belong. If you have a security clearance in Washington, you are somebody. You breathe a different atmosphere. You are a person who has access to unknowable things that other people don’t even know can be known. This is exciting. So yes, absolutely part of it is the fact that secrecy itself is an exciting, intoxicational solvent that flows around documents,
Jeff Schechtman: Nicholson Baker. His book is Baseless: My Search for Secrets in the Ruins of the Freedom of Information Act. Nick, I thank you so much for spending time with us here on the WhoWhatWhy podcast.
Nicholson Baker: That was a pleasure. Thanks for the questions. I enjoyed it.
Jeff Schechtman: Thank you. And thank you for listening and for joining us here on radio WhoWhatWhy. I hope you join us next week for another radio WhoWhatWhy podcast. I’m Jeff Schechtman. If you like this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to WhoWhatWhy.org/donate.

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