Let the Sunshine In: Government Records and National Insecurities
Barbara Weinstein, April 2007
What do George W. Bush, Angela Merkel, and Luiz Inácio Lula da Silva have in common? They all head governments that have been embroiled in controversy over their reluctance or outright refusal to make government records available to scholars and/or the general public.
Most Perspectives readers are likely to be familiar with the recent controversies involving U.S. government documents. For the historical profession, one of the most troubling aspects of the Bush administration has been its efforts to limit access—whether for historians or "ordinary citizens"—to government records. These efforts have taken several forms, among them the reclassification of documents in the National Archives and Records Administration, including some already available in print and others that date back to the Korean War. Though this practice began in the late 1990s, it escalated under the Bush administration.1 Then there's the executive order allowing the president or the president's heirs to withhold papers from current and previous presidencies, beginning with the Reagan administration.2 The AHA, judging the latter to be a serious threat to the principle of free access, had joined a lawsuit to challenge this order. And now, in a series of dramatic and rapid developments, the Democratic-controlled House of Representatives has passed, by an overwhelming majority that included significant Republican support, the Presidential Records Amendments Act to nullify the executive order (for the latest news on this, see Lee White's essay in the Coalition Column).
The Bush administration has cited privacy considerations and always-dependable national security concerns to justify withholding documentation from the public. Critics of the administration, however, point to the ever-expanding definition of national security ("that mammoth fig leaf," to borrow a phrase from the New York Times columnist Bob Herbert) and insist that these policies more accurately reflect a concerted campaign to inflate presidential powers and reduce accountability. Whatever the justification or explanation, the end result is decreased access to government records and presidential papers, less public scrutiny, and an increase in government secrecy. All of this should be particularly disconcerting for historians since it represents a significant setback from the move toward greater openness initiated by the Freedom of Information Act, signed into law by Lyndon Johnson on July 4, 1966, and accelerated by a 1995 executive order signed by Bill Clinton that called for the automatic declassification of all government documents over 25 years old.3
Regrettably, the Bush administration is hardly alone in its retrogressive policies regarding declassification of government documents. Although dozens of nations have passed "sunshine laws" in recent years that facilitate access to public records, there are many instances where public officials have resisted greater openness and transparency. Take the case of the treasure trove of records from the Nazi era in the German town of Bad Arolsen. The massive documentation in the "International Tracing Service" Archive—an estimated 40 million pages on the fates of some 17 million individuals—bears bleak testimony to the Nazis' obsessive record-keeping. The United States Holocaust Memorial Museum, according to director Sara J. Bloomfield, "has for years been working to make these materials available to survivors and their families as well as to scholars."4 Nonetheless, the German government persistently refused to consider opening the archive, citing as justification the privacy provisions of German archival law (which mandates a hundred-year waiting period), even though the archive was created by an international agreement and therefore should not be subject to German law.
Recently, in April 2006, Angela Merkel's minister of justice reversed the German government's longstanding opposition and agreed in principle to open the archive, but since the records are jointly administered by 11 nations, all of which have to ratify the decision before the archive can be opened to researchers, the change in Germany's position has been, thus far, mainly of symbolic importance.5 It is interesting to note that the three nations that have declared themselves in favor of opening the archive—the United States, Israel, and Poland—are precisely those that one might expect to be most sensitive to the "privacy" issue, that is, if the concern is with the privacy of the victims, not the perpetrators or collaborators. Indeed, one of the themes in these various controversies is a pattern of governments being solicitous of the privacy of ordinary individuals, when, in fact, restricting access to records appears to benefit mainly those who have enjoyed extraordinary privileges and powers, and often frustrates the efforts of "ordinary individuals" who are precisely those seeking access.
As a historian of modern Brazil I find the Brazilian case under the Lula administration a particularly disturbing and perplexing example of this tendency. In the early 1980s, when Brazil was emerging from its 21-year military dictatorship, one of the dominant themes of the movement for re-democratization was open access to government records to counter the decades of secrecy and obfuscation that characterized the military regime. Brazilians campaigning to end the dictatorship regarded greater government transparency as crucial to making citizenship a meaningful condition. Accordingly, the 1988 constitution contained an article establishing the principle of open access as the normal state of affairs; documents would only be withheld from public scrutiny under extraordinary circumstances. Subsequent enabling legislation, passed in 1991, did allow documents designated as secret, highly secret, and ultra-secret to remain classified for specified periods ranging from 10 to 30 years, but recognized that the vast majority of federal documents would be made available to researchers and ordinary citizens.
A little over a decade later, then President Fernando Henrique Cardoso—a distinguished sociologist who had been deprived of his political rights and his university post under the dictatorship—issued a presidential decree just before leaving office that seemed to contradict the spirit and the letter of the previous legislation. This 2002 decree not only increased the span of time during which records ruled to be secret could remain classified (with some up to a hundred years), but set no limit on the number of documents that could be thus categorized, and delegated authority for the designation of such documents to precisely those government and military officials who would be least inclined to share them with the public. It even allowed "ultra-secret" documents to remain in "sigilo eterno"—perpetual secrecy.
Despite his radical past, it did not come as a great surprise to most Brazilians scholars and legal activists that Fernando Henrique had signed such a measure; throughout his presidency he had shown a disposition to compromise with the traditional "owners of power" in Brazil. In contrast, expectations were high when the head of the left-leaning Workers' Party (PT, the abbreviation of the Portuguese name, Partido dos Trabalhadores), Luiz Inácio Lula da Silva, succeeded FHC as president of Brazil. Lula, a former lathe operator and union leader, had been briefly imprisoned by the military regime for his role in organizing strikes that helped hasten the end of the dictatorship, and the PT was an active participant in the most robust pro-democratization currents in Brazilian society. In addition, the party was packed with former opponents of the military regime who had themselves suffered torture and illegal detention. Surely the new government would overturn the 2002 decree and expand access to the documentation of the federal government under military rule. Not only were archivists, legal experts, historians, and other scholars agitating for this; so were approximately 140 families of Brazilians who were "disappeared" under the military dictatorship.6
Those with high hopes that Lula's electoral triumph would soon inaugurate an era of government transparency and allow rapid access to the records of the dictatorship were once again disappointed. It was not until December of 2004 that Lula issued a provisional bill and presidential decree that modified the measure signed by his predecessor, reducing the restrictive periods for documents classified as ultra-secret, secret, etc., and broadening the membership of the commission overseeing classification.7 A few months later his chief of staff announced with great fanfare that the records of the now defunct Serviço Nacional de Informações, the domestic intelligence agency that was the centerpiece of the repressive apparatus under military rule, would be transferred to Brazil's National Archives.
Both events failed to live up to their advance billing as major breakthroughs that would provide full admission to the paper trail of the military dictatorship. In the case of the SNI files, it soon became apparent that records from a crucial period in 1974–75 had been "cleansed" from the archive.8 As for Lula's decree, while it was an improvement over the previous presidential order, it actually preserved the most restrictive aspects of the latter, including extended and renewable periods when "sensitive" documents could remain classified; worst of all, subsequent Law no. 11.111 retained the category of "perpetual secrecy" for documents judged to be "ultra-secret."
Many prominent individuals and organizations in Brazil and abroad (including the United Nations Commission on Human Rights) are challenging these regulations and urging the government to make all documentation from the era of military rule available. The "Movimento Desarquivando o Brasil" (loosely translated, the Movement to Declassify Brazil) has acted as an umbrella for the various groups that have registered their indignation at the continuing denial of access, as well as the government's failure to investigate the destruction of documents. The leading organization of Brazilian history professors, ANPUH, approved a motion at its most recent national symposium condemning the presidential decrees, and several eminent legal scholars have argued that the legislation violates the 1988 constitution. To quote the resolution adopted by ANPUH, "the order established by the Constitution has, thus, been completely subverted: the practice of confidentiality, now susceptible to indeterminate duration, has been converted into a right of the State, apparently counterpoised against the citizen's right to information; and what is even more serious, the decision to maintain secrecy remains under the exclusive purview of government representatives."9
Members of the military and former intelligence officials who favor keeping Brazil classified claim that the demand for access is fueled by the desire for revenge and violates the spirit of the 1979 amnesty that absolved both the regime's supporters and opponents of transgressions committed under military rule. One prominent military figure has cited the ever-handy privacy considerations, insisting that there is "nothing pretty" in the records of the dictatorship, and claiming that his concern is primarily for the regime's opponents, who might be embarrassed by details uncovered in the documentation, a remark widely interpreted as a covert threat to those seeking greater openness. A retired intelligence chief couched his opposition to opening the archives in concern for historical accuracy: he declared that the documentation is incomplete and therefore, "rather than clarify history, it would confuse history." Meanwhile, according to an article in a leading Brazilian newspaper, some officials at Itamaraty, Brazil's ministry of foreign relations, "fear that facilitating access to historical documents will be detrimental to the nation's diplomatic negotiations" and thus support the concept of eternal secrecy.10
It is hardly a surprise that some members of the military and intelligence services might seek to spare themselves and their colleagues "embarrassment" or that diplomats would prefer to pursue negotiations unhampered by awkward revelations of past indiscretions. But how do we explain the complicity or acquiescence of the Lula government to a situation in which certain government documents can remain inaccessible for all eternity?
And lest the reader think that materials of greatest interest to historians are not likely to be affected, we might note that documents from Brazil's War against Paraguay (1864–70) remain classified so that details of that bloody conflict will not damage the image of the Duke of Caxias, Brazil's leading 19th-century war hero.11 Why would Lula and his closest advisors, who courageously resisted the dictatorship at a time when it could have cost them their lives, suddenly prove susceptible to the arguments of the military and other pro-secrecy forces?
There are many possible answers to this question but, broadly speaking, I think a significant clue can be found in the resolution passed by the national association of university history professors. Lula and his advisors, now acting from the standpoint of state power, are more amenable to the view that it is the "right of the State" to make decisions regarding classification and declassification of documents. From that standpoint, the citizen—whether a historian studying the recent past or a relative of a disappeared person—becomes a potential inconvenience, someone who can cause embarrassment. Plainly and simply, declassification and facility of access to government records rarely promise benefits for those in power, and can possibly cause them considerable trouble. The resulting disinclination, combined with the continuing capacity of the armed forces to exert pressure on civilian politicians, goes a long way toward explaining the ongoing inaccessibility of documentation from the dictatorship.
That some documents might be withheld from the public for a certain period of time because declassification would tangibly compromise national security is, regrettably, something many of us regard as unavoidable in a post-9/11 world. The real problems begin when public officials, whether diplomats at Itamaraty or directors of various U.S. security agencies, conflate national interest—a very capacious category open to multiple interpretations—with national security, which is only effective and compatible with democratic practice if defined narrowly and concretely. It may well be that revelations from the War against Paraguay might reduce Brazil's "moral capital" in current negotiations with that nation, but it would be quite a stretch to equate that with a threat to national security. The withholding of documents because they might be damaging to a particular interpretation of national interest is the slipperiest of slopes, one that poses a substantial threat to the whole enterprise of historical research.
Similarly, whenever a person in power utters the phrase "privacy concerns," historians should respond with skepticism, especially in an era when state intrusion into many areas of our lives has intensified. Whose privacy is being protected by classifying historical documents, and toward what end? As we see in the case of the International Tracing Service Archive in Germany and the military-era archives in Brazil, the victims of repressive regimes, or their families, seem the most eager to open the archives to public view. There are also a variety of mechanisms for protecting the identities of private citizens while making records public. Consequently, when George W. Bush refers to privacy to justify his executive order regarding presidential papers, I must assume that we are not talking about protecting the privacy of ordinary citizens, but rather about sparing public and powerful figures from embarrassment. As with national security, "privacy" has become a fig leaf that can shield political figures from public scrutiny. Yet it is neither in the interest of the historian nor the ordinary citizen to allow those who have had the power to make critical decisions—including over matters of life and death—to escape closer inspection. In all these cases, I would argue that what's good for historians is good for democracy and human rights and in the long run, maybe even good for (trans)national security.
—Barbara Weinstein (NYU) is president of the AHA. She expresses her gratitude to Ken Serbin and Kenneth Maxwell for their help with this column and adds that "any errors committed or opinions expressed are, of course, entirely my responsibility."
1. Bruce Craig, "Historians Expose Government Reclassification Effort," Perspectives, April 2006. As soon as the extent of the reclassification process came to light, Archivist of the United States Allen Weinstein placed a moratorium on the program.
2. "An Executive Order: Hiding Presidential Papers" (editorial), San Francisco Chronicle, Nov. 11, 2001. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2001/11/11/ED81976.DTL.
3. The deadline for automatic declassification was repeatedly postponed, first under Clinton, and then under Bush, but is now in effect. However, that doesn't mean automatic access. See Jon Wiener, "Declassified in Name Only," Los Angeles Times, Jan. 4, 2007.
5. "Meeting Called on Opening Nazi Archive," Associated Press, Jan. 24, 2007. http://www.cbsnews.com/stories/2007/01/24/ap/world/mainD8MRT3OO0.shtml.
6. Articles on the various groups and institutions that have demanded open access to the military-era archives can be found on the website of the Movimento Desarquivando o Brasil http://www.desaparecidospoliticos.org.br/noticias/nt_desarquivando.html.
8. Mário Magalhães, "Papéis da ditadura somem dos arquivos," Folha de São Paulo, Feb. 4, 2007. http://www1.folha.uol.com.br/folha/brasil/ult96u89279.shtml.
9. "Pela abertura dos arquivos públicos," Motion of the Associação Nacional de História (ANPUH), July 21, 2005. The full text can be found on the Movimento Desarquivando o Brasil website (see note 6).
10. "Para general Félix, arquivos vão expor vítimas do regime," Folha de São Paulo, Nov. 14, 2004; "Cruz é contra arquivos reabertos," FSP, Oct. 24, 2004; "Planalto estuda divulgação de documentos da ditadura," FSP, Oct. 23, 2004.
11. "Paraguai pede acesso a arquivos de guerra," Folha de São Paulo, Dec. 22, 2004. Brazilian journalists and historians have noted the irony that they have easier access to documents about the Brazilian military dictatorship in the US National Archives that in Brazil's Arquivo Nacional. Fernando Rodrigues, "A dependência externa," FSP, Jan. 15, 2007.