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Most Americans appreciate the need to keep secret national security information whose disclosure would pose a genuine risk of harm. But as the 9/11 Commission concluded, too much secrecy can put our nation at greater risk, hindering oversight, accountability, and information sharing.
Excessive secrecy conceals our vulnerabilities until it is too late to correct them. It slows the development of the scientific and technical knowledge we need to understand threats to our security and respond to them effectively. It short-circuits public debate, eroding confidence in the actions of the government. It undermines the credibility of the information security system itself, encouraging leaks and causing people to second-guess legitimate restrictions.
The Commission on Protecting and Reducing Government Secrecy, chaired by Sen. Daniel Patrick Moynihan (D-NY), and on which I served, concluded that “The best way to ensure that secrecy is respected, and that the most important secrets remain secret, is for secrecy to be returned to its limited but necessary role. Secrets can be protected more effectively if secrecy is reduced overall.”
Government secrecy serves its proper and necessary function when it is reserved for situations in which there is an identifiable risk to national security. In other words, it should be used to keep secret only that which genuinely needs to be kept secret.
One of Sen. Moynihan’s key insights was that secrecy is really “a mode of regulation.” But it differs from more familiar forms of regulation in that “the citizen does not even know that he or she is being regulated. Normal regulation concerns how citizens must behave, and so regulations are widely promulgated. Secrecy, by contrast, concerns what citizens may know; and the citizen is not told what may not be known.”
The result, said Moynihan, is “a parallel regulatory regime with a far greater potential for damage if it malfunctions.”
Over the past seven years, the American people have come to understand what he meant. During this period, the Bush administration has increased secrecy and curtailed access to information through a variety of means, including by:
- Issuing an executive order that encouraged the overclassification of government information by shifting the presumption in favor of classification
- Slowing the pace of automatic and systematic declassification of government records, from a high-water mark of 204 million pages in 1997 during the Clinton administration to only 37 million in 2007
- Presiding over an explosion in the use of “controlled unclassified” markings, most of which have never been authorized by statute, to restrict access to unclassified information
- Withdrawing from public view thousands of pages of information that had previously been unclassified and available to the public through the Internet
- Interpreting the Freedom of Information Act in a manner that has undermined the presumption favoring disclosure
- Failing to preserve millions of White House communications as required by the Presidential Records Act and issuing an executive order that impedes the access of historians and the public to the records of past administrations
- Invoking executive privilege, the state secrets privilege, and other common law privileges, to cover up administration misdeeds and deny plaintiffs their day in court
- Threatening journalists, whistleblowers, and other private citizens with criminal prosecution for the possession or publication of national security information; and perhaps most egregious of all, the issuance of secret orders and legal opinions to shield illegal actions from public scrutiny
The obsessive secrecy of the Bush administration has damaged not only the security it was ostensibly meant to protect but also the rule of law that enables our society to maintain its internal stability and cohesion.
The rule of law can thrive only in an open society in which the laws are known and understood; government actions are taken, insofar as possible, in full view of the public and subject to scrutiny and debate; and government officials are held accountable for the arbitrary or unscrupulous exercise of power. The rule of law requires that Congress, the courts, the public, and the press have access to the information they need to serve as effective checks on the executive branch. Without such information, there can be no checks and balances. Unless the people know what their government is doing, there can be no rule of law.
My written testimony proposes a series of steps by which Congress and the next president can address each of these problems, and I welcome the opportunity to discuss them with you.
The key recommendations include the following:
- Overclassification. The next president should rewrite Executive Order 13292 to reinstate the provisions of Executive Order 12958 that establish a presumption against classification in cases of significant doubt, permit senior agency officials to exercise discretion to declassify information in exceptional cases where the need to protect the information is outweighed by the public interest in disclosure, and prohibit reclassification of material that had been declassified and released to the public under proper authority.
- Controlled unclassified information. At a minimum, the next president should issue a new memorandum that creates a presumption against the designation of controlled unclassified information, and Congress should enact legislation to reduce the use of unclassified information control markings and establish an orderly process that would discourage their misuse and maximize public access to unclassified information. Better still, Congress should give serious consideration to getting rid of these designations altogether.
- Freedom of Information Act. The next president should direct the attorney general to revoke the Ashcroft memorandum and restore the presumption in favor of disclosure when there is no foreseeable harm to an interest protected by the exemption. If the president fails to take this step, Congress should amend FOIA to codify the presumption.
- Presidential records. The next president should revoke Executive Order 13233, removing the ability of heirs and children of former presidents to block access to presidential records and eliminating the new vice presidential privilege. If the president does not act, Congress should amend the Presidential Records Act to codify this change. Congress also should enact legislation to tighten the standards and procedures for preservation of electronic records and to include enforcement measures for noncompliance.
- State Secrets Privilege. Congress should consider statutory provisions to direct courts to weigh the costs and benefits of public disclosure in considering executive branch assertions of the State Secrets Privilege.
- Secret law. The next president should direct the attorney general to issue a memorandum indicating that Office of Legal Counsel opinions will not be withheld from Congress under any theory of privilege, and that there will be a presumption of public disclosure unless disclosure would pose a genuine risk of harm to national security. Congress should enact S. 3405, the Executive Order Integrity Act, to make it unlawful for the president to secretly modify or revoke a published executive order.
- Whistleblower and press protections. Congress should strengthen the Whistleblower Protection Act of 1989 to protect public employees from reprisal when they publicly disclose information regarding government wrongdoing or when they disclose classified information about government wrongdoing to members of Congress who are authorized to receive such information. Congress also should enact legislation to establish a qualified journalist-source privilege.
Taken together, these measures will help ensure that the government keeps secret only what needs to be secret. In so doing, they will enhance both openness and security while restoring respect for the rule of law. Thank you.
Read the full testimony (pdf)