One of the most persistent challenges of U.S. national security policy is balancing the short-term benefits of secrecy with the long-term benefits of openness. Government agencies responsible for dealing with national security threats will often be more effective if they are allowed to keep certain details about their activities secret. But openness is not just a cherished American value; it is a core element of American strength. Government officials who ignore this fact and insist on secrecy whenever it seems convenient will serve their agencies and their country poorly.
In Democracy in the Dark, Frederick Schwarz, Jr., has produced a thoughtful, authoritative account of this problem, focusing on the troubling consequences of excessive secrecy. In the mid-1970s, Schwarz, a veteran lawyer, served as the chief counsel to the Church Committee, a Senate body that examined U.S. intelligence activities and revealed significant abuses, laying the foundation for major reforms, including expanded congressional oversight of the intelligence agencies. Schwarz addresses his topic with a thorough and evenhanded approach, and his work is a must-read for anyone interested in a detailed treatment of this subject.
Schwarz strengthens his analysis by acknowledging at the outset that there can be legitimate reasons for keeping certain information secret from the public. Americans today do not expect the Obama administration to reveal the details of troop movements in Afghanistan any more than early Americans expected George Washington to disclose his strategy for the Battle of Yorktown. The challenge is to figure out where to draw the line between genuinely important secrets and information that would be unwise or improper to withhold from the public. As Schwarz makes clear, U.S. policymakers and intelligence officials have too often drawn that line in the wrong place, unjustifiably concealing information that the public has a need and a right to know. “Too much is kept secret not to protect America,” he writes, “but to keep embarrassing or illegal conduct from Americans.”
THE PERILS OF SECRET LAW
In considering the line between justifiable and excessive secrecy, a particularly important distinction must be made between secret operations and secret law. Although most Americans recognize that it will sometimes be appropriate for government agencies to rely on secret sources and methods to gather important information, they also expect those agencies to operate within the boundaries of publicly understood laws. In other words, government officials need not reveal all the details of sensitive activities, as long as they follow rules that the public can understand. When government officials instead rely on secret, expansive interpretations of the law that are inconsistent with the law’s plain meaning, they violate a fundamental principle of democracy and should not expect the public’s support.
An obvious recent example of this was the decision by executive-branch officials during the past decade to conceal the secret interpretation of the U.S.A. Patriot Act that they were using to justify the dragnet surveillance of millions of law-abiding Americans by the National Security Agency (NSA)—surveillance that The Guardian and The Washington Post publicly revealed in 2013. Concealing the government’s true understanding of the law represented a clear violation of the public trust. Furthermore, both the surveillance itself and the secrecy surrounding it contributed to an erosion of public confidence in the country’s intelligence and law enforcement agencies, which will make it harder for them to do their jobs.
Secret law also played a role in the CIA’s post-9/11 use of torture. Legal memos drafted by Justice Department officials in 2002 secretly reinterpreted the word “torture” to authorize a variety of ill-considered CIA interrogation tactics. This undermined U.S. credibility on human rights issues, complicated Washington’s relationships with a variety of foreign partners and allies, and served as fodder for terrorist recruiting efforts.
Some have suggested that relying on secret interpretations of the law is acceptable as long as the executive branch discloses these interpretations to a limited number of federal judges and members of Congress.In both cases, keeping the public in the dark allowed problematic and unnecessary programs to go on much longer than they otherwise would have. In secret presentations to congressional committees and White House officials in both the George W. Bush and the Obama administrations, intelligence agencies made greatly exaggerated claims about the usefulness of mass surveillance and torture. These mischaracterizations crumbled quickly when they were publicly exposed, but they were allowed to fester for years under a veil of secrecy.
Some have suggested that relying on secret interpretations of the law is acceptable as long as the executive branch discloses these interpretations to a limited number of federal judges and members of Congress. Michael Hayden, a former director of the NSA, has even defended this approach as a “Madisonian trifecta.” This alarming view disregards the vital role of public accountability in a democracy. As voters, U.S. citizens must be able to learn both what the law says and what government officials think the law means, so that citizens themselves can decide when laws need to be changed. The use of secret law short-circuits that fundamental process.
HIDING BEHIND SECRECY
In some cases, the main reason for keeping important information secret has been to avoid public criticism or questioning or to prevent embarrassment to agencies or individuals. It is appropriate to keep secrets to protect national security, but officials have too frequently kept secrets to protect their own political security instead. In 1938, FBI Director J. Edgar Hoover wrote a memo, later read by President Franklin Roosevelt, urging that the expansion of the FBI’s power to investigate “subversive” Americans should be handled “with the utmost degree of secrecy in order to avoid criticism or objections.” In recent years, officials have been more careful to avoid citing such concerns as a justification for secrecy. But those who lack the courage to subject their plans to public scrutiny have often exaggerated the sensitivity of potentially controversial programs in order to avoid disclosing them. Schwarz suggests that was the case with the secret domestic surveillance programs exposed by the Church Committee and with post-9/11 activities such as torture and warrantless wiretapping.
The damage done when government agencies withhold information to escape scrutiny or embarrassment is compounded by a growing impression that a double standard exists: unlawful disclosures aimed at making intelligence agencies look good go unpunished, whereas unauthorized revelations by critics of particular policies or programs lead to harsh punishments. The Senate Intelligence Committee’s recent report on the use of torture by the CIA cites numerous internal communications in which officials arranged to selectively provide highly classified information about CIA interrogations to particular reporters in order to ensure favorable press coverage. It is safe to say that any critic of CIA interrogations who chose to disclose information in this manner would have been fired and probably prosecuted.
In addition to serving as a barrier to democratic accountability, keeping embarrassing facts and expansive legal interpretations secret is incredibly shortsighted. Some legislators who knew the truth about the NSA’s mass domestic surveillance warned that the secrecy surrounding it was not sustainable and would inevitably lead to a public backlash. But the departments and agencies involved collectively acted as if they could conceal the truth forever and as if the public could be deceived indefinitely with no consequences.
In addition to disregarding the impact of this surveillance on Americans’ privacy, senior officials failed to recognize how it could erode public trust in the government—and how badly it could impact the U.S. economy. The American high-tech sector—one of the most innovative and successful fields in the country—is now reeling from the public reaction to recklessly broad surveillance practices. The Internet companies that have served as an engine of economic growth rely on consumer trust. People are willing to share their personal information with these firms only because they have confidence that it will be adequately protected. The NSA’s dragnet surveillance of millions of law-abiding people has greatly undermined that trust. At a roundtable in Palo Alto last year, Eric Schmidt, the chair of Google, publicly warned that the fallout from these prac- tices could “end up breaking the Internet.”
Of course, although intelligence officials should not be the final arbiters of the costs and benefits of secrecy, they must never actively deceive the public or Congress about what they do.In response to the backlash from consumers in the United States and overseas who felt betrayed by the broad scope of the NSA’s activities, many firms are now aggressively resisting surveillance efforts and contesting surveillance orders in court. Many companies are also increasing their use of encryption, in part to make themselves and their customers less vulnerable to secret surveillance, a move that senior FBI officials have publicly complained will hinder their investigations.
This outcome perfectly illustrates the counterproductive nature of excessive secrecy. If the expansion of the NSA’s power to surveil Americans had been subjected to open, democratic debate, the agency probably would not have gotten everything that it wanted. But many of the bigger problems now facing the U.S. government could have been avoided.
Defenders of mass surveillance sometimes argue that the problem is not the surveillance itself but its public exposure, and they blame leakers and the press for the backlash. But as Schwarz’s detailed history demonstrates, secret programs do not stay secret forever. Any U.S. official who believed that mass surveillance could be concealed from the public indefinitely was being naive.
In this instance, as in many others, excessive secrecy was the result of policymakers deferring too much to the judgment of intelligence officials in determining what information should remain classified. Doing so actually did a disservice to those officials, by placing an unreasonable burden on them. Intelligence professionals are charged with collecting and analyzing various types of information. It is entirely reasonable to seek their input when determining whether information relevant to their work should become public or remain classified. But it is neither fair nor appropriate to ask intelligence officials to balance the narrow benefits of secrecy with the broader benefits of transparency and public trust, or to weigh the potential impact of their activities on U.S. businesses or on Washington’s relationships with close allies. That balancing should remain the responsibility of the policymakers who are charged with negotiating these competing priorities; delegating the task to intelligence officials is unlikely to end well.
Of course, although intelligence officials should not be the final arbiters of the costs and benefits of secrecy, they must never actively deceive the public or Congress about what they do. A number of senior officials have at times exacerbated the problem of excessive secrecy by making inaccurate or misleading statements about the scale and scope of their activities and then failing to correct those statements when asked to do so.
THE BEST DISINFECTANT
Fortunately, although there are many causes of excessive secrecy, there are also many things that can help correct it. Perhaps the most important are checks on executive power. The executive branch has a tendency to concentrate information and power in its own hands. But presidents can also rein in the executive branch’s own worst impulses. President Bill Clinton issued executive orders aimed at reducing excessive secrecy, and President Barack Obama has done the same. Meanwhile, advisory bodies such as the Public Interest Declassification Board and the various blue-ribbon panels that have examined government secrecy can make recommendations that help drive reforms, such as the establishment of the National Declassification Center at the National Archives, which Obama set up in 2009 at the PIDB’s suggestion.
The executive branch will almost always seek to protect its secrets and warn that revealing them will harm national security. And sometimes such warnings will be justified. But citizens, Congress, the courts, and journalists have an obligation not to simply accept those arguments at face value.Congress, too, can take action. Although congressional efforts to legislate systemic reforms regarding secrecy have been somewhat limited, Congress has often succeeded in forcing the disclosure of particular information by negotiating agreements with the executive branch or by legally mandating the release of certain documents, such as the CIA inspector general’s report on 9/11. (Congress also maintains the authority to disclose information over the executive branch’s objections, but doing so requires the consensus of a significant number of members.) Federal courts can also order the disclosure of information, particularly in response to cases brought against the government under the Freedom of Information Act. Although the FOIA process places plenty of obstacles in the way of anyone seeking more transparency, it has led to a number of high-profile government disclosures over the years, including the recent public confirmation of the CIA’s role in conducting drone strikes overseas.
The free press also serves as an important check on excessive secrecy. Unauthorized disclosures by journalists are the source of significant controversy, particularly among government officials. And Schwarz identifies a number of harmful press disclosures, including some that clearly jeopardized individual lives, such as an instance in 1943 when press reports revealed that a tactical error was making Japan’s depth charges less effective against U.S. submarines. It is important to recognize, however, that the press can also serve as an important corrective when information is improperly concealed from the public, Congress, and the courts. Both the NSA’s warrantless wiretapping program and the CIA’s secret prisons were brought to the attention of most members of Congress by investigative journalists, not by notifications from the executive branch. And in both cases, the public exposure of these programs was the impetus for significant reform efforts that would not otherwise have taken place.
The executive branch will almost always seek to protect its secrets and warn that revealing them will harm national security. And sometimes such warnings will be justified. But citizens, Congress, the courts, and journalists have an obligation not to simply accept those arguments at face value, particularly given the executive branch’s long history of exaggeration. Sometimes, of course, both secrecy and openness might lead to negative consequences. When faced with that dilemma, policymakers and legislators have too often deferred to intelligence officials’ natural preference for greater secrecy instead of carefully weighing which course of action would better serve the public.
Still, Schwarz sees “reasons for optimism about the possibility of changing the pervasive secrecy culture.” The national security bureaucracy might classify more information today than ever before, but the post-9/11 era has also witnessed a sea change in public awareness of secrecy’s costs. In particular, the revelations of the NSA’s widespread domestic surveillance have struck a nerve: secrecy is no longer an obscure niche issue; it is a central policy concern. Many ordinary Americans have grown impatient with those who reflexively defend secrecy and advise the public to simply trust policymakers and intelligence officials to make the right decisions. Officials who attempt to make that argument should read Schwarz’s book; at the very least, it will remind them that history is rarely kind to champions of excessive secrecy.
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