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Secrecy Poisoning American Democracy

Jay Stanley,
Senior Policy Analyst,
ACLU Speech, Privacy, and Technology Project
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July 28, 2011

A new report that we’re releasing today makes the case that out-of-control secrecy is a serious disease that is hurting American democracy. More and more of our government’s actions are being hidden from the people who are supposed to be ultimately in charge of that government. A story about attempts to uncover secret laws in today’s Washington Post shows just how timely our report is.

Consider: there are more than 2.4 million personnel holding security clearances. The number of classified documents has exploded in the past decade, and the government spent over $10 billion in 2010 on security classification activities. While there is a narrow band of information that the government can legitimately keep secret – such as information about military weaponry, tactical movements and defensive plans – our government routinely classifies vast quantities of information that go way beyond such categories. Cases of the government declaring information “secret” that are just plain silly regularly come to light. Classification is regularly used not to protect the national interest, but to protect the bureaucratic interests of particular agencies and particular administrations. It is regularly abused to manipulate the American public on behalf of those interests.

This is a problem not just civil libertarians are worried about – it’s one that has been widely and repeatedly recognized across the political spectrum, and even by those at the center of our security establishment.

For example, former Bush Administration CIA Director Porter Goss admitted, “we overclassify very badly.” Bush’s Director of National Intelligence Dennis Blair stated that “there is a great deal of overclassification…. We need to do fundamental work on the system.” Thomas Kean, chairman of the 9/11 Commission (and former Republican governor of New Jersey) observed, “You’d just be amazed at the kind of information that’s classified – everyday information, things we all know from the newspaper… We’re better off with openness.”

But, the problem has never been truly tackled and has only gotten worse.

When President Obama came into office, he promised a new era of openness in American government. Since that time, his administration has taken some positive steps toward that goal – but has also slid backwards on a number of fronts, frequently passing up opportunities for bold action to address secrecy in favor of timid and incremental steps. Overall, the administration has failed to make a dent in this enormous problem.

This failure just confirms it: nibbling around the edges of this alarming problem will not cut it, drastic measures are required.

Today, we’re releasing a report on this subject with just that title: “Drastic Measures Required: Congress needs to Overhaul U.S. Secrecy Laws and Increase Oversight of the Secret Security Establishment”

In the report, we lay out the scope of the problem and analyze its unfortunate consequences for the operation of our government, for our national security, and for our democracy at large. The report asserts that Congress must overhaul U.S secrecy laws and increase its oversight of the secret security establishment in order to rein in the out-of-control secrecy that is poisoning our democracy. We present a number of detailed recommendations for how, exactly, Congress should act to reform the “state secrets privilege,” strengthen Congressional oversight of national security programs, and regulate the use of classification by the executive branch. (If you want some backup for the broad statements I made at the top of this blog, it’s all in the report.)

The right to see what our government is doing is one of the most fundamental checks and balances in our system of government. At the same time, the ability to make things secret is a very significant power. Like all significant powers, is inevitably abused unless it’s subject to very rigorous checks and balances. That has not been happening and the situation is getting worse.

Congress has approved trillions of dollars for efforts to secure the nation from terrorist attacks. You would think that the disease of secrecy eating away at our system of open government would be an issue of the highest priority. After all, excessive secrecy has led to tragically misguided decisions that have harmed this nation more than any terrorist attack. As former Secretary of State Colin Powell put it, terrorists “are dangerous criminals, and we must deal with them,” but “the only thing that can really destroy us is us.”

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