At the close of its session, Congress considered two bills addressing classified information. One had been pending for more than a year, had more than a hundred co-sponsors, was the subject of two lengthy hearings and received virtually unanimous approval in amended form from the House Judiciary Committee. The other was quietly attached to an intelligence authorization bill and was never the subject of public hearings. But secrecy has a way of trumping democracy, and the latter, which one member of Congress accurately termed an "official secrets act," passed, while the former, which would have restricted government reliance on classified evidence in immigration proceedings, died on the floor. At press time it was unclear whether Clinton would sign or veto the secrecy bill.
The Intelligence Authorization Act would make it a felony for government officials to disclose any "properly classified" information. That is eminently reasonable. By law, information may be classified only if its release would threaten national security, and officials with security clearances should not be allowed to abuse that authority by releasing information that imperils the nation.
But in practice, information is often classified that has no real potential for undermining national security, as is routinely demonstrated when leaks are made public without the sky falling. Because the entire process is secret, there is no effective check on classification decisions. The Clinton Administration--which has actually been more sensitive to the problem of overclassification than many of its predecessors--created more than 8 million new secrets in 1999 alone. And once a secret is classified, it is often decades before it is declassified, if ever.
Examples abound of improperly classified information. The most notorious is the Pentagon Papers. Erwin Griswold, Solicitor General under President Nixon, who argued the Pentagon Papers case for the government, later admitted that he had not "seen any trace of a threat to the national security" from their publication. His extensive experience with classified information taught him that "there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another."
The new criminal penalties will only exacerbate the problem. Under prior law, government officials could lose their security clearances and jobs for disclosing classified material, but Congress had always reserved criminal penalties for leaks of the most sensitive sort--national defense information, the names of spies and the like. The new law makes it a crime to disclose the most mundane classified information, thereby greatly increasing the incentives to classify for the wrong reasons, since the criminal sanction will silence potential whistleblowers.
The bill that did not pass, the Secret Evidence Repeal Act, would simply have required immigration officials to meet the same standards of fairness in using classified information in immigration proceedings that government officials must satisfy in criminal cases. Under current practice, immigration officials assert the authority to lock up and deport immigrants on the basis of classified evidence, presented behind closed doors to an immigration judge, without any disclosure to the immigrant or his lawyers. The Secret Evidence Repeal Act would have required the government to disclose a summary of the evidence, which would provide the immigrant with "substantially the same ability to make his defense" as would the classified evidence itself.
Here, too, one of the principal problems is overclassification. FBI officials routinely classify all information gathered during a "counterterrorism" investigation, including even routine newspaper clippings. When the FBI fails to come up with evidence to support a criminal charge, it often asks the INS to seek deportation, turning over the classified results of its counterterrorism investigation. The INS then presents that evidence behind closed doors in immigration proceedings. When the government's actions are vigorously challenged, however, it virtually always finds itself able to disclose much of the evidence. And in many of those cases, what is disclosed is far more often simply embarrassing to the government than related to national security.
Secrecy is anathema to the adversarial process and a healthy democracy. In courtrooms it thwarts the search for truth. And in the public arena secrecy allows government officials to avoid public scrutiny. In both areas secrecy often leads to sloppy thinking and disastrous results. At the same time, secrecy breeds skepticism and paranoia among government critics. As Lord Acton said, "Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity."
David ColeAt the close of its session, Congress considered two bills addressing classified information. One had been pending for more than a year, had more than a hundred co-sponsors, was the subject of two lengthy hearings and received virtually unanimous approval in amended form from the House Judiciary Committee. The other was quietly attached to an intelligence authorization bill and was never the subject of public hearings. But secrecy has a way of trumping democracy, and the latter, which one member of Congress accurately termed an “official secrets act,” passed, while the former, which would have restricted government reliance on classified evidence in immigration proceedings, died on the floor. At press time it was unclear whether Clinton would sign or veto the secrecy bill.
The Intelligence Authorization Act would make it a felony for government officials to disclose any “properly classified” information. That is eminently reasonable. By law, information may be classified only if its release would threaten national security, and officials with security clearances should not be allowed to abuse that authority by releasing information that imperils the nation.
But in practice, information is often classified that has no real potential for undermining national security, as is routinely demonstrated when leaks are made public without the sky falling. Because the entire process is secret, there is no effective check on classification decisions. The Clinton Administration–which has actually been more sensitive to the problem of overclassification than many of its predecessors–created more than 8 million new secrets in 1999 alone. And once a secret is classified, it is often decades before it is declassified, if ever.
Examples abound of improperly classified information. The most notorious is the Pentagon Papers. Erwin Griswold, Solicitor General under President Nixon, who argued the Pentagon Papers case for the government, later admitted that he had not “seen any trace of a threat to the national security” from their publication. His extensive experience with classified information taught him that “there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.”
The new criminal penalties will only exacerbate the problem. Under prior law, government officials could lose their security clearances and jobs for disclosing classified material, but Congress had always reserved criminal penalties for leaks of the most sensitive sort–national defense information, the names of spies and the like. The new law makes it a crime to disclose the most mundane classified information, thereby greatly increasing the incentives to classify for the wrong reasons, since the criminal sanction will silence potential whistleblowers.
The bill that did not pass, the Secret Evidence Repeal Act, would simply have required immigration officials to meet the same standards of fairness in using classified information in immigration proceedings that government officials must satisfy in criminal cases. Under current practice, immigration officials assert the authority to lock up and deport immigrants on the basis of classified evidence, presented behind closed doors to an immigration judge, without any disclosure to the immigrant or his lawyers. The Secret Evidence Repeal Act would have required the government to disclose a summary of the evidence, which would provide the immigrant with “substantially the same ability to make his defense” as would the classified evidence itself.
Here, too, one of the principal problems is overclassification. FBI officials routinely classify all information gathered during a “counterterrorism” investigation, including even routine newspaper clippings. When the FBI fails to come up with evidence to support a criminal charge, it often asks the INS to seek deportation, turning over the classified results of its counterterrorism investigation. The INS then presents that evidence behind closed doors in immigration proceedings. When the government’s actions are vigorously challenged, however, it virtually always finds itself able to disclose much of the evidence. And in many of those cases, what is disclosed is far more often simply embarrassing to the government than related to national security.
Secrecy is anathema to the adversarial process and a healthy democracy. In courtrooms it thwarts the search for truth. And in the public arena secrecy allows government officials to avoid public scrutiny. In both areas secrecy often leads to sloppy thinking and disastrous results. At the same time, secrecy breeds skepticism and paranoia among government critics. As Lord Acton said, “Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.”
David ColeTwitterDavid Cole is The Nation’s legal affairs correspondent, and national legal director of the American Civil Liberties Union.