Even the National Intelligence Director Admits Government Secrecy Is a Problem

Deception, lies and secrecy — including lies to cover secrecy — characterize authoritarian regimes. However, the politics of lying and official secrecy are no less common in democratic governments. For example, thanks to whistleblower Daniel Ellsberg releasing the Pentagon Papers, the public learned of the truth about the Vietnam War: U.S. military officials were systematically lying to Congress and the public while, at the same time, U.S. forces were committing unspeakable crimes against the Vietnamese people. But that’s not an isolated example. The U.S. government also lied about the wars in Iraq and Afghanistan. If it weren’t for independent journalism and courageous whistleblowers, we might have never known about the torture at Abu Ghraib and the U.S. spying on its own people and private citizens across the globe.

And with the 23rd anniversary of 9/11 upon us, we should also be reminded that there are still questions to be answered about Saudi Arabia’s role behind the attacks.

In the exclusive interview for Truthout that follows, Lauren Harper, the first Daniel Ellsberg Chair on Government Secrecy at the Freedom of the Press Foundation, talks about government secrecy and the role of journalism and whistleblowers in defending democracy.

C. J. Polychroniou: I’d like to start by asking you to elaborate, in broad strokes, on the problem of government secrecy, especially national security secrecy, and the extent to which it erodes the democratic process.

Lauren Harper: Information is improperly classified between 75 percent and 90 percent of the time. This prevents information sharing — sometimes vital information — between agencies, with the public, and with Congress. It’s also expensive, costing taxpayers at least $18 billion a year.

Director of National Intelligence Avril Haines has reiterated that our approach to classifying information “is so flawed that it harms national security and diminishes public trust in government.” This trust is eroded when, for example, the CIA refuses to acknowledge the existence of a drone program that is widely reported on, including in The New York Times, on the basis the programs are properly classified. It also happens when a Freedom of Information Act (FOIA) request reveals that the U.S. Marshals Service abused classification markings to obscure the nature of its cell phone surveillance program.

Congress knows excessive secrecy is a problem. There have been three bipartisan commissions since the 1950s tasked with studying it, with the Moynihan Commission on Government Secrecy in the mid-1990s being the most important. The Moynihan Commission report underscored one of the key points about government secrecy that is often under-appreciated: it is a form of government regulation. I would frame that a little differently and say secrecy is a control mechanism, and one that prevents the public from basic self-governance.

This begs serious questions about why neither Congress nor successive presidential administrations have been able to rein in excessive secrecy, either through legislation or executive order.

I’d also add that national security secrecy is compounded by other bureaucratic challenges. Examples include agencies’ records management programs, which may allow agencies to destroy records that should be public; and technical acquisition processes, which may not take long-term records preservation or eventual public access into account.

Can any case be made in defense of government secrecy in democracies?

Yes, I think that there are real secrets that require protection, but with two important caveats. The first is that nothing should be secret forever, and the second is that there are instances where information might be properly classified, but that still warrants declassification or publication because the information is in the public interest.

To your question: Information pertaining to current weapons of mass destruction (WMD) systems is a good example of information that should usually be secret. That said, I do not think there is a place for forever secrets in healthy democracies. At a certain point, everything should be processed for declassification. For example, this rationale about WMD should not be used to keep historical records on nuclear policy secret.

A large part of the overclassification problem is that most classification decisions are subjective, and the government’s insistence on keeping too many secrets erodes its ability to maintain the necessary ones. Embracing the principle and practice of temporary secrecy would help this.

The number of documents marked as “Classified” or “Secret” has been increasing dramatically since 9/11. Moreover, journalists seem reluctant to publish classified information even though the Supreme Court in 1971 ruled that the government cannot restrain the press from publishing classified documents under the First Amendment. Is it because of the decline of independent media that we see few journalists go public with classified scoops?

You raise an interesting point, which is that we have no idea how many documents are classified — whether it’s at the confidential, secret, or top-secret level. The last time these numbers were published was fiscal year 2017, but the agency that reported these figures, the Information Security Oversight Office, decided to stop collecting the data because the figures it received from agencies was of such poor quality that the numbers were essentially meaningless. Currently, federal agencies can’t account for how many secrets they generate and maintain, and nobody is forcing them to do so.

In terms of issues faced by the press, independent or otherwise, I think there are at least four significant hurdles. The first major obstacle is that the government has grown more adept at surveilling its employees and monitoring their communications, their devices, etc. The second hurdle is the threat whistleblowers face of prosecution under the Espionage Act for sharing classified information with the press. And after the Julian Assange case, journalists justifiably fear they’ll be prosecuted as well. The third is related, which is the failure to pass the PRESS Act, which would shield journalists from federal court orders to disclose their sources and from federal government surveillance of their communications. The final barrier is the deference shown to government claims that documents are properly classified in the first place. As I said above, most classification decisions are subjective, and an interagency panel that reviews agency classification decisions historically overturns them 75 percent of the time. Yet we collectively seem to take the government’s claim that information is classified at face value, and that needs to change. Journalists need to question the validity of classification decisions more; so does Congress, and so do the judges that rule in these kinds of cases.

Reporting on excessive secrecy also needs to be an ongoing beat. Think of it this way: People in the intelligence community and elsewhere work tirelessly their entire careers to keep information secret. Occasional reporting on specific examples of excessive secrecy is not enough to challenge that systemic tide.

In a system like ours, where powerful vested interests have a dominant presence in every realm of public policy and government officials withhold information in order to deceive the public, are whistleblowers democracy’s last defense?

Whistleblowers and advocates for whistleblower protections are key lines of defense, but they face serious challenges. For example, the Department of Justice spied on congressional aides in an attempt to identify agency whistleblowers. That has to have a serious chilling effect on government whistleblowers who are considering working with Capitol Hill — and on members of Congress who would consider leaking to the press. (It’s also worth mentioning that while there are established whistleblower protections in the executive branch, there is no corollary for the legislative branch.)

Whistleblowers are important, but their protections are not as robust as they should be, and these individuals should not face — or be expected to carry — the burden of fixing a system-wide crisis.

The Senate Intelligence Committee’s full report on the CIA’s torture program is still secret, and the CIA never faced any meaningful repercussions for spying on Senate staff trying to investigate.

We need more tools at our disposal. A key one is continuing to fight for the Freedom of Information Act to work the way it should, and that requires mandating that agencies actually embrace automation. We also need language — either in statute or executive order — that clearly defines what “damage to national security” means when agencies are making classification decisions.

Another potential tool to help reduce government secrecy is exploring the use of artificial intelligence (AI) to declassify large swathes of older documents. I’m not at the point where I am an evangelist on the use of AI in declassification and FOIA decisions, because we run the risk of AI being trained on poor-quality human decisions. So while it’s worth exploring,AI is an area in which the government needs to work with civil society to make sure the technology doesn’t just exponentially increase bad declassification decisions.

In your opinion, why did it take so long to open up the government’s secret files on the potential link of the Saudi government to the 9/11 plot? And why is it that the government has only released a copy of a document on the case that has been heavily redacted? Do we have here yet another case of government secrecy over the 9/11 terrorist attacks?

The same reason the government usually resists disclosing uncomfortable information. It wants to avoid facing public scrutiny or damaging a relationship with a foreign government whose alliance the U.S. government still maintains is critical in achieving its foreign policy goals.

And yes, we have secrecy surrounding 9/11 — just take a look at the 9/11 Commission Report and how many footnotes in it mention documents that are still classified. More broadly, we still have entrenched government secrecy about the post-9/11 world the U.S. created. For example, The New Yorker just published photos of the 2005 massacre of 24 civilians carried out by Marines in Haditha, Iraq, and which spawned one of the largest war crimes investigations in U.S. history. The New Yorker sued for photos, which were taken by Marines in the aftermath of the massacre, to try and understand why murder charges against the Marines were dropped. The FOIA lawsuit for the release took four years; but others had filed FOIA requests for records about Haditha and those photos nearly 20 years ago, and the government never released them. Most alarming? The commandant of the Marine Corps said in 2014 that he was proud that the photos had never been released, and that he’d learned — presumably about the dangers of release — from the Abu Ghraib prison photos.

We still know very little about the CIA’s torture program. Jose Rodriguez, who ran the CIA’s torture program and whom the former CIA head, Gina Haspel, reported to, famously said in 2005 that “the heat from destroying” the video evidence of waterboarding Guantánamo prisoner Abu Zubaydah “is nothing compared to what it would be if the tapes ever got into public domain.” Moreover, the Senate Intelligence Committee’s full report on the CIA’s torture program is still secret, and the CIA never faced any meaningful repercussions for spying on Senate staff trying to investigate.

What are we doing wrong when: 1) government officials think we are better off destroying or burying evidence of our actions, and 2) there is no meaningful ramification for agencies and officials for engaging in bad behavior?