Shapiro & Goitein: Classification and Consequences
Got a plan to open up government? The president wants to give you a prize. A new memo from the Office of Management and Budget says federal agencies should hand out awards to those who come up with ideas to roll back government secrecy. Similar contests, says the memo, brought fresh thinking on such things as lunar landers, space elevators and astronaut gloves.
[IMGCAP(1)]President Barack Obama should be commended for encouraging open government. But while prizes may spur innovation, we need sticks as well as carrots to reduce government secrecy. Any meaningful reform must include a vital element that has been lacking for decades: consequences for those who wrongly hide information from the public. In particular, consequences would limit needless classification of documents by curbing overuse of the “SECRET” and “TOP SECRET” stamps.
In December, Obama replaced the Bush administration’s executive order on the classification and declassification of documents with one of his own. Now, the government cannot classify a document if “significant doubt” exists about the need to hide it, and “no information may remain classified indefinitely.” Obama ordered agencies to review their policies on secret documents. These are important steps in the direction of reform.
But Obama did not touch the part of the Bush order called “Sanctions,” nor did he require officials to supply reasons for classifying documents. Government employees can still block disclosure merely by invoking talismanic categories, like “foreign government information.”
The incentives remain skewed toward secrecy. Officials risk little when they classify documents. Some do so to avoid embarrassment. The Bush administration, for example, classified Gen. Antonio Taguba’s chilling report on Abu Ghraib, and thus kept the public in the dark about acts of torture. Others veil records because they fear reprimand for revealing too much, but not for concealing too much. And officials sometimes find it easier to conceal entire documents — including pages of harmless information — rather than spend time segregating the sensitive parts from the non-sensitive ones. All of this feeds massive over-classification. Experts of all political stripes say nine in 10 secret documents should not be classified.
Pointless secrets threaten our safety by blocking the flow of information within government. It is important to protect the privacy of law-abiding Americans. But information about true threats to security must be available to the appropriate governmental officials. As the 9/11 commission warned, excessive secrecy stymies information exchange between federal agencies and makes it harder to connect the dots.
What’s more, secrecy keeps voters in the dark. The Bush administration held on to classified Justice Department memos that signed off on waterboarding and other forms of torture. A classified program shunted people off to secret prisons in foreign countries, where they suffered even more brutal interrogations. A classified program let the government spy on phone calls without warrants. Government by the people can exist only if the people know what their government is doing, but the “top secret” stamp has become a tool of closed institutions.
There is a better way. First, officials should be required to justify their use of secrecy. To accept a stock phrase like “foreign government information” is to enable lazy thinking and a system of classification by default. By contrast, people compelled to detail in writing their reasons for classifying documents must think through — and justify — their choices. At times, the very act of trying to articulate a reason would convince an official that the reason was not powerful enough to warrant hiding information.
Second, there should be a system in place to audit the classifiers and impose consequences where necessary. Those who secrete papers away without sufficient reason must face discipline — training or a note in their personnel file at first, but in extreme or recurring cases, revocation of their classification authority or even dismissal.
The window for change remains open — an executive branch office must still issue a directive to implement Obama’s order. As reform moves ahead, the administration should bear in mind the words of the 9/11 commission, which concluded that the lack of consequences for excessive secrecy left us exposed to attack: “There are no punishments for not sharing information.”
David Shapiro and Elizabeth Goitein are attorneys at the Brennan Center for Justice at New York University School of Law.