The past eight years of the George W. Bush Administration have seen significant restrictions of individual liberty. Much of the impetus for these restrictions has come from the tragedy of September 11 and its complex aftermath: War inevitably magnifies the tension between individual liberty and national security. But there are wise and unwise ways to strike the appropriate balance. In the years since September 11, the Bush Administration has embraced a series of policies–including torture, aggressive surveillance of international communications, clandestine detention of American citizens, secret prisons in Eastern Europe, closed deportations proceedings, and restrictions on the writ of habeas corpus–that have unnecessarily undermined the fundamental American value of individual liberty.
However, the most unfortunate policy of the Bush Administration in terms of American liberty has been its deliberate and consistent effort to hide some of its most important policy decisions from the American public. Of course, there are legitimate reasons to keep certain information secret to protect the national security. But secrecy can also be used to evade responsibility and to manipulate and distort public debate and understanding. Overbroad government assertions of secrecy can cripple informed public debate. It is impossible for citizens responsibly to consider the merits of the actions of their elected representatives if they are kept in the dark about their conduct. As Sen. Daniel Patrick Moynihan once observed, “Secrecy is the ultimate form of regulation because people don’t even know they are being regulated.” This has been a legacy of the Bush Administration.
In a studied effort to circumvent the constraints of separation of power, judicial review, checks-and-balances and democratic accountability, the administration has systematically promulgated programs in secret, denied information to Congress, abused the classification process, narrowly interpreted the Freedom of Information Act, redacted vast quantities of information from government websites, disciplined government whistleblowers, jailed journalists for refusing to disclose their confidential sources, threatened to prosecute the press for revealing the Administration’s secret programs, and broadly invoked executive immunity and the state secrets doctrine to prevent both Congress and the courts from evaluating the lawfulness of its programs. By shielding its decisions from legal, congressional and public scrutiny, the Bush Administration has undermined the single most central premise of a self-governing society: It is the citizens who must evaluate the judgments, policies and programs of their representatives. As James Madison observed, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both.”
The Obama Administration offers an opportunity to reconsider this posture and regain the appropriate balance between secrecy and the public’s right to know. With the past eight years in mind, we need to reevaluate some of our government’s practices and policies in order to re-establish the nation’s commitment to transparency, accountability, and informed public deliberation, which are fundamental to individual liberty.
A nation at war may exercise extraordinary authority to conscript soldiers, commandeer private property, control prices, ration food, raise taxes, freeze wages, and send young men and women off to fight and perhaps to die in far-off lands. May it also restrict public debate about the wisdom and legality of the government’s own actions, on the plea that such discussion might endanger the security of the nation?
Throughout American history, wartime administrations have limited public discourse in the name of national security. In 1798, for example, on the eve of a threatened conflict with France, Congress passed the Sedition Act of 1798, which effectively made it a crime for any person to criticize the government. Although the Republicans, led by Thomas Jefferson and James Madison, opposed the act as a violation of the First Amendment, the Federalists, led by John Adams and Alexander Hamilton, defended it as a wartime necessity. They insisted that speech critical of the nation in wartime might undermine the confidence of citizens in their leaders, divide and demoralize the public, foster opposition and subversion, embolden the enemy, and ultimately threaten the security of the nation itself.
Similarly, during the Civil War, the Lincoln Administration invoked martial law, suspended the writ of habeas corpus, shut down “disloyal” newspapers, and imprisoned critics of the president’s policies. And during World War I, the Wilson Administration enacted the Espionage Act of 1917 and the Sedition Act of 1918, which made it unlawful for any person to criticize the war, the draft, the government, the president, the flag, the military, or the cause of the United States. The government prosecuted some 2,000 people under these statutes, with the consequence that free and open debate was stifled almost completely.
Measured by these standards, the Bush Administration’s direct efforts to suppress public debate since September 11 have been relatively modest. This is so in part because of a fundamental shift in American law and culture. By the 1960s, a consensus had emerged in the United States–both in the public and the courts–that these past episodes of civil-liberties infringement had been grievous errors in which the nation allowed fear and partisan exploitation to override its commitment to individual liberty and democratic self-governance. By the time of the Vietnam War, a consensus had emerged holding that the government cannot constitutionally punish its critics, even in wartime, merely because they question the wisdom, morality, or efficacy of government policy.
That consensus, which reflected a profound shift in American values and law, has held to the present, with the result that the Bush Administration–unlike the Adams, Lincoln and Wilson administrations–has not even attempted criminally to prosecute critics of its policies. This is an important milestone in American history. We should not let it pass unnoticed, or in any way take it for granted. Viewed historically, it is a significant triumph for the rule of law.
But that is not to say that the administration gave up the goal of controlling public debate. Rather, it just changed strategies. If it could not punish citizens for criticizing its policies, then it would prevent them from knowing what those policies are in the first place. After all, if citizens do not know what the government is doing, they are hardly in a position to question its judgments. The Bush Administration’s obsession with secrecy can therefore be understood, in part, as a method of controlling public debate.
The Bush Administration’s emphasis on secrecy can also be understood as a response to the distinctive nature of the war on terrorism. Historically, threats to national security could be addressed through the conventional means of deterrence and punishment. During the Cold War, for example, the Soviet Union was deterred from launching a nuclear attack against the United States in part by its fear of a counter-strike. In the war on terror, however, the enemy is not a nation-state against which the United States can retaliate. Moreover, the enemy’s “soldiers” have convincingly demonstrated their willingness to die for their cause. Deterrence and punishment are largely ineffective against such an enemy.
In such a situation, it is understandable that the Bush Administration would focus with such determination on gathering huge amounts of information, using aggressive methods of interrogation, and obsessively preserving secrecy. In an atmosphere in which prevention is critical, and the failure to prevent even a single attack can lead to the deaths of thousands of Americans, the control of information is essential. The more we know about the enemy, and the less the enemy knows about us, the greater the government’s ability to protect the nation. This mindset is a natural consequence of the need to seize every advantage in the quest to find every possible needle in every possible haystack, without fail.
In short, the Bush Administration’s urge to secrecy is an understandable and, at heart, legitimate one. What is not acceptable is the extent to which it has acted upon that urge and the ways in which it has used the excuse of national security to cover its own shortcomings. Here is the dilemma: The government often has exclusive possession of information about its policies, programs, processes, and activities that would be of great value to informed public debate. But government officials often insist that such information must be kept secret, even from those to whom they are accountable–the American people. How should we resolve this?
The issue is complex, and involves several dimensions. The reasons why government officials want secrecy, for example, are many and varied. They range from the truly compelling to the patently illegitimate. Sometimes, government officials may want secrecy because they fear that the disclosure of certain information might seriously undermine the nation’s security (for example, by revealing detailed battle plans on the eve of battle). Sometimes, they may want secrecy because they fear public criticism of their decisions or because they fear that the public, the Congress, or the courts will override their decisions, which they believe to be wise. Sometimes, they may want secrecy because disclosure will expose their own incompetence or wrongdoing. Some of these reasons for secrecy are obviously more worthy of deference than others.
Moreover, the contribution of disclosure to informed public discourse may vary widely depending upon the nature of the information. The disclosure of some confidential information may be extremely valuable to public debate (for example, the revelation of unwise or even unlawful government programs, such as the Bush Administration’s torture memos or its authorization of expanded electronic surveillance). The disclosure of other confidential information, however, may be of little or no legitimate value to public debate (for example, the publication of the identities of covert American agents in Iran).
The most vexing problem arises when the public disclosure of secret information is both harmful to the national security and valuable to self-governance. Suppose, for example, the government undertakes a study of the effectiveness of security measures at the nation’s nuclear power plants. The study concludes that several nuclear power plants are especially vulnerable to terrorist attack. Should this study be kept secret or should it be disclosed to the public? On the one hand, publishing the report will reveal our vulnerabilities to terrorists. On the other hand, publishing the report will alert the public to the situation, enable citizens to press government officials to remedy the problems, and empower the public to hold accountable those public officials who failed to keep the nation safe. The public disclosure of such information could both cost and benefit the nation. Should the study be made public?
In theory, this question can be framed quite simply: Do the benefits of disclosure outweigh the costs of disclosure? That is, does the value of disclosure to informed public deliberation outweigh the danger to the national security? As a practical matter, however, this simple framing of the issue is not terribly helpful. It is exceedingly difficult to measure in any objective, consistent, predictable, or coherent manner either the “value” of disclosure to public discourse or the “danger” to national security. And it is even more difficult to balance such incommensurable values against one another.
Even if we were to agree that this is the right question, we would still have to determine who should decide whether the benefits outweigh the costs of disclosure. Should this be decided by public officials whose responsibility it is to protect the national security? By public officials who might have an incentive to cover-up their own mistakes? By low-level public officials who believe their superiors are keeping information secret for inadequate or illegitimate reasons? By reporters, editors, and bloggers who have gained access to the information? By judges and jurors, in the course of criminal prosecutions of leakers, journalists, and publishers?
What about the First Amendment? Does it provide sufficient protection to solve this problem? From a First Amendment perspective, several fairly clear rules govern this situation. First, on the one hand, the government has broad constitutional authority to keep information secret. That is, under the prevailing interpretation of the First Amendment, the government is under no constitutional obligation to disclose what it regards as confidential information to the public. It can classify information if its disclosure might reasonably endanger the national security, and it can constitutionally punish a public employee who reveals such information.
Second, and on the other hand, the press has broad constitutional authority to publish information even if the government would prefer to keep it secret. In New York Times v. United States, the Pentagon Papers case, the Supreme Court held that the publication of even classified information cannot constitutionally be restrained unless the government can prove that the disclosure would “surely result in direct, immediate, and irreparable damage to our Nation.”
This issue arose recently after the New York Times publicly disclosed Bush’s secret directive authorizing the National Security Agency to engage in warrantless electronic surveillance. Several Republican members of Congress accused the Times of “treason,” 210 House Republicans supported a resolution condemning the the media for putting “the lives of Americans in danger,” and Attorney General Alberto Gonzales suggested that the Times might be prosecuted for publishing “information relating to the national defense” with “reason to believe” that the information could be used “to the injury of the United States.”
Despite all the saber-rattling, the government did not prosecute the New York Times for its disclosure of the NSA program. Clearly, the administration understood that it could not prove that that disclosure of a probably illegal program caused “direct, immediate, and irreparable” harm to the national security. Indeed, in the entire history of the United States there has never been a criminal prosecution of the press for publishing confidential information relating to the national security.
When all is said and done, then, the First Amendment serves as an important but limited safeguard against undue government secrecy. As construed by the Supreme Court, the First Amendment gives strong protection to the press when it publishes even classified information relating to the national security, but it gives the press and the public essentially no constitutional right to demand such information from the government. What is needed, then, to rein in the abuses of the Bush Administration is a significant change in public policy, either in the form of executive action or federal legislation.
Because the First Amendment is unlikely to solve this problem, a careful redefinition of public policy is essential. Apart from a generally more open approach to executive transparency and accountability, I have four specific policy recommendations.
First, either by executive order or congressional amendment of the Freedom of Information Act, the executive should no longer be authorized to classify information merely because its disclosure has the potential to harm the national security. This practice, which dates back to an October 2001 directive from then-Attorney General John Ashcroft, does not balance security interests against open society interests. The proper standard for classification should be “whether the potential harm to the national security outweighs the value of the disclosure to public discourse.” This standard has been used by past administrations, and there is no reason why it cannot be imposed either as a matter of executive order or congressional action. The solution to overclassification is simple: less classification.
Second, Congress should enact the pending Federal Employee Protection of Disclosures Act, which would provide greater protection to national security whistleblowers. Perhaps most important, this legislation would offer express protection to public employees who disclose unconstitutional or otherwise unlawful government actions.
Third, Congress should enact the proposed State Secrets Protection Act, which would clarify and limit the use of the state secrets privilege, a common-law privilege designed to allow the government to protect sensitive national security information from disclosure in litigation, whether or not the government is a formal party to the litigation. The Bush Administration has broadly invoked the privilege, using it repeatedly to block judicial review of questionable constitutional practices, including the secret NSA surveillance program; the secret rendition of alleged terrorists; and challenges to the legality of the dismissal of government whistleblowers.
Fourth, Congress should enact the pending Free Flow of Information Act, which would recognize a qualified journalist-source privilege. This would enable journalists to protect the confidentiality of their sources unless the government can prove that disclosure is necessary to prevent significant harm to the national security that would “outweigh the public interest in newsgathering and maintaining the free flow of information to citizens.” Forty-nine states currently recognize the journalist-source privilege. It is time for the federal government to protect this privilege as well.
Enactment of these four laws would go a long way toward redefining the balance between secrecy and accountability. Some measure of secrecy is, of course, essential to the effective functioning of government, especially in wartime. But the Bush Administration’s obsessive secrecy has effectively and intentionally constrained meaningful oversight by Congress, the press, and the public, directly undermining the vitality of democratic governance. Looking back over the past seven years, one cannot escape the inference that the cloak of secrecy imposed by the administration has less to do with the war on terrorism than with the administration’s desire to insulate executive action from public scrutiny. Such an approach to self-governance weakens our democratic institutions and renders the country less secure in the long run. A basic assumption of self-governance is not only that open decisions enable public participation, but also that decisions are more likely to be wise, thoughtful, and responsible if they are made in the light of day and are open to question. This is an area in which serious reconsideration of our laws is necessary to reinforce the most fundamental elements of our liberty.