ACLU: Congress Must Act to Curb Secrecy

“Congress must take the lead in challenging the laws and practices that have allowed excessive secrecy to become the dominant feature of our national security culture,” the American Civil Liberties Union urged in a new report on government secrecy.

“The excessive secrecy that hides how the government pursues its national security mission is undermining the core principles of democratic government and injuring our nation in ways no terrorist act ever could,” wrote Mike German and Jay Stanley, the authors of the ACLU report.  “It is time for Congress to make the secrecy problem an issue of the highest priority, and enact a sweeping overhaul of our national security establishment to re-impose democratic controls.”

The report provides a fluid account of current secrecy policy, along with a critique from first principles as well as from recent experience.  Highly readable and thoroughly footnoted, the 51 page report covers a spectrum of secrecy issues, from the state secrets privilege to secret law to the role of national security whistleblowers, and a lot more.  It concludes with a menu of recommended reforms that Congress could and, the authors say, should undertake.

The title of the report sums it up:  “Drastic Measures Required:  Congress Needs to Overhaul U.S. Secrecy Law and Increase Oversight of the Secret Security Establishment” by Mike German and Jay Stanley, July 2011.

The report is fundamentally an act of good citizenship.  It identifies a significant problem, proposes a set of potential solutions, and presents a series of arguments about why those solutions should be adopted.  Even readers who do not identify as civil libertarians or do not share the premises of the report are likely to learn something from it.

One may also end up disagreeing with its conclusions or recommendations.  For example, in arguing for a greater congressional role in reforming government secrecy policy, the authors write that “We cannot expect the [executive branch] officials and agencies that benefit from lack of accountability to reform themselves.”  This is logical and makes intuitive sense — but oddly enough, it is not consistently confirmed by experience.

To the contrary, some of the most significant and far-reaching secrecy reforms that have been achieved to date have been the result of internal executive branch actions.  One thinks of the Department of Energy Openness Initiative of the mid-1990s, but also of the declassification of the aggregate intelligence budget, the declassification of the size of the nuclear weapons stockpile, and other “unilateral” executive branch actions.  A proper theory of secrecy policy must account for such counterintuitive moves.

Conversely, an increased role for Congress in secrecy policy under current circumstances might lead to greater secrecy, not less.  The authors sensibly recommend a repeal of the Kyl-Lott Amendment, which effectively prohibited the bulk declassification of historical records.  But the reason a repeal is called for is that Congress enacted such a restrictive measure in the first place, just as it has enacted many other new restrictions on disclosure under the Freedom of Information Act, and similar barriers to public access.  The peculiar congressional affinity for national security secrecy needs to be understood and factored in.

But this is a discussion worth having.

It is certainly true, as the ACLU authors write, that “The Constitution provides ample tools for Congress and the courts to check executive abuses of authority.  Their failure to effectively use these tools leaves these branches of government with much of the blame for the misguided national security policies the executive pursues in secret.”

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