A Presumption in Favor of Secrecy

A flourishing “marketplace of ideas” is one of the great goals of the First Amendment. It is jeopardized today by an environment of government secrecy that denies the public and even lawmakers access to information necessary to make sound decisions.

The trend to keep the public in the dark was first signaled by the 2001 “Ashcroft memo,” which reversed a long-standing “presumption in favor of disclosure” of information about government activities, absent a sound legal basis for secrecy.

Before adjourning for the holidays, Congress passed the Openness Promotes Effectiveness in our National (“OPEN”) Government Act of 2007, a suite of minor reforms to the Freedom of Information Act (FOIA). Sadly, a clause that would have overturned the “presumption in favor of secrecy” was removed from the bill at the last minute.

Since 2001, government secrecy has been the default position, and disclosure the exception to the rule. As documented in a 2004 report, Secrecy in the Bush Administration, issued by Rep. Henry Waxman (D-CA), this policy has been implemented through Executive Orders, increased classification of documents, and “denial through delay.” As a result, Congress has been unable to exercise its oversight function fully, and, in some cases, public debate, judicial review, and legislative action have been foreclosed.

Without question, some information must be safeguarded in the interest of national security. Nevertheless, review by courts or legislators is essential to ensure that national security is not invoked unnecessarily, or merely to keep potentially incriminating or embarrassing conduct under wraps. Some recent revelations justify public skepticism.

Take the administration’s covert surveillance program, for instance. It was first disclosed to the public in late 2005 by The New York Times (in a story that was held, unpublished, for over a year at the government’s behest) that the National Security Agency was using wiretaps without court-issued warrants, bypassing the requirements of the 1978 Foreign Intelligence Surveillance Act (FISA) and threatening the constitutional rights of Americans.

To this day, press reports remain the major source of information about the NSA’s activities. Congressional committees have been repeatedly rebuffed in their efforts to learn more. Lawsuits filed against the government and the telecommunications companies who cooperated in the program presented an opportunity to discover how the program operated. However, the administration has derailed almost all of these proceedings in their early stages – over 40 to date – by invoking the “state secrets privilege.”

Legislating in the dark, last August Congress passed the “Protect America  Act,” temporarily authorizing elements of the NSA program in spite of concerned testimony by former government officials. The law is due to expire at the beginning of February, and Congress has been debating what to do next. The major point of contention is the administration’s push to grant retroactive immunity to telecom companies, yet no more than a handful of Senators have been fully briefed either on the surveillance program itself or the actions of companies that cooperated in it.

Congress faces intense pressure from the White House to authorize the continuation of this surveillance program in the name of national security. Still, Congress and the public lack the information to make a sound judgment about its necessity, efficacy, and legal status, or whether it is worth the trade-off in constitutional rights. As James Madison cautioned, "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."