That misconception is virtually a cover story, concealing and reinforcing the actual ability to keep important secrets that are known to hundreds or more insiders-like plans and preparations for escalation in Vietnam in 1964-65, or for aggression against Iraq in 2001-2002 -- thoroughly secret from Congress and the public as long as necessary to produce the desired faits accomplis. vii
Second, critical focus on the huge mass of classified data that "does not need to be protected" (any longer if it ever did) distracts attention from a far more important problem: the smaller but still vast amount of data that is guarded from the public with the utmost concern by the executive branch because Congress and the public urgently needs to know it: to fulfill the promise of democracy, to hold officials accountable, indeed to protect our society's own well-being and security.
In reality, the apparatus of secrecy serves in very significant part to conceal -- from American voters, Congress, courts -- policy errors, recklessness, violation of domestic and international law, deception, crimes, corruption in various forms, questionable or disastrous judgment, responsibility for catastrophes. The motivations for classifying these are real and strong, not just a reflection of carelessness. But they have to do with considerations of domestic and bureaucratic politics and blame-avoidance, not at all with true national security.
Although formal regulations supposedly forbid the use of classification to conceal crime or embarrassment, these uses of the secrecy system are not occasional aberrations or mistakes or "abuses." In the eyes and practice of high-level office-holders, military and civilian, that system has no more frequently relied upon, more highly valued purposes than these. To a very large extent, that is what the system is for. And what it delivers.
As an urgent matter, the existing secrecy system should be radically contracted and monitored, its current contents generally released (American "glasnost"), its presumptions debated, challenged and changed. I have longed for that process to be launched for forty years, never more so than now. But of course, it is not about to happen. Not in anything like the climate of the last decade, in the continuing aftermath of 9-11, multiple wars in the Middle East, and the expansion of executive powers-the latter unconstitutional, it seems to me and others, virtually coup-like-that has persisted into the present administration .
III) Desiderata for a democratic secrecy system
What would a better secrecy system in a democracy look like? Even to address that question at this time is the very definition of wishful thinking, building castles in the air. But why not? Let's take a moment to be utopian and consider some features it might have or omit, without asking what we could get from this Congress and this president or the next.
(a) It would, by the premises above, be very much smaller. A system that withheld, more than a few years, only 5% or 1% of what is now guarded in safes would not be a "reformed" system, it would be an entirely different system. It would reflect a strong presumption against secrecy (outside the special categories mentioned in earlier end-notes) beyond a very limited period: automatic declassification for most information after an interval closer to three years than ten.
(b) There would be no legislated equivalent to a broad Official Secrets Act, of the British-type (passed for the first time in October 2000 but vetoed by President Clinton), criminalizing all unauthorized disclosure of classified information. Except for the information already covered by narrow criminal statutes-communications intelligence, nuclear weapons data and identities of clandestine agents-there would be only administrative sanctions for leaks, not criminal penalties. Hence, no grand jury subpoenas for journalists to reveal sources (outside the categories of information covered by existing statutes).v
(c) Legislated whistleblower protection-prohibiting administrative sanctions, let alone prosecution- for all federal national security employees giving classified information non-publicly to any or all members of the Intelligence Committees of Congress (not just the "gang of four"), or to ranking members (at least) of the Armed Services, Foreign Affairs and Budget Committees.
Ideally, the Intelligence Committees themselves should be investigated and reformed, having fatally compromised their "oversight" functions in favor of protecting the intelligence community and keeping its secrets. But at least, there should be immunity from prosecution for informing these others committees of classified evidence of fraud, deception, waste, corruption, illegality or dangerous risk-taking.
(d) Effective whistleblower protection to all federal employees, not vitiated as at present (and past) by appointments of personnel and Inspector Generals who are hostile to whistleblowing.
(e) Immunity from prosecution for revealing what reasonably is judged to be criminal behavior to the press as well as to Congress, prosecutors or courts: this to include information formally covered by communications intelligence clearances (see revelations of illegal NSA warrantless wiretaps and surveillance) or SAP's (see torture and rendition to torture states and sites).
(f) Resuscitation of the Freedom of Information Act process -- as a start, to levels attained in the Clinton administration (reversed under George W. Bush) -- with adequate personnel and budget for prompt response, and with newly effective procedures for appealing decisions.
(g) Congressional limitation of the "state secrets privilege," after thorough investigation of past practices and abuses; skepticism and independent judgment of executive claims of the needs of secrecy by courts.
h) Enforcement of criminal sanctions for lying to Congress by civilian or military officials.
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