2 years ago
The ongoing saga over the classified documents seized at Donald Trump’s Mar-a-Lago residence has made for gripping political theater and genuine legal drama. But regardless of whether the former president is ultimately indicted, the case points to a problem that’s bigger than Trump: The U.S. government has become addicted to shrouding its actions behind a veil of secrecy, especially when it comes to national security.
It wasn’t always this way, and it doesn’t have to be this way. However, as long as it remains the case, we really won’t be a democracy with an informed electorate, managed by a transparent government. To put it more bluntly, excessive government secrecy — maintained by layers of unnecessarily classified documents and enforced by draconian laws meant to protect those secrets in perpetuity — is not compatible with a government for the people and by the people.
None of the above should be construed as a defense of how Trump or his lawyers handled sensitive government documents, nor as a repudiation of the entire idea of classified material. At its heart, government secrecy exists to protect national security, and national security is one of the few unequivocal responsibilities of any government. As Steven Aftergood, for decades one of the most diligent critics of excessive government secrecy, has long argued, there are some necessary secrets: the names of intelligence agents in hostile countries, the payload and location of nuclear missiles, the precise orbit of communications satellites.
But since the end of World War II and the origin of the U.S. national security state as part of the bureaucratic reorganization to wage the Cold War, “national security” has become a catch-all concept that encompasses vast swaths of what the government does and extends almost limitlessly into the past and by extension into the future. There are documents about CIA covert activity in the 1950s that have never been released and may never be. The justification is that even long dead people and events largely forgotten could give enemies of the United States insight into how the American government conducts its activities. That is, to put it mildly, a very thin reed.
There are now almost 5 million people who have security clearances and access to classified information; slightly over 1 million of those are allowed to access “Top Secret” material, and a much smaller cohort can access more specialized and compartmentalized information such as nuclear payloads or counter-terrorism intelligence. Having a security clearance is the government equivalent of having a driver’s license: without one, you cannot have a meaningful role in the federal government. The trade-off is that with one, you also cannot communicate openly about what the government is deliberating and what information it is using.
The legal penalties for revealing classified information are stiff, including prison time, and have been enforced time and again. Those laws can even apply to carelessness rather than intent, and the somewhat ambiguous nature of the statutes governing how such material is released or information disseminated leads to even more reticence on the part of officials with clearances — though it is also true that leaks are common. But while leaks often provide real windows into otherwise hidden discussions and actions and are often not prosecuted, that is hardly a sufficient offset to the mountains of documents classified every month which remain perpetually hidden.
Clearances and classification erect a wall between the public and the government. Even congressional representatives do not have access to classified material unless they sit on national security and military oversight committees. For decades, one of the many secrets held by the government was the budget of the intelligence agencies — all of it paid for with taxpayer dollars. Eventually, George Tenet, the director of the CIA under President Bill Clinton, supported the release of the overall spending on intelligence (then roughly $26 billion and now over $80 billion) but opposed any specific breakdown of how that money was spent on the grounds that doing so could give vital information to America’s adversaries and imperil national security. Since 2007, the federal government has provided some granularity about which intelligence agency spends what, but sensitive data — such as the cost of spy drones — remains undisclosed.
With the end of the Cold War, there was a brief, modest thaw in official attitude towards secrets, and Clinton issued executive orders meant to limit the volume of classified information and hasten the release of older documents. Whatever window was opened then slammed shut after 9/11, which ushered in a second golden age of government secrets and the national security bureaucracy. The war on terror meant more information walls than ever before. President Barack Obama later sought to return to the spirit of openness abortively begun by Clinton, but the national security bureaucracy has remained stubbornly addicted to prerogatives to withhold information from public view or even the view of other agencies and officials. Some of that may be for good reason, but in the absence of meaningful oversight and with most incentives dictating that overclassifying is less risky to the agencies and bureaucrats responsible, it’s hard to know whether what is being guarded so zealously should be.
Too much secrecy even creates problems for the government. After 9/11, congressional hearings revealed that intelligence failures leading up to the attacks were partly due to the lack of information sharing between the FBI, CIA, Pentagon and other concerned agencies, which were keeping things under wrap even from each other. One hearing was titled “Too Many Secrets: Overclassification is a Barrier to Critical Information Sharing.” Excessive secrecy and yearslong lags in declassification not only prevent accountability and undermine government coordination. It’s also quite expensive: Streamlining the classification process across agencies would reduce the nearly $20 billion cost of maintaining a system long past the time when those secrets are relevant. The Biden administration to its credit has tried to revive some of the Obama-era stalled initiatives to open up the government but it faces a fight from some in the intelligence community.
No one questions (or at least no one should) that some secrets must be maintained. It’s not just the highly sensitive names of agents or the specifics of military capabilities. Executive privilege to not disclose all that is said and done in the White House in real time is defensible. Current officials in government, especially the president, should be able to debate and deliberate over all options, even ones that would seem egregiously wrong if actually carried out.
There also is a legitimate statute of limitations on how long those discussions should be kept from public view — though it could be much shorter than the decades under current practice (it is technically 12 years at most for presidential records but that gets extended if the information is deemed by the CIA to be sensitive or reveal sources and methods of intelligence collection). Even there, however, officials who are alive would want some assurances that they would not be legally liable for ideas discussed but never acted on; in a gotcha climate, we would all have to be more mature in how we handle public disclosure of what were at the time private utterances and bad ideas that were ultimately rejected.
Ultimately, transparency is needed to ensure accountability in a democratic society. That became manifestly clear with the Church hearings in Congress in the mid-1970s, which shed light on CIA covert actions to overthrow governments in Guatemala and Iran and botched assassination attempts against Fidel Castro and others. Yes, many of us want security and don’t want to know whether it’s maintained by foul means or fair (a la “A Few Good Men”). But that is hardly a good excuse. An informed electorate is also a responsible one; assuming the worst of the public may often be valid, but infantilizing the public becomes a self-fulfilling prophecy.
For now, we have a thicket of laws (and powerful spy agencies) that manage how government secrets are kept and stored and when they can be released, if ever. It would appear that Trump did not honor those laws, whether or not those laws should be changed. But the Mar-a-Lago documents episode should be yet another wake-up call that the entire armature of government secrecy in the United States is deeply flawed, incredibly costly and inimical to a transparent government answerable to both its elected representatives and to the people.
English (US)