April 20, 2015

Democracy in the Dark: The Seduction of Government Secrecy

by Frederick A.O. Schwarz Jr., Chief Counsel of the Brennan Center
Some secrecy is necessary, but too often secrecy is used to hide illegality, embarrassment or conduct departing from American values. Contrary to conventional wisdom, however, these reasons do not explain by themselves why America’s mountains of classified documents grow ever higher. Human nature and bureaucratic incentives favor secrecy over openness.  Secrecy is seductive. Beyond the timeless link between secrecy and power, secrecy limits challenges and risky questions.  It fosters illusions of grandeur.  Fear, awe, jealousy and lethargy all help cement a culture of secrecy.
Secrecy spawns more secrecy.  The more information increases and secrets proliferate, the more professionals are tempted to use secrecy to get noticed.  If you want your individual snowflake report to be read and not buried by avalanches of paper or blizzards of bytes, you better be sure it is classified and, indeed, escalate its classification to top secret or beyond. Secrecy’s seduction often blinds those with access to secrets to other valuable sources. Even though information from open sources (newspapers, magazines, TV, radio and the Internet) is often unique and valuable, many recipients of intelligence have no interest in such information, only wanting super-secret material from spies and intercepts.  Moreover, secret is often conflated with true.
Escalating secrecy also adds to institutional prestige, explaining, for example, why CIA leaders fight fiercely to keep the President’s Daily Brief (PDB) super-secret. Prior to 9/11, the Bush Administration reduced PDB circulation to just six people, excluding the Attorney General, FBI Director, and White House counterterrorism chief.  During the summer of 2001, these super-secret submissions to the White House contained many dire al Qaeda predictions that something “very, very, very big” was about to happen; “spectacular”; resulting in “numerous casualties.” Had the White House publically disclosed the gist of the top-secret threat warnings, it is likely lower-level government officials would have acted on information like the disturbing number of individuals of investigative interest attending aviation schools.  Disclosure could also have led to more imaginative thinking about possible terrorist actions.  White House disclosure of the warnings might well have averted 9/11.
The issue, however, is not simply whether disclosure could have prevented 9/11. The concern is that without any deliberation, and consistent with the secrecy culture, the predictions were kept in a tight cocoon of elite officials.  Seduced by secrecy’s prestige, these officials did not consider disclosing the threats.  This reflects a general shortcoming of the secrecy culture:  after information is stamped top secret and shown only to elite leaders, the elite leaders usually just let secrecy roll on without further thought.
Secrecy’s seduction also helps explain why the mountains of classified information are so hard to reduce. Each year officials classify a mind-bogglingly total of about 100 million more documents.  Everybody knows too much is kept secret for too long. But lethargy and fear contribute to keeping the secrecy mountains high.
Also contrary to conventional wisdom, secrecy issues go far beyond classification. The assumption from George Washington through Richard Nixon that presidents owned “their” documents cost the country giant pieces of its history. And today presidents still can bar public access to documents for twelve years after leaving office — which incidentally gives a president free reign to disclose in lucrative memoirs material barred to journalists and historians. Also vital White House decisions are often made by a small coterie of like-minded officials who rely on shared assumptions without benefit of differing views.  Insular presidential circles stifle healthy White House debate in the same way as excessive classification squelches healthy public debate.
Dick Cheney recognized this as Chief of Staff for President Ford, insisting that the president hear all sides.  That Cheney abandoned this position as Vice President is well known.  What has never been revealed before, however, is Cheney’s view in favor of openness and against secrecy buried in his 202-page dissent from Congress’s 1987 Iran-Contra report.   There Cheney criticized “an excessive concern for secrecy,” and even argued that before making important foreign policy or national security decisions, a wise White House should engage in “democratic persuasion.”  This, he explained, meant exposing the public to a “clear, sustained and principled debate on the merits.”  Later, as Vice President, Cheney cast all this aside.
But Cheney is hardly alone in changing his tune on secrecy. Public officials frequently bow publically toward openness because of its deep roots in American democracy, but then bend toward secrecy because its lures are so compelling. Barack Obama has made some moves toward openness, with, for example, the Justice Department opinions justifying torture, our nuclear arsenal, and intelligence spending.  But his administration has also aggressively used the “state-secrets” doctrine to cut off judicial inquires into torture and has used the savage penalties of the Espionage Act to prosecute whistleblowers and leakers, and threaten journalists. All through America’s secrecy era, secrecy has fed on “rank paternalism,” the view that issues are too “subtle and sophisticated” for citizens to address. This is out of tune with the hymns of American democracy. Jefferson’s Declaration taught that governments “deriv[e] their just powers from the consent of the governed.” Lincoln closed his Gettysburg Address by calling for a “new birth of freedom, so that government of the people, by the people and for the people shall not perish from this earth." But, if “consent” of the governed is to be meaningful and if government is to be “by” the people, necessary information cannot be hidden from the people. If it is we become a democracy in the dark.
Frederick A. O. (“Fritz”) Schwarz, Jr., is the author of the just released book Democracy in the Dark: The Seduction of Government Secrecy. In 1975-76, he was Chief Counsel of the U.S. Senate’s “Church” Committee. Today, he is Chief Counsel for the Brennan Center for Justice at NYU Law School. For many years, he was a litigation partner at Cravath, Swaine & Moore. And he was the chief lawyer for New York City, and Chair of its Charter Revision Commission and its Campaign Finance Board.