Secrecy in national security policy is a real and legitimate concern by activists, human rights groups and the press. And it ought to be–how is the public to judge the actions taken by their government if they don’t know what is being done, why it is being done, and why the action is legal?
Perhaps less well known, however, is that many in senior national security positions struggle with the same issue. In many instances, our very ability to take actions to defend our nation depend on secrecy. Disclosure of what we know, and how we know it can stop the flow of information and can also often endanger lives. Still, it is also deeply dissatisfying to take great care to comply with legal requirements without the ability to explain or defend decisions when challenged in the public sphere. I think that the series of national security speeches by Administration lawyers is the result of the push and pull of secrecy and the real need to explain our actions.
Keying off Senator Ron Wyden’s letter to CIA nominee John Brennan, Ken Anderson offers a very rich and thoughtful discussion about this challenge of balancing the need to keep some critical information secret against the importance of transparency and accountability in a democracy. The entire post is worth a careful read, but here is an excerpt:
The fundamental problem is that accountability is trapped between a rock and a hard place; although more can and should be revealed confidentially to the select intelligence committees, the Administration is keenly aware that revealing very much in more public or official ways, particularly by the CIA, risks depriving it of protection from FOIA claims. This leads, of course, to the situation of national security leadership – including Brennan – having to say entirely absurd things with a straight face. The series of national security speeches by the Administration’s national security general counsels, plus Brennan’s own series of speeches, has helped – not only because in them the Administration has admitted to drone strikes, but for other important reasons as well (which Ben Wittes and I aim to explain in a forthcoming book on the speeches).
Yet from the standpoint of secrecy-accountability, it is still not enough. In saying that, to be clear, I don’t mean it as a stalking horse for what the ACLU would like to see revealed, and in particular this is not a covert call for judicial supervision – but instead a call for reform of Congressional intelligence oversight. The Administration perhaps needs to understood better that this kind of absurdity is not merely an instance of “plausible deniability” transformed into “preposterous deniability – mildly amusing, spy-movie official denial dialogue, wink-wink-nod-nod, and it’s all okay because everyone is in on the joke. Instead it’s something much more corrosive to the sense of legal legitimacy of these vital national security programs, as well as to the very idea that there are actual secrets that do need to be protected. If it took this de-legitimation risk more seriously, it might thereby take more seriously the need to reform the secrecy-oversight-FOIA process, as a necessary element of maintaining long-run legitimacy and firming up “institutional settlement” for counterterrorism policies such as the drone programs.
If the fundamental problem of accountability is that increasing accountability and transparency risks, under current FOIA law, throwing open the barn door to judicial scrutiny on matters hitherto believed for good reasons to belong to the political branches alone – then the fundamental problem of secrecy and the classification system is that it is at once over-inclusive and under-inclusive. It starts by classifying far too much – through bureaucratic tendencies and incentives that convert information into access – but then discovers that it can’t actually operate that way and, in any case, secret information only becomes a form of power insofar as one controls access to it. Since there must be some access in order to “powerize” it (sorry for the that ugly neologism; looking for the equivalent of “monetize”), however, things get leaked, whether by tacit consent of top level officials or by lower officials for their own agendas.
Having set up the problem, Ken suggest that oversight reform and a revision of FOIA might offer a solution:
My own view is that sensible oversight reform would include a special, formalized confidential disclosure and consultation process with the select committees if targeting of US citizens arises in the future. Yet that would need to be coupled, ideally, with a legislative reform of FOIA to provide more, and clearly legally reliable, exemptions for the CIA and other agencies for these operations. I don’t know how one would draft that statutory reform, but I am certain that it needs to be much higher up the list of reform priorities than it currently is. We need an accountability and reporting process between the two political branches that takes account of a much wider range of secret, covert, quasi-covert, deniable, plausibly deniable, barely deniable, preposterously deniable, and merely unacknowledged actions than we currently have. That said, the relevant Twitter hashtag would have to be … #GoodLuckWithThat. Reform of the conjoined secrecy-oversight-FOIA process is nowhere on the horizon and most likely never will be, as I have learned from Amy Zegart’s book on the oversight process (Eyes on Spies; reviewed here at Lawfare).
Read it all here. What do you think? How do we ensure that we neither over classify or under classify information? Can oversight by both defense and intelligence committees help strike the right balance?
Charles A. Blanchard
General Counsel
United States Air Force
