The past eight years of the George W. Bush Administration have seen significant restrictions of individual liberty. Much of the impetus for these restrictions has come from the tragedy of September 11 and its complex aftermath: War inevitably magnifies the tension between individual liberty and national security. But there are wise and unwise ways to strike the appropriate balance. In the years since September 11, the Bush Administration has embraced a series of policies–including torture, aggressive surveillance of international communications, clandestine detention of American citizens, secret prisons in Eastern Europe, closed deportations proceedings, and restrictions on the writ of habeas corpus–that have unnecessarily undermined the fundamental American value of individual liberty.
However, the most unfortunate policy of the Bush Administration in terms of American liberty has been its deliberate and consistent effort to hide some of its most important policy decisions from the American public. Of course, there are legitimate reasons to keep certain information secret to protect the national security. But secrecy can also be used to evade responsibility and to manipulate and distort public debate and understanding. Overbroad government assertions of secrecy can cripple informed public debate. It is impossible for citizens responsibly to consider the merits of the actions of their elected representatives if they are kept in the dark about their conduct. As Sen. Daniel Patrick Moynihan once observed, "Secrecy is the ultimate form of regulation because people don’t even know they are being regulated." This has been a legacy of the Bush Administration.
In a studied effort to circumvent the constraints of separation of power, judicial review, checks-and-balances and democratic accountability, the administration has systematically promulgated programs in secret, denied information to Congress, abused the classification process, narrowly interpreted the Freedom of Information Act, redacted vast quantities of information from government websites, disciplined government whistleblowers, jailed journalists for refusing to disclose their confidential sources, threatened to prosecute the press for revealing the Administration’s secret programs, and broadly invoked executive immunity and the state secrets doctrine to prevent both Congress and the courts from evaluating the lawfulness of its programs. By shielding its decisions from legal, congressional and public scrutiny, the Bush Administration has undermined the single most central premise of a self-governing society: It is the citizens who must evaluate the judgments, policies and programs of their representatives. As James Madison observed, "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."
The Obama Administration offers an opportunity to reconsider this posture and regain the appropriate balance between secrecy and the public’s right to know. With the past eight years in mind, we need to reevaluate some of our government’s practices and policies in order to re-establish the nation’s commitment to transparency, accountability, and informed public deliberation, which are fundamental to individual liberty. Apart from a generally more open approach to executive transparency and accountability, I have four specific policy recommendations.
First, either by executive order or congressional amendment of the Freedom of Information Act, the executive should no longer be authorized to classify information merely because its disclosure has the potential to harm the national security. This practice, which dates back to an October 2001 directive from then-Attorney General John Ashcroft, does not balance security interests against open society interests. The proper standard for classification should be "whether the potential harm to the national security outweighs the value of the disclosure to public discourse." This standard has been used by past administrations, and there is no reason why it cannot be imposed either as a matter of executive order or congressional action. The solution to overclassification is simple: less classification.
Second, Congress should enact the pending Federal Employee Protection of Disclosures Act, which would provide greater protection to national security whistleblowers. Perhaps most important, this legislation would offer express protection to public employees who disclose unconstitutional or otherwise unlawful government actions.
Third, Congress should enact the proposed State Secrets Protection Act, which would clarify and limit the use of the state secrets privilege, a common-law privilege designed to allow the government to protect sensitive national security information from disclosure in litigation, whether or not the government is a formal party to the litigation. The Bush Administration has broadly invoked the privilege, using it repeatedly to block judicial review of questionable constitutional practices, including the secret NSA surveillance program; the secret rendition of alleged terrorists; and challenges to the legality of the dismissal of government whistleblowers.
Fourth, Congress should enact the pending Free Flow of Information Act, which would recognize a qualified journalist-source privilege. This would enable journalists to protect the confidentiality of their sources unless the government can prove that disclosure is necessary to prevent significant harm to the national security that would "outweigh the public interest in newsgathering and maintaining the free flow of information to citizens." Forty-nine states currently recognize the journalist-source privilege. It is time for the federal government to protect this privilege as well.
Enactment of these four laws would go a long way toward redefining the balance between secrecy and accountability. Some measure of secrecy is, of course, essential to the effective functioning of government, especially in wartime. But the Bush Administration’s obsessive secrecy has effectively and intentionally constrained meaningful oversight by Congress, the press, and the public, directly undermining the vitality of democratic governance. Looking back over the past seven years, one cannot escape the inference that the cloak of secrecy imposed by the administration has less to do with the war on terrorism than with the administration’s desire to insulate executive action from public scrutiny. Such an approach to self-governance weakens our democratic institutions and renders the country less secure in the long run. A basic assumption of self-governance is not only that open decisions enable public participation, but also that decisions are more likely to be wise, thoughtful, and responsible if they are made in the light of day and are open to question. This is an area in which serious reconsideration of our laws is necessary to reinforce the most fundamental elements of our liberty.