How Does Government Secrecy Change?

Sometimes it seems that the national security classification system is static, monolithic and hopelessly inert.  But in fact it is relentlessly in motion, with new secrets constantly being created as old secrets are gradually released.

Two months ago, the fact that the Foreign Intelligence Surveillance Court had authorized the bulk collection and transfer of telephone metadata to the National Security Agency was a highly classified secret.  But by last Friday, the Court’s renewal of that same authority for bulk collection was actually announced in a press release from the Office of the Director of National Intelligence.

In the interim, of course, the previously Top Secret FIS Court order had been leaked by Edward Snowden and published by The Guardian.  But Snowden did not leak the fact of the latest renewal.  It was disclosed at the initiative of the ODNI.

And other related disclosures may be on the way. “The Administration is undertaking a careful and thorough review of whether and to what extent additional information or documents pertaining to this program may be declassified, consistent with the protection of national security,” the ODNI press release said.

In effect, the Snowden disclosures shifted the Administration’s calculation of what should be secret and what should be public.  From a secrecy policy point of view, this is as noteworthy as the disclosures themselves.

(“This discussion can, and should, have taken place without the recent disclosures,” said ODNI General Counsel Robert S. Litt in a speech at the Brookings Institution on July 19 which detailed the government’s perspective on the matter. Maybe it can, and maybe it should– but it didn’t.)

Setting aside the specific content of the disclosures, the shifting boundaries of national security secrecy highlight the fact that the decision to classify information is inherently a matter of judgment.  And because it is an act of judgment, an official decision to classify is subject to disagreement, error, reconsideration and revision.

But how exactly do judgments about secrecy change?  If the factors that enter into classification judgments could be clarified, the prospects for a more rational and comprehensible secrecy policy would be improved.  A better understanding of the process would also serve to focus and guide efforts to change secrecy policy.

In a new paper, I tried to describe some of those factors and to draw practical conclusions from them.  “An Inquiry into the Dynamics of Government Secrecy” was just published in Harvard Civil Rights-Civil Liberties Law Review, Vol. 48, No. 2, Summer 2013.

The essential point of departure is a recognition that classification of national security information is a subjective process, not a rigorously objective one.

“There appears to be no common understanding of classification levels… nor any consistent guidance as to what constitutes ‘damage,’ ‘serious damage,’ or ‘exceptionally grave damage’ to national security,” according to an ODNI classification study cited in the paper.  “There is wide variance in application of classification levels.”

This subjectivity and lack of common understanding can produce erratic results. Different classifiers may classify the same information differently.  Classification levels of particular items of information whose sensitivity would normally be expected to diminish over time will sometimes increase.  Often, decisions to classify seem to be skewed by habit, political or bureaucratic self-interest, or simple error. Illogically, the same information may be treated as both classified and unclassified, even in a single document.

But if classification unavoidably involves individual judgments then it stands to reason that the quality of the classification process can be improved by submitting those judgments to a form of external review.

“Precisely because classification is a subjective process, the act of introducing additional ‘subjects’ into the process can destabilize it in a fruitful way,” I argue in the paper.

“While individual classifiers rarely seem to change their own judgments when challenged, those individual judgments are overturned with some frequency when the opinions of other persons are consulted and integrated into the process.”

That is the case, for example, with the Interagency Security Classification Appeals Panel, which now has a 17 year record of declassifying at least some information in the large majority of documents that have been presented to it on appeal after the originating agencies declined to do so on their own.

“It is possible to counter any official tendency to exploit the classification system for political or bureaucratic advantage by engaging a broader circle of participants, whose interests do not all coincide, in the classification process,” the paper suggests.

“Providing for a series of layered reviews of classification decisions — within agencies, across the executive branch, and with the active oversight of Congress and the courts — offers a straightforward mechanism for mitigating classification abuses.”

“By itself, this kind of approach will not resolve all disputes over what should or should not be secret. But a more consensual style of making classification decisions, with more robust opportunities for error detection and correction, would be a marked improvement over current practice.”

One thought on “How Does Government Secrecy Change?

  1. Perhaps the seminal issue is not about what to release, it is about when actions in the name of security become a conspiracy to breach constitutional guarantees. When our government tells us that the electronic data and communications of every single man, woman and child in the United States and maybe in the whole world are legal and suitable data for collection and use by the Federal government, if that is not a breach of constitutional guarantees, what is?

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