National Security Secrecy and the Right to Know

While almost everyone would agree that national security secrecy has a role to play in an open society, such secrecy must be carefully circumscribed if robust public access to government information is to be preserved.  A set of principles that open societies around the world can use to help guide and limit the application of secrecy was published this week.

The new Principles on National Security and the Right to Know were generated by an international group of scholars, government officials, activists and others convened by the Open Society Justice Initiative in an attempt to define a global consensus on national security secrecy and to aid legislators and citizens around the world who may be new to the subject.

The Principles present guidance on specific types of information that the drafters believe may legitimately be withheld from disclosure on national security grounds (e.g. current war plans), as well as categories of information that should not be withheld on national security grounds “in any circumstances” (e.g. information on gross violations of human rights).

The Principles are the product of an international initiative, and they are not the same as U.S. policy writ large.  In fact, some of the Principles are inconsistent with current U.S. government practice.

Thus, one principle would preclude the use of secret interpretations of law in the conduct of intelligence surveillance. “The overall legal framework concerning surveillance of all kinds, as well as the procedures to be followed for authorizing surveillance, selecting targets of surveillance, and using, sharing, storing, and destroying intercepted material, should be accessible to the public.” (Principle 10E).

Another principle would provide strong protection to persons who publicly disclose government wrongdoing involving classified information, under certain specified conditions. (Principle 40).

The tools of transparency can be used to attack an open society– by infringing on personal privacy, by violating confidentiality in the exercise of religious freedom or free association, or by making sensitive military or intelligence data available to violent fundamentalist adversaries. But in a briefing paper, the drafters of the Principles disavow such actions.

“The aim of the Principles is not absolute or radical transparency. The Principles, in keeping with international law, recognize that the right of access to information may be limited by other important interests including international relations, public order, public health and safety, law enforcement, future provision of free and open advice, effective policy formulation, economic interests of the state, personal privacy and commercial confidentiality.”

The Principles were developed in response to a wave of global interest in open government, the drafters said.

“In 1989, only 13 countries had access to information laws on their books.  As of June 2013, 94 countries have such laws, granting the right of access to information, at least in theory, to more than 5.2 billion people in all parts of the world.  People in these countries are, many for the first time, grappling with how to keep information confidential pursuant to law rather than by culture or executive discretion.”

It is the drafters’ hope that “the Principles will influence the development and reform of laws and policies in countries that aspire to comply, and to be seen by the international community to comply, with international law.”

“As societies deal with the continuing conflict between the right to know and claims of national security, as well as how to evaluate acts of whistleblowers, these Principles will provide a compelling guide grounded in experience and a deep commitment to the values of open society,” said Morton Halperin, senior advisor to the Open Society Foundations.