The Worth of War (27 page)

The five presidents who followed Truman restored the national defense justification for restricting access to information, reduced the number of agencies authorized to classify information, and eliminated the lowest level of secrecy—
restricted
—creating today's tripartite system. Eisenhower, Kennedy, and Johnson generally narrowed the grounds on which information could be classified. President Ronald Reagan, however, expanded the range of information that could be classified, ended the automatic declassification of material after a set period of time, reclassified previously declassified material, and told agencies that when in doubt they should err on the side of classification.
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President Clinton reversed the direction of Reagan's policies and ordered that information not be classified if there was significant doubt about the need for secrecy. Clinton also prohibited the reclassification of already-declassified documents. The Bush administration then reversed Clinton's policies, expanding the range of information that could be classified, slowed the declassification of older documents, and restored Reagan's order directing agencies to err on the side of classification. Upon taking office in 2009, President Obama asserted his support for government transparency but issued executive orders instituting only one major change in classification policy. Obama established the National Declassification Center (NDC) within the National Archives to speed the declassification of older documents deemed to be of historic interest but posing no security risks.

The precise number of documents currently classified by federal agencies is not known. It is clear, however, that the number is enormous. During each of the past several decades alone, some 200,000 documents per year, totaling tens of billions of pages, have been newly classified by various federal agencies.
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Since 2009, pursuant to Obama's executive order, the NDC has hastened the declassification of several million pages of older documents.
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During the same period, though, tens of millions of pages of new documents were classified. Thus, the rate of new classification far outpaces the rate of declassification. Critics have accused the NDC of working at a “languid pace,” but of course the NDC must constantly deal with objections from agencies whose documents are being reviewed as well as the cumbersome and time-consuming Kyl–Lott procedure for reviewing documents that may contain information pertaining to nuclear weapons.
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Several agencies, particularly the CIA, have resisted declassification of documents and have, indeed, sought to reclassify documents that had already been declassified. In recent years, the CIA has reclassified thousands of documents—mainly those related to American diplomatic history and originally belonging to the State Department or other agencies. The CIA declared that it had not been properly consulted when the declassification decisions were made.
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Leaked Information

Of course, there are legitimate and proper reasons for classifying information. America's security
is
threatened by foreign foes, terrorists, and even criminal enterprises. However, much that is declared secret or even top secret seems to pose less of a threat to the nation's security than to the security of various politicians and bureaucrats. This is one of the lessons of the various leaks of information that have so troubled officials in Washington in recent years. The issue here is not the propriety of individuals deciding on their own what information should or should not be in the public domain. Such individual decisions can threaten the nation's security. The question at hand is, rather, what the leaks tell us about the government's classification policies. What we find is that agencies classify information that might embarrass the government whether or not it poses a risk to national security. More than anything else, the classification system seems designed to prevent members of the public from becoming fully aware of the misconduct, duplicity, and errors of those who govern them.

Take, for example, the top secret Pentagon Papers, whose release was labeled by President Nixon's national security adviser, General Alexander Haig, as “a devastating security breach of the greatest magnitude.”
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Published in 1971, the documents leaked by Daniel Ellsberg represented a history of America's involvement in Vietnam from 1945 to 1967. The history and supporting documents had been developed by a Defense Department study group created by Secretary of Defense Robert McNamara and tasked with writing a detailed history of the Vietnam War. Ellsberg had briefly worked as a staffer for the study and was able to photocopy most of the information contained in the study's forty-seven volumes.

The Pentagon Papers provided a fascinating look at an important episode in American history, but all their information was historical and the only secrets they revealed concerned lies, evasions, and cover-ups by successive presidents and other government officials. Presidents Eisenhower, Truman, Kennedy, Johnson, and the various senior officials
working for the White House had deceived the press, Congress, and the electorate while pursuing what turned out to be a disastrous policy in Southeast Asia. While President Kennedy was pretending to consult with South Vietnamese President Diem he was already planning to overthrow Diem and sanctioned the coup that led to Diem's death. While President Johnson was declaring, “We want no wider war,” in his 1964 reelection campaign, he had already decided to expand the war. It is little wonder that the Pentagon Papers were classified top secret. An unauthorized individual reading them might have come away with the impression that America's leaders and government could not be trusted.

Former Solicitor General Erwin Griswold argued before the Supreme Court in 1971 that publication of the papers would cause great and irreparable harm to the nation's security. Writing in the
Washington Post
some fifteen years later, Griswold conceded that, “I have never seen any trace of a threat to the national security from the publication.”
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One might say that the threat was to the reputations of political leaders and the credibility of the government, not the security of the nation.

For another example, take the WikiLeaks case. In 2010, a US Army private named Chelsea Manning downloaded more than 700,000 classified documents from military servers and sent them to WikiLeaks, which shared the documents with a number of newspapers.
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Some of the material raised genuine security concerns. The documents include videos that seem to depict instances of misconduct by American troops in Iraq and Afghanistan and documents suggesting that American authorities had failed to investigate cases of misconduct by Iraqi police and soldiers under their indirect command. Other documents included classified cables from US embassies assessing the competence—usually
incompetence
—of foreign leaders. Russia's Vladimir Putin is depicted as little more than a gangster; England's Prince Andrew is shown as rude and boorish; the former president of Tunisia and his daughter are revealed to have their favorite ice cream flown in from Saint Tropez at a time when many Tunisians could barely scratch
out a living. Still other documents revealed corruption on the part of US allies, including Afghanistan, the Vatican, and Pakistan.
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Some of the leaked documents arguably deserve to be classified if only to protect American intelligence sources. Others seem to have been classified to hide evidence of wrongdoing by the United States and its allies, or to avoid embarrassing one or another governmental entity. As in the case of the Pentagon Papers, many documents were classified less to protect the nation's security than to prevent the public from glimpsing the truth behind official facades. Perhaps the American people might have benefitted from knowing some of these facts.

For their part, the 2013 NSA eavesdropping revelations discussed above paint a picture of an agency that might charitably be said to skirt the boundaries of legality. Without any evidence that this activity actually serves the national interest, the telephone and email records of tens of millions of Americans are collected and, without the necessary court orders, some unknown number of these are “inadvertently” thoroughly examined. Presumably, America's foreign foes already suspected that their electronic communications just might be monitored. Government secrecy merely prevented the American public from knowing that its calls and emails were being watched.

Support for an unflattering view of the classification program can also be gleaned from the ongoing tug-of-war over the declassification of documents. In 2005, for example, the CIA reclassified a dozen documents that had been declassified and were publicly available in the National Archives. For the most part, these documents reveal foolish agency projects or missteps sometimes going back a half century. One document detailed an abortive CIA effort to drop propaganda leaflets into Eastern Europe by hot air balloon. Other documents described the intelligence community's faulty analysis of the Soviet nuclear weapons program in 1949. Still another document shows that the CIA was terribly wrong in its analysis of whether or not China would intervene in the Korean War in the fall of 1950.
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Why were these now-ancient documents reclassified? Perhaps because they caused the agency some embarrassment and this, sometimes more than national security,
is deemed by the government to be an adequate reason to keep information from the public.

Congressional Access to Information

The Constitution assigns Congress the power to make the law. Presidents, however, have sought to limit congressional access to information. To begin with, every president since Franklin Roosevelt has taken the position that the presidentially established system of security classification applies to members of Congress and their staffs as well as to the general public. In the Intelligence Oversight Act of 1980, however, Congress explicitly required the president to keep congressional intelligence committees fully and currently informed of all intelligence activities. The act also requires the director of national intelligence to provide any information required by these committees “consistent with the protection of sources and methods.” Congress has taken this phrase to mean that classified information will be given only to members of the intelligence committees and that staff members of those committees must possess requisite security clearances to receive classified information.
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Since 1980, intelligence agencies have briefed congressional committees on many of their undertakings. There is, however, reason to be concerned about the accuracy of the information given to Congress. For example, in March 2013, while testifying before the Senate Intelligence Committee, National Intelligence Director James Clapper responded to a question by saying that the NSA had not “wittingly” collecting information on millions of Americans. Subsequent revelations revealed that Clapper's testimony was disingenuous. Leaving aside the question of veracity, some members of Congress have complained that intelligence briefings are usually filled with jargon and designed to be confusing. Because of security restrictions, moreover, members are usually barred from consulting expert advisers who might challenge or at least more fully explain the programs being discussed. And, by failing to disclose significant information in the first place,
intelligence agencies make it difficult for members of Congress to ask questions or request briefings. President Obama, for example, averred that any member of Congress could have asked for a briefing on the PRISM program. This claim, however, seems a bit dubious. “How can you ask when you don't know the program exists?” asked Representative Susan Collins of Maine, speaking on National Public Radio.
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Executive Privilege

On a number of occasions, presidents have explicitly refused to provide Congress with documents requested by lawmakers. In some instances there may be valid reasons for this refusal, but in most cases the aim seems to be to hide evidence of foolish or illegal action. When refusing, presidents generally claim “executive privilege.” A related claim, used when the executive refuses to turn over documents to the courts, is called the “state secrets privilege,” and was recently cited by the Obama administration in seeking to block a suit involving the targeted killing of a US citizen suspected of terrorist activities in Yemen.
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The actual term,
executive privilege
, was coined by President Eisenhower, who frequently refused to provide information to Congress when to do so, in his view, would violate the confidentiality of deliberations in the executive branch.
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But, long before Eisenhower introduced the phrase, presidents claimed the power to withhold materials from Congress and from the courts.
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George Washington, as noted above, was reluctant to accede to congressional requests for information about a disastrous campaign against the Indians and refused to provide Congress with documents about the circumstances surrounding the negotiation of the Jay Treaty between the United States and Britain. In the course of presiding over the criminal case against Aaron Burr, Chief Justice John Marshall gave some standing to such claims. Marshall indicated that in criminal cases the president could not be treated like an ordinary individual and might only be compelled to produce evidence if it was clearly shown by affidavit to be essential to the conduct of the case.
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Because of the Watergate affair, the term
executive privilege
has developed a bad odor, and subsequent presidents have sometimes used other phrases to deny congressional or judicial requests for information. For example, in refusing to allow the director of Homeland Security to testify before Congress in March, 2002, President Bush asserted a claim of “executive prerogative.”
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