Thank you, Austin, for that kind introduction and for giving me the opportunity to participate in this conference. You’ve assembled a great group of scholars here this weekend, and it’s an honor to be among them.
I know this conference is covering a broad range of constitutional issues, but today I want to talk to you about something that is very near and dear to my heart—protecting openness in government—something that has dominated my work in public service for three decades.
Openness in government is at the very core of our Constitution. James Madison, author of the Bill of Rights, said that “a popular government without popular information or the means of acquiring it is but a prologue to farce or tragedy or perhaps both.”
Five years after the attacks of 9/11, this principle of openness that Madison put forward to the newly formed republic is itself under attack, as we find ourselves living in an unstable, uncertain, and warring world.
In this difficult and new climate, we find our government participating in a precarious balancing act: trying to balance between protecting national security interests on the one hand, while preserving our civil liberties on the other.
While the threats we face today are new, this balancing act is not.
We saw it play out during World War I, when then Attorney General Mitchell Palmer raided thousands of suspected radical havens around the country; arrested 6,000 people; detained them for weeks without access to attorneys or their families; and even deported some suspected foreign radicals to Russia—where they arrived, in the middle of a civil war, speaking no Russian and knowing no one.
We saw it again during World War II.
When, after Pearl Harbor, the Roosevelt administration issued an executive order to remove Japanese-Americans from their homes along the West Coast and place them in internment camps. And we did so in the name of national security.
Today, we look back on those times with regret and contrition. We look back at those times and rationalize that those in power simply got the balance wrong. But, the truth is that thinking about this as a balance is wrong. A choice between upholding our civil liberties in the abstract and protecting the safety of our people in reality is no choice at all—the outcome is pre-determined and the scales will always be skewed towards security. And when our country is faced with such menacing threats, often the first of our liberties to be sacrificed is our right to access information.
As Madison argued 200 years ago, making such a sacrifice poses severe risks to our democracy.
And I would also argue that today, it poses severe risks to our safety and our security.
Because only when we are a well-informed, involved, and free people can we truly be secure.
Before I explain that a little more, let me start by qualifying it.
It is beyond dispute that some information must be closely held to protect national security and to engage in effective diplomacy. And often our interest in protecting the method by which information was obtained is even greater than our interest in protecting its content. For example, when disclosures of classified information mention satellite photos or intercepted phone conversations, other nations or organizations often take heed and conceal their activities.
It is also beyond dispute that unauthorized disclosures can be extraordinarily harmful to our national security interests and that far too many such disclosures occur. They damage our intelligence relationships abroad, compromise intelligence gathering, jeopardize lives, and increase the threat of terrorism.
The need for clandestine actions today is clear: we face an enemy who is neither easily seen nor deterred, but hell-bent on taking American lives. But this legitimate need for operational security has been used by the current administration to make broad policies that hide information from public scrutiny, and ultimately, make us less safe.
Let me give you an example.
Five years after 9/11, customs inspectors are still only able to open one to two percent of shipping containers, and only physically inspect five percent of the containers that enter the United States. The government has attempted to conceal this fact, fearing that terrorists might take advantage of our lax port security. By doing so, though, the public has been denied the right to assess threats to their communities; and they have been denied the information necessary to demand that their leaders take steps to make them safer.
This is not an isolated incident but an alarming trend.
Rather than acting on the advice of then Environmental Protection Agency Administrator, Christine Todd Whitman, to reduce the risk at chemical plants by reducing the threat posed by the most dangerous chemicals and rather than listening to then assistant to the President for Homeland Security, Tom Ridge, the Bush administration caved to the chemical industry and allowed it to voluntarily take steps to increase security by adding a few more guard dogs and chain link fences at its most dangerous, hazardous sites.
The industry is not required to even report their voluntary actions taken. So, the government has no idea what they’ve done to minimize terrorist threats, and people in the surrounding communities have no idea what’s going on behind those chain-linked fences, and no idea of the threats brewing in their own backyards. The administration’s strategy: eliminate the information on chemical threats from public scrutiny.
Let me give you one more example.
In a 2003 meeting of the National Academy of Sciences, administration officials warned that if the scientific journals did not voluntarily censor articles that might compromise national security, the White House would likely take steps towards censorship. The Academy heeded the government’s warning, and agreed to censor their articles.
But such censorship did not take into account the scientific merit of the work. In fact, while most scientists agree that we need better control of feed stocks that can be used to make bioweapons, the new policy imposed on the scientific community inevitably deterred research and prevented the dissemination of information that could lead to new defenses against biological attacks.
In short, hiding our vulnerabilities and pretending they don’t exist is not an effective national security strategy.
And if you need any more evidence to that effect, the tragic events of September 11th provide powerful and profoundly sad proof of how dangerous such a strategy can be.
In its final report, the 9/11 commission cited several instances in which secrecy hindered our security that fateful day.
For example, it found that the way in which the United States conducted counterterrorist operations was unnecessarily complicated, confusing, overly expensive, and secretive. Secrecy in this instance prevented different military, law enforcement and intelligence officials from sharing relevant information and mounting a singular, effective defense.
To remedy this, the commission recommended that the overall amount of money appropriated for national intelligence and its agencies be made public and that Congress should pass a separate appropriations act for intelligence. Thus, it would be forced to defend the broad allocations of how tens of billions of dollars were being spent. Without the disclosure of even broad categorical amounts, the commission concluded it would be difficult to “judge priorities or foster accountability.” Additionally, the commission revealed an even more devastating consequence to excessive secrecy.
The report referenced an interrogation in which the hijackers’ bankroller stated that if the organizers had known that the so-called 20th hijacker, Zacarias Moussaoui, had been arrested at his Minnesota flight school on immigration charges, then the attacks probably would have been aborted for fear that Moussaoui would have blown their cover. The commission concluded that only “publicity” could have derailed the attacks. Despite this—and despite history’s previous warnings—the current administration continues to operate in the shadows, compromising our national security and threatening the future of our democracy.
A very talented friend of mine named Matt Wuerker, summarizes the security argument perhaps better than I can, using a much more creative and entertaining method.
To be fair to the Bush administration, though, its obsession with secrecy really began before 9/11. At its root cause is the administration’s embrace of the unitary executive theory—a theory that attributes to the executive branch almost unlimited power over government officials and government operations.
The president has acted on this theory and directed officials to withhold executive branch information for which there is no plausible reason to keep hidden, at the expense of the other branches and of the American people.
Such a blanket assertion of power has 3 specific and far-reaching consequences for open government.
First, it has led the administration to invoke the 50-year old state secrets privilege at a radically higher clip than ever before.
The modern day state secrets privilege stems from the 1953 case, United States v. Reynolds. Reynolds emerged from a suit brought by the relatives of passengers killed in a mysterious crash of a B-29 airplane in 1948.
The relatives sued, hoping to gain access to the plane’s accident reports, which they hoped might tell them why the plane went down, killing their loved ones. These hopes were quickly dismissed, however, when the government successfully claimed that it possessed a privilege to withhold documents that contained “state secrets.” Access to the plane’s history was blocked, and the modern state secrets privilege was born.
Decades later, the government declassified the documents. Soon it was revealed that the plane had a history of mechanical failures and accidents. Moreover, the Air Force had not complied with maintenance directives for the plane, including preventive maintenance orders on the engine, which, as we now know, caught fire and resulted in the death of the passengers.
In the wake of Reynolds, the courts began to defer to the government’s assertion of privilege as long as it could establish a “reasonable danger” in disclosure. Such deference usually comes with little scrutiny.
Even so, previous administrations have rarely invoked the state secrets privilege. In fact, in the time between Reynolds and September 11th, nine presidents claimed the privilege a collective total of just 55 times; in the five years since the attacks, the Bush administration has already invoked the privilege 22 times. And, unfortunately, he still has two and a half more years to go.
As in the Reynolds case, the privilege has been invoked by the current administration to hide potentially embarrassing information from reaching the public.
Take the case of Khaled El-Masri.
He alleged that the government had kidnapped and tortured him in a case of mistaken identity. In the six months of his captivity, his wife and children, believing him to be dead, left Germany—and him—for Lebanon. El-Masri sued the CIA for his capture and treatment, but the government succeeded in having his case dismissed by invoking the state secrets privilege— claiming that national security would be harmed even by admission or denial of his charges.
In addition to its invocation of the state secrets privilege, there is a second consequence to the administration’s exercise of unitary executive theory: it has led to massive over-classification.
Let me give you some examples:
- Since 2002, 50,000 pages of declassified information has been re-classified;
- The number of classification actions undertaken annually nearly doubled from 2001 to
- In 2004, the government reached an all-time high of 15.6 million classification actions; and
- Since 2002, more than 6,000 public documents have been removed from government websites—documents such as chemical facility risk management plans, Department of Energy reports on the dangers of liquefied gas fuel, and a report on chemical site security that concluded “security around chemical transportation assets ranged from poor to non-existent.”
Most recently, this obsession with classification has lead the Bush administration to black out the number of missiles and bombers we had from the Nixon era.
Here you can see the information before it was redacted.
And here you can see the redacted version, blacking out the number of weapons we had, even though historians and officials in the old Soviet Union have long had this information on their research shelves.
But this recent action is not just of historical importance. Transparency in the number of weapons we possessed served, in itself, as a deterrent.
By letting our adversaries know what weapons—and how many weapons—we had, we were able to establish an effective defense posture. It was important from both a deterrence perspective and from the perspective of reducing the risk of nuclear miscalculation that the Soviet Union understood our force posture and our nuclear doctrine.
The Bush administration’s penchant for blacking out bits of our history is in direct contrast to the policies of the one before it—ones I happened to work on.
I’m proud to say that the Clinton administration took many significant steps to promote open government.
Under Vice President Gore’s leadership, for example, we were able to declassify overhead images from the Corona, Argon, and Lanyard intelligence satellite missions, as well as under seas military sonar data.
The declassified material has since proven to be very valuable to the environmental community’s efforts to study and address the advance of climate change.
While we were able to break down numerous barriers to open government during the Clinton administration, one in particular stands out in this context.
President Clinton issued Executive Order 12958, which set tough standards for classifying documents and led to an unprecedented effort to declassify millions of pages from our nation’s diplomatic and national security history.
During the years that this Executive Order was in place, its policies resulted in the declassification of over 1 billion pages of historically valuable records, with the prospect of many hundreds of millions more pages to be declassified in the next few years. To give you a bit of a comparison, in the previous 15 years, the government had declassified a total of 188 million pages.
For many future generations, historians will rely on the information contained in these declassified documents. Scholars will explore the past to help guide the future. If we don’t understand our past we are certain to repeat its mistakes. The fact that the Bush administration is now systematically hiding parts of our history is not only disappointing to me personally, but more importantly, it is dangerous to our democracy’s future.
There is one more far-reaching consequence of the administration’s embrace of the unitary executive theory that I want to cover here: we are on the verge of creating an
Official Secrets Act through the administration’s pursuit of leakers and threats to prosecute journalists.
After The New York Times first revealed the existence of the president’s domestic surveillance program, Attorney
General Alberto Gonzales hinted that there was a “possibility” that journalists could be prosecuted under the 1917 Espionage Act for publishing classified information. Worse still, a federal judge in Alexandria, Virginia accepted the Justice Department’s sweeping interpretation of the 89 year-old law.
If allowed to stand by higher courts, every national security journalist and researcher in America could be threatened with prison time. In fact, this summer, Senator Kit Bond of Missouri proposed a bill that would make it easier for the government to prosecute leakers by eliminating the need to prove actual harm to national security resulting from disclosure.
Every administration is forced to contend with the terrible consequences of national security leaks, and speaking from my own experience, the Clinton administration was no exception.
But it’s how an administration chooses to handle them and what they do to prevent them that varies and has important consequences.
President Clinton took a much different path than our current president.
In 2000, President Clinton vetoed the 2001 Intelligence Authorization Act containing the so-called Official Secrets Act provision. That provision would have made any “unauthorized” disclosure of classified information a felony.
The president understood the gravity of the problem that was being addressed by that provision, but he also understood that it was his obligation to protect the rights of citizens to receive information necessary for democracy to work.
He reasoned that the best way to encourage respect for our most important secrets was to set clear standards, demand through administrative enforcement that they be respected, and perhaps, most importantly, to return secrecy to a limited but necessary role, ultimately reducing the number of secrets overall.
That’s the principle that drove President Clinton’s commitment to protect secrets critical to our national security and protect the public, while promoting greater openness in government.
And that’s the very principle President Bush has turned on its head in a very short time.
I have spent a good portion of my time here today, detailing how our current administration has done that; so let me now turn to the question of how we can reverse this trend towards secrecy.
Can we imagine a Constitution that effectively guards against future assaults on open government?”
I certainly think we can.
And in talking about what that constitution might look like, I want to briefly consider three lines of inquiry.
First, is there anything in the text and interpretational history of the Constitution that suggests that a right to government information exists?
Second, could we create such a right
via a constitutional amendment?
And third, can we address the problem via statute and avoid the constitutional thicket altogether?
Let me take up each of these questions in turn.
The Constitution does provide the other branches with a right to access executive branch information. While Article I does not contain a specific provision granting the legislative branch access to information, the Supreme Court has repeatedly affirmed the Congress’s right to access documents held by the Executive branch, in recognition of the fact that Congress depends on information obtained from the executive branch to perform its Article I Constitutional functions.
The Supreme Court has repeatedly upheld Congress’s inherent power to investigate and to secure such information by issuing subpoenas and by punishing contempt.
Congress frequently enacts statutory reporting requirements to supplement its power to investigate, and where necessary it has used its subpoena power to compel the production of executive branch materials. I have some personal experience with that.
Likewise the Supreme Court has upheld the judicial branch’s right to access executive branch records, including White House records—even against a claim of executive privilege—to fulfill its Constitutional functions. That precedent was established in US v. Nixon, where a unanimous Supreme Court required the president to turn over the Watergate tapes.
When it comes to the public’s right to know, however, the constitutional text and precedent are thin or non-existent.
If the Supreme Court would recognize it, it would be following the lead of national supreme courts in India, South Korea, and Costa Rica. These courts rooted this right in freedom of expression and political participation. Our own First Amendment, coupled with the values of self-government found in the Preamble, could similarly comprise a public right to government information.
But it is not reasonable to believe that this Supreme Court will recognize such a right anytime soon; therefore, we might also consider a second option: a constitutional amendment. While James Madison, in Federalist No. 49, argued that we should only amend the
Constitution on “great and extraordinary occasions,” the new class of threats we face in the 21st century, and the temptations for excessive secrecy in response, may make an amendment a viable option.
If we went this route, provisions for access to information in the constitutions of recently formed states like South Africa and Poland provide some guidance.
These nations, emerging from tyranny and oppression, felt it necessary to specifically place in their constitutions provisions establishing the existence of a universal right to government-held information. The sections then mandate that the legislature take action to structure the right, weighing financial costs and security interests against the public’s right to know. An American version of such a provision could establish an individual right of access to government-controlled information and then charge the Congress with structuring the vindication of this right through a more expansive version of the Freedom of Information Act.
Still, a third and more politically viable option may be for Congress to exercise its powers under Article I and guard against secrecy via statute.
This was one recommendation put forth by the 1997 Commission on Protecting and Reducing Government Secrecy—the first commission to examine government secrecy in over 40 years.
I had the pleasure to serve on it and serve with its chair, the late Senator Daniel
Patrick Moynihan from New York, one of the most ardent and articulate advocates for open government in recent history.
To improve the functioning of the secrecy system, the commission recommended a statute that set forth rules to define what could be called a secret, thus establishing a basis by which to classify information.
Section one of the proposed statutory framework declared that information should only be classified if there is a demonstrable national security need to do so, with the goal of keeping classification to an absolute minimum consistent with these interests.
Other sections supported this recommendation by setting declassification deadlines and arguing that if there’s any doubt as to whether a document should be protected, it should not be classified.
In addition to creating such a regulatory regime, Congress could also choose to amend existing law, starting by regulating the state secrets privilege.
Beginning from a presumption of openness, Congress could direct courts to first consider whether the information should categorically be kept secret. Courts could then weigh the harms and benefits of public disclosure, and then consider whether disclosure reveals vulnerabilities correctible by individual or public action.
Making this determination could be accomplished via an in camera review of documents claimed protected by the state secrets privilege. If this review proves too daunting, the “Vaughn” index—which is used by some courts in FOIA cases and which I won’t describe in detail here—presents an alternative.
Today, I have put forth a few options that might lead to an effective legal framework for promoting openness and enhancing security in the 21st century.
And while we are here today to imagine a new constitution, I think that if the American people begin to push for change now, we could, in fact, make our imaginings a reality down the road.
We know it can be done.
It happened in 1952, at the height of McCarthyism.
While others hid from the agents of the House Committee on Un-American Activities and the Senate’s Internal Security Subcommittee, the American Society of Newspaper Editors asked University of Missouri Professor Harold Cross to dig deep into our nation’s history and develop the legal and policy case that became the foundation of the Freedom of Information Act.
When his work was published in 1953, he summarized his efforts in one short but poignant sentence. He said, “The right to speak and the right to print, without the right to know, are pretty empty.”
Cross’s hard work was later augmented by the courageous leadership of legislators like the legendary Congressman John Moss of California and Senator Ed Long of Missouri.
The authors of the FOIA knocked down barriers to openness and enshrined Professor Cross’s right to know while addressing the equally compelling need to protect national security and personal privacy.
Those authors working with President Johnson put openness back at the heart of our
nation, they gave legal weight to the principle that a government’s legitimacy depends on the trust of the governed, and they breathed new life into Madison’s notion of open government.
The road to FOIA’s enactment was certainly a long one. It was a hard one, and I think, it is one that has particular resonance today.
Because back then, just as we are now, we were fighting an atypical war abroad. Then, just as now, we were faced with heightened fear, anxiety, and uncertainty here at home. And back then, just as we do now, we faced an overwhelming temptation to respond by giving up our right to know for our need to feel secure.
This is the challenge our nation has struggled with since the founding of the republic; this is the challenge we must continue to confront in the coming days ahead; and this is the time to fight for our democracy with eyes wide open.
Only if we do so now, can we hope to emerge with a system worth protecting for future generations to come.