POLITICS
06/27/2013 07:21 pm ET

Government Secrecy Undermines Government's Ability To Keep Secrets

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Edward Snowden's leaks about National Security Administration monitoring Internet activity and the collection of metadata from cell phone calls are the second major U.S. security leak in three years. While some public officials have lashed out at Snowden and the journalists who published the documents he leaked, the reaction from much of the country has been disinterested and restrained.

There may be a reason for that. There is a point at which the government has so abused its power to keep secrets that the legitimacy of that power begins to corrode. And there is a point at which the government has been so careless with its power to classify information as secret that the stigma for exposing that information begins to fade. We may have reached that point.

"Oh, I think that's definitely true," said Elizabeth Goitein, co-director of the Brennan Center Liberty & National Security program. "When people start to see classification as arbitrary, and that the government is keeping secrets that have no national security value, they lose respect for classification. And so you get someone like Bradley Manning, who saw this vast amount of information that had been classified that shouldn't have been. And so he saw no harm in dumping all of this information that he pulled from the system. Now I don't agree that what he did was harmless, but I do agree with some of his criticisms. And I think we're likely to see more of this if we address some of these problems."

During President Dwight D. Eisenhower's administration in the 1950s, Secretary of Defense Charles Wilson ordered a study of government classification in an effort to prevent leaks. The report found that over-classification of innocuous information risked creating contempt for government secrecy that made leaks of genuinely sensitive documents more likely. The report compared the phenomenon to alcohol prohibition, where the public was so disdainful of a law seen as unnecessary and unreasonable that the law itself was impossible to enforce. "When much is classified that should not be classified at all," the report concluded, "respect for the system is diminished and the extra effort required to adhere faithfully to the security procedures seems unreasonable."

A 2011 paper Goitein co-authored for the Brennan Center cites critics in and out of government who have been warning for decades that over-classification threatens the legitimacy of government secret-keeping powers. Former Supreme Court Justice Potter Stewart warned in 1971 that "when everything is classified, nothing is classified." J. William Leonard, a former director of the Information Security Oversight Office who fought the expansive secrecy claims made by the George W. Bush administration: "Once individuals start losing faith in the integrity of the process, we have an uphill road in terms of having people comply." Former National Security Archive director Thomas Blanton testified to Congress in 2010 that "we have low fences around vast prairies of government secrets, when what we need are high fences around small graveyards of the real secrets."

By their very nature, governments are secretive, and prone to grow more secretive over time. "Privacy increases power," said Bruce Schneier, the renowned cryptology expert and security specialist. "So if you take privacy from the government, you reduce its power, and you increase liberty. If you give more privacy to the government, you increase its power, and you reduce liberty." The 2011 Brennan Center report points out that the information-is-power axiom drives not only the relationship between the government and the governed, but relationships between government agencies -- to the detriment of the public. In bureaucratic turf wars, withholding information can give one agency an advantage over another. The 9/11 commission concluded that information-hoarding may have prevented the government from heading off the Sept. 11 terrorist attacks.

The Brennan Center report also notes that even at the individual level, every incentive within a government agency points toward more classification. Information is power, and exclusive access to information is especially powerful. Yet there's no accountability for government employees who improperly classify the wrong information, or too much information. The report couldn't find a single instance in which a government employee was disciplined for keeping too much information from the public.

But it isn't just that the U.S. government has grown more secretive. Since about 2000, it has also increased its rate of hiding information. According to the Information Security Office, for example, the federal government made just under 11 million classifications in 2000. Last year, it made more than 95 million. In 2001, then-Attorney General John Ashcroft issued a memo informing federal agencies that the Justice Department would vigorously defend them when they denied Freedom of Information Act requests. It was a shift in policy that essentially switched from erring on the side of transparency to erring on the side of secrecy.

After the historically secretive Bush administration, President Barack Obama promised to bring more accountability to government, at one point vowing "the most transparent administration in history." That hasn't happened. Obama's Department of Justice and Department of Homeland Security, two cabinet agencies of vital interest to civil liberties advocates, have been particularly bad.

Last fall, Bloomberg News tested the 20 federal cabinet agencies on compliance with the Freedom of Information Act's timeliness requirement -- and 19 of them failed. By the final year of Obama's first term, the federal government was fighting 28 percent more FOIA lawsuits than in the final year of Bush's presidency. The last two administrations have also overseen expanded use of the state secrets privilege, which allows the federal government to dismiss lawsuits simply by asserting that a trial would expose national security secrets. It's a doctrine that has historically been used not only to protect genuine state secrets, but to cover up embarrassing or illegal government actions.

Despite his promises, Obama's administration has recently been rebuked by two federal judges for secrecy. He has also been scolded by members of his own party.

Secret agencies dealing in secret information also create secret law, like the courts created under the Foreign Intelligence Surveillance Act, or FISA. "With FISA, you have a secret court issuing secret warrants for a secret government program," said Schneier. "It's just wrong on every level." Goitein added. "Even the administration's legal justification for all of this is secret. So it can't be debated. They're arguing that democracy itself could pose a threat to national security."

This vast national security apparatus is expanding its personnel as well as its secrecy. At least 2.4 million Americans now have some sort of security clearance. Oddly, at the same time, the number of government employees authorized to classify information is shrinking, to just under 3,000. So an increasingly small group of people are classifying huge swaths of information that is accessible by an increasingly large group of people cleared to consume it.

And then there's how all of this secrecy is used. A system that allows for the classification of arbitrary information is a handy tool to cover up government abuse -- or embarrassment. In fact, there's an example from the early years of the modern security era. In the 1940s, the Atomic Energy Commission wrote a memo urging the classification of any documents detailing "medical experiments on humans" conducted by the federal government. The justification wasn't national security, but to prevent lawsuits and public criticism. In 1993, after reviewing documents that had been classified during the Vietnam War, then-Sen. John Kerry concluded the documents were "more often than not ... classified to hide negative political information, not secrets." Kerry today presides over the State Department, a copious source of classified information.

The Bush administration took classification-as-CYA a step further. Some in Bush's administration actually argued that allowing for a fully-informed debate on White House antiterror policies might cause those policies to be rejected by the public. Once again, the argument was that national security can't coexist with democracy. And both Bush and Obama have been accused of selectively declassifying sensitive information for political purposes, or two sway public opinion on a particular policy, from the Iraq war to the Obama-flattering film "Zero Dark Thirty."

Perhaps that's why the Obama administration and many in Congress have called for Edward Snowden's head on a spike, but the public doesn't appear all that concerned. Opinion polls so far have shown that while a majority or plurality of the American public believes that Snowden should be prosecuted, a majority or plurality also believes his leaks did more good than harm. That suggests an American public that understands the need for laws to protect national secrets, but believes the government is abusing its power to keep them.

Schneier cut to the heart of the matter. "What we know is that when the government classifies information, there is little reason for us to trust that it's classifying information properly. And that's a big problem."

Ultimately, it may pose problems for our future as an open, democratic society, and for the legitimacy of the government's power to keep even the secrets that matter.

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