Reining in Secrecy at Your Local Police Department

A small but significant step for civil liberties occurred yesterday. It will help preserve the role of local and state law enforcement as police departments that protect communities -- rather than as intelligence arms of the federal government. Foreign intelligence activities, almost by nature, require classification of information, but the current classification system raises huge challenges for accountable and effective law enforcement in American communities. The Reducing Over-Classification Act, authored by Rep. Jane Harman (D-Ca), which has just passed both the House and Senate with bipartisan support, marks an important gain in preserving the traditional openness of local law enforcement. Rep. Harman, a long-time leader on intelligence and defense matters, is a Member who understands well how protection of civil liberties and accountable government reinforces our national security.

The bill requires measures that will reduce overclassification of information held inside the Executive Branch as well as information shared by the federal government with state and local law enforcement. It authorizes Inspector General oversight of the national security classification system. As Steve Aftergood of the Federation of American Scientists writes: "by enlisting the Inspectors General to oversee agency compliance with current classification policies, the bill could make a significant contribution to addressing the problem of wrongful or unnecessary secrecy." He expects the bill to augment President Obama's efforts to rein in over-classification spelled out in his Executive Order 13526.

The bill also addresses the problem of sharing federal information with state and local law enforcement when the information is classified. While many, including Rep. Harman, have pushed for increased data sharing for counter-terrorism purposes, federal agencies, like the FBI, sometimes resist on the grounds that information that is classified cannot be shared with state and local officers who don't have federal security clearances. The current system has resulted in the anomalous situation, for example, where local officers participating in Joint Terrorism Task Forces will have access to information that they are not permitted to share with their department chief.

At the same time, civil libertarians like myself are concerned about the spread of a system with rampant, documented overclassification and a culture of secrecy antithetical to accountable government. This bill encourages an alternative solution than giving security clearances to ever more local officers and making local police departments part of the secret national security bureaucracy.

Instead, recognizing the perennial and indisputable phenomenon of over-classification and the costs to accountable and democratic government from such, the bill encourages less classification as a way to facilitate sharing between federal and local law enforcement agencies. It requires portions of documents to be separately evaluated, instead of marking an entire document classified because one sentence contains sensitive information, and training to reduce the temptation to simply mark everything classified. Perhaps most importantly, it requires the preparation of intelligence reports in unclassified as well as classified form: a long-overdue recognition that intelligence can and should be public when appropriate.

Just this month, it was revealed that the Pennsylvania Department of Homeland Security had put out an intelligence report that, as Governor Rendell put it when he apologized, disseminated information on the right of groups to peacefully protest, in violation of the Constitution. Mission creep by domestic intelligence agencies is always a danger, because of the opportunity to spy on protesters and dissenters and the best antidote to such tendencies is sunshine.

With the vast growth of federal and state intelligence and law enforcement activities focused on Americans since 9/11, maintaining the traditional openness of law enforcement rather than replacing it with the national security classification system of intelligence agencies is key to securing civil liberties in the future. This bill is an important step in doing so.