Joe Biden should reform U.S. secrecy practices.
Joe Biden should reform U.S. secrecy practices.
O ur ponderous national system of “classified information” was built by presidents — and a president can take it apart, too.
Is Joe Biden the man for the job? Probably not: He is unimaginative and risk-averse. But if he were looking for a way to make a major mark on both domestic and foreign policy without having to fight a war against Bashar al-Assad or Mitch McConnell, reforming official secrecy would be a good place to start.
He’ll have to begin by doing something difficult for a Democrat of his age: facing the facts about some beloved predecessors, including Franklin Roosevelt, Harry Truman, and, especially, John Kennedy, whose charming demeanor hid a temperament that would out-Nixon Nixon.
In 1961, President Kennedy gave a speech to the American Newspaper Publishers Association in which he (1) promised that his administration would not seek to censor American newspapers, and (2) asked that the nation’s newspaper publishers undertake that censorship on the government’s behalf. Ever the Cold Warrior and prefiguring the so-called War on Terror, Kennedy insisted that the nature of our conflict with the Soviet Union made meaningless traditional distinctions between times of war and times of peace.
We were, in Kennedy’s view, to consider ourselves eternally at war:
In time of war, the government and the press have customarily joined in an effort based largely on self-discipline, to prevent unauthorized disclosures to the enemy. In time of “clear and present danger,” the courts have held that even the privileged rights of the First Amendment must yield to the public’s need for national security.
Today no war has been declared—and however fierce the struggle may be, it may never be declared in the traditional fashion. Our way of life is under attack. Those who make themselves our enemy are advancing around the globe. The survival of our friends is in danger. And yet no war has been declared, no borders have been crossed by marching troops, no missiles have been fired.
If the press is awaiting a declaration of war before it imposes the self-discipline of combat conditions, then I can only say that no war ever posed a greater threat to our security. If you are awaiting a finding of “clear and present danger,” then I can only say that the danger has never been more clear and its presence has never been more imminent.
It requires a change in outlook, a change in tactics, a change in missions—by the government, by the people, by every businessman or labor leader, and by every newspaper.
The republic can be grateful that Kennedy failed in this effort, as in so much else. But the furtive mindset his speech communicated has only grown darker and more demanding in the ensuing decades. What Kennedy et al. could not accomplish through persuasion has been pursued through other means. The cult of official secrecy is deeply ingrained in American life and, especially, in American government. It needs to be dug out and dragged into the cleansing sunshine.
Next year will mark the 20th anniversary of the September 11 terrorist attacks, which launched a kind of new Cold War, in which “our way of life is under attack” while “those who make themselves our enemy are advancing around the globe.” The antiterrorism project, like the Cold War, has occasioned innovations in intelligence and surveillance as the war-making capacity takes in the whole of American life, an inevitable consequence of a war-making ideology that insists, as one Bush administration official put it in 2005, that “the battlefield is everywhere.” Secrecy is the guardian familiar of the war machine, and the U.S. government has long indulged the promiscuous, abusive, and irresponsible use of its secrecy powers.
From the Cold War through the campaigns against al-Qaeda and the Islamic State, Washington has not exactly spoken with a single voice, but it has operated under a remarkably broad and deep consensus. As a candidate, Barack Obama fretted that Dick Cheney might use national-security powers to peek at Americans’ library cards, but as president he went far beyond the claimed powers of the Bush administration and began a program of assassinating U.S. citizens abroad while asserting (though not acting on) the power to do the same at home: “The battlefield is everywhere.” Obama denounced George W. Bush as a warmonger and a would-be Big Brother while pointing to the Iraq War and the PATRIOT Act, and then selected as his vice president a stolid mediocrity named Joe Biden, who had voted for the Iraq War and the PATRIOT Act. He did that after edging out Hillary Rodham Clinton, another supporter of the Iraq War and the PATRIOT Act. And now Biden will be sworn in as president in January.
(Donald Trump has given Democrats the opportunity to forget how intensely they hated George W. Bush, how they insisted that he was a fascist who wouldn’t leave office, that he was building a Taliban-style fundamentalist police state, etc.)
Congress has made a lot of noise about our various cold wars, but it has in fact had remarkably little to say directly about the question of secrecy. To the extent that official secrecy is a matter of law, it is encoded in such elderly statutes as the Espionage Act of 1917 and the Atomic Energy Act of 1954. Mainly, official secrecy in Washington is governed by a series of executive orders. The military classification system existed as an extralegal arrangement for years before the run-up to World War II, when Franklin Roosevelt issued the first executive order recognizing it in March of 1940. Roosevelt was stretching: As Arthur Schlesinger tells the story in The Imperial Presidency, rather than asserting some power inherent in the office of the president, he preferred to lean on a 1938 law that gave him the power to prohibit photographs, maps, or schematics of military facilities and equipment. “Congress had hardly intended that this law apply to documents,” Schlesinger writes. But war has a way of trampling the law.
Truman, being Truman, made things worse, extending Roosevelt’s secrecy efforts through a series of executive orders that expanded secrecy powers from military and national-security agencies to every department in the government. “Unlike Roosevelt,” Schlesinger writes, “Truman made no effort to cite statutory authority; and the remarkable breadth and vagueness of the order roused much criticism.” So much, in fact, that Dwight Eisenhower partially reversed Truman’s aggrandizements in 1953, reducing the number of agencies empowered to classify information. But the effort was insufficient. The executive orders had already created new security desks, and people paid to sit at them, in agencies across the U.S. government, and, like bureaucrats everywhere, those people fought for their positions, perks, pensions, and prestige.
Since Roosevelt’s first executive order on secrecy, presidents have seen fit to update their secrecy powers — generally expanding them — year after year after year. The current ruling document, Executive Order 13526, was issued by Barack Obama in 2009. Those wielding “classified” stamps have not been particularly careful about their power, and “classified” information includes everything from newspaper articles and other public sources to routine communications between administrators. As long ago as the 1950s, Schlesinger reports, the abuse of these powers was so widespread as to inspire “feelings that vary from indifference to active contempt,” as one official report put it. A memo from one senior military official to another complaining that too many trivial items were classified “top secret” not only had no effect, but was itself marked “top secret.” Per former CIA director Michael Hayden, “Everything’s secret. I got an email saying, ‘Merry Christmas.’ It carried a Top Secret NSA classification marking.”
As one observer drily put it, “Information is born classified.”
The indulgent attitude toward official secrecy allows the government to use powers meant to protect national security for other purposes, from avoiding professional and political embarrassment to bureaucratic turf-protection and worse. It feeds into the conspiracy-minded mistrust that characterizes American politics on both sides of the aisle, undermining confidence in our institutions, which ultimately undermines the stability of those institutions.
We don’t need another blue-ribbon commission to study this problem — as Mike Giglio notes, there have been eight of them already, and they all came to the same conclusion: We have too many secrets, and too little accountability and oversight in the secrecy process. What we need is action — and, because of the way this edifice of shadows was built, a president acting unilaterally could do a great deal to reform it. There is, of course, an important role for Congress to play, too: The designation and keeping of state secrets should be a matter of clear and well-fleshed-out law — law made by lawmakers in the legislature rather than a century-long series of executive orders.
Our system of classified information is a mess mostly made in the White House, and much of it can be cleaned up In the White House, too. If Joe Biden is looking for the opportunity to do something meaningful that can be accomplished through executive action, that would be a good place to start.