Secrecy News

Much of the criticism directed at government secrecy is predicated on the idea that secrecy impedes government accountability and degrades public participation in the deliberative process.

But the secrecy system is also subject to growing internal criticism on altogether different grounds (pdf): namely, that it “has become dysfunctional in the face of current needs of national security.”

“The philosophy behind the policies for secrecy needs to move into the 21st Century and away from the WWII model which was deny to the enemy, grant to as few as possible,” said M.E. Bowman, a former FBI intelligence official who returned to government last year in a senior counterintelligence capacity.

“Today, in an information sharing environment USG [U.S. Government] personnel are just about always going to be in violation of one executive order (classification or access) or another (sharing). I truly believe that the USG would be better served with a different philosophy behind classification and access,” he told Secrecy News.

“I have never lost a court case on protecting secrecy, but that is because the criteria permitted me to win. In fact, a lot of the seminal FOIA law is argument that I developed in litigation. [But] I think the time is long past when we need to amend the criteria.”

Mr. Bowman elaborated his critique of the existing information security regime in an article that appeared last year in
Intelligencer, the journal of the Association of Former Intelligence Officers.

See “Dysfunctional Information Restrictions” by M.E. Bowman, Intelligencer, Fall/Winter 2006-2007, posted with the permission of the Association of Former Intelligence Officers.

“Despite the obvious difficulties, the need is real and of such a magnitude that changes to our heritage of information restrictions simply cannot be placed in the ‘too hard’ box,” he wrote. “We must update our philosophies of access and control, [and] change the guidelines that proceed from those philosophies.”

The growing use of the state secrets privilege could threaten basic constitutional rights, according to one recent critical analysis.

If current trends in government reliance on the state secrets privilege are allowed to continue, “it is questionable whether any constitutional complaint against the government involving classified information will ever be allowed to be adjudicated,” concluded Carrie Newton Lyons in a review published last year.

Ms. Lyons, a former CIA operations officer, presented her assessment in “The State Secrets Privilege: Expanding Its Scope Through Government Misuse” (pdf), Lewis & Clark Law Review, Volume 11, No. 1, Spring 2007.

Potential reforms to the state secrets privilege will be explored by Louis Fisher of the Law Library of Congress and other experts in a January 24 panel discussion sponsored by the Constitution Project.

Noteworthy new reports from the Congressional Research Service obtained by Secrecy News include the following (all pdf).

“Emerging Trends in the Security Architecture in Asia: Bilateral and Multilateral Ties Among the United States, Japan, Australia, and India,” January 7, 2008.

“Trafficking in Persons: U.S. Policy and Issues for Congress,” January 10, 2008.

“Perjury Under Federal Law: A Brief Overview,” updated December 27, 2007.

“Kosovo’s Future Status and U.S. Policy,” updated December 28, 2007.

“China’s Holdings of U.S. Securities: Implications for the U.S. Economy,” January 9, 2008.