On Wednesday, Scott Shane wrote in the New York Times:
Speaking hours after the world learned that a C.I.A. drone strike had killed Anwar al-Awlaki in Yemen, President Obama could still not say the words “drone” or “C.I.A.” That’s classified.
Instead, in an appearance at a Virginia military base just before midday Friday, the president said that Mr. Awlaki, the American cleric who had joined Al Qaeda’s branch in Yemen, “was killed” and that this “significant milestone” was “a tribute to our intelligence community.” The president’s careful language was the latest reflection of a growing phenomenon: information that is public but classified.
The passage demonstrates well how classification undercuts meaningful public discussion of vital national-security issues. The CIA’s drone war in Pakistan and Yemen is being talked about around the world; in Pakistan, details about strikes are reported more promptly and deeply than in the United States. Only in the U.S. is the public subjected to stilted, bizarrely passive statements from officials about matters that are common knowledge. The reason: here, the CIA drone program is “covert action.” Officially acknowledging its existence could be grounds for a criminal prosecution.
To take another example, this past weekend the Washington Post disclosed that the Justice Department’s Office of Legal Counsel (OLC), notorious most recently for its series of opinions purporting to authorize torture and warrantless surveillance, had issued a secret memorandum telling President Obama he had the authority, under the right circumstances, to authorize the extrajudicial killing of al-Awlaki, a U.S. citizen. The existence of the memo became known several days after al-Awlaki was killed in the strike that President Obama couldn’t bring himself to describe accurately. Obama, recall, entered office pledging that his government wouldn’t craft legal policy in secret, and burnished this pledge by publishing a slew of unctuous OLC memoranda dealing with torture and warrantless surveillance, among other issues. So what do we make of the al-Awlaki memo? With him dead, all rationale for withholding it evaporated, but the document, which lays the legal foundations for a military program of growing significance, remains inexplicably secret — leaving policy experts to guess at the Administration’s principles from the bits and pieces leaked by its surrogates.
One final example: the plight of career foreign-service officer Peter Van Buren, who found himself subjected to intense interrogation by federal agents after writing a blog post that linked to a site where State Department cables released by WikiLeaks had been published. It was a new extension of the U.S. government’s wacky policy of denying its employees the right to see and read documents that everyone else in the world can see and read (including the enemies from whom the papers were apparently to be kept secret). The strategy represents a perfect inversion of the purpose of secrecy policies: now only U.S. government officials — the very people who might be called upon to explain or defend sensitive documents — are forbidden to read them. The idea that being uninformed better arms diplomats for public diplomacy is truly novel.
These incidents all point to cascading problems with zealous and increasingly irrational classification policies. The claim that they keep the country safe is wearing thin. The alternative explanation is more compelling: they exist to build the power and exclusivity of America’s unelected national-security elites. And they serve to keep the public ignorant, to shield indefensible and poorly conceived policies from public discussion, and to prevent oversight by Congress and independent rulings by the courts.
New York University’s Brennan Center has just published a report making a series of modest suggestions for counteracting overclassification:
Periodic audits by the Inspector General of relevant agencies to identify classification mistakes
Modest rewards to “whistleblowers” who report classification abuses
Possible suspension or loss of classification rights for civil servants found to seriously abuse the classification process.
The report’s co-author, Elizabeth Goitein, told me she was optimistic that the Obama Administration would take at least some steps to limit the proliferation of classified information. But she recognized that broader secrecy reform remains unlikely, especially since most judges and members of Congress tend to accept executive-branch claims of secrecy without question. Goitein specifically challenged the Justice Department’s decision to keep the al-Awlaki memorandum secret:
The withholding of the legal basis for targeting al-Awlaki is inappropriate for two reasons. First, the world already knows that the U.S. killed al-Awlaki; how could it possibly harm national security to disclose why the Justice Department believes the killing was legal? Second, unless rejected by the President or superseded by a court ruling, OLC’s legal interpretations are binding on the executive branch. Undisclosed OLC opinions are therefore a kind of “secret law,” something that has no place in a democracy.