SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2010, Issue No. 41
May 20, 2010

Secrecy News Blog: http://www.fas.org/blog/secrecy/

DOES CANDOR REQUIRE SECRECY? A CRITICAL REVIEW

When the Supreme Court ordered the Nixon White House to comply with a subpoena for the Watergate tapes in the 1974 case of United States v. Nixon, it also endorsed the general proposition that secrecy is essential to presidential deliberations since it permits greater candor and therefore promotes a superior policy outcome. "A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately," the Court said.

The premise that candor is incompatible with disclosure has become a cornerstone of the edifice of government secrecy, and an axiom of freedom of information policy, which provides an exemption for deliberative records. Yet it is mistaken, according to an iconoclastic new law review paper, and should be corrected.

It seems intuitively obvious that private discussions lend themselves to greater candor than do public ones. In private, anyone might be more willing to reveal ignorance or uncertainty, to express personal emotion, or to consider risky or improbable alternatives.

But this is "a highly contestable view of human nature," write Eric Lane, Frederick A.O. Schwarz, Jr., and Emily Berman, and it has little empirical basis. What's worse, they say, is that the equation of candor and confidentiality fails to take into account the corrosive effects of secrecy.

In practice, according to the authors, secrecy may actually discourage candor. "When policy deliberations are deemed likely to remain secret, dissenters from the majority view might be more reluctant to give voice to their concerns.... And decision makers themselves might feel freer to silence dissenters when they do not expect their decision-making processes to be subject to scrutiny." This was often reportedly the case during the George W. Bush Administration when, according to multiple accounts cited in the paper, presidential advisors declined to question or to challenge confidential policy judgments.

Furthermore, secrecy is not necessary for candor. Congress rarely invokes secrecy in its deliberations, though it is constitutionally authorized to do so. As is demonstrated in many political contexts, it is perfectly possible for policy discussions to be both open and candid, with no detrimental effect. (Under San Francisco's unusually bold 1999 Sunshine Ordinance, observed Joseph Lorenzo Hall of UC Berkeley, deliberative material is entirely subject to disclosure.)

Finally, the authors write, candor itself does not necessarily promote good decision making. "While candor may have allowed the president to explore the possibility of engaging the CIA to interfere with an FBI investigation, surely such candor should not be encouraged by the promise of secrecy.... In many of the contexts in which candor is used as a justification for secrecy, the candor that is being shielded is candor that disserves the public interest."

The authors emphasize that they do not categorically oppose confidential deliberations nor do they advocate that every official meeting be broadcast on live television. Rather, they argue that the presumption of deliberative secrecy adopted by the "Nixon" Court is unjustified by principle or practice, and that it should be replaced by a general presumption of openness, especially with respect to congressional requests for access to executive branch records.

"The presumption established by the 'Nixon' Court endorsed and furthered a particular perception of the nature of government decision making -- that it is a process whose details should remain hidden behind a veil of secrecy.... It gives presidents and their advisors reason to believe that secrecy is standard operating procedure."

"Dismantling the 'Nixon' canon -- as this Article advocates -- would instead foster a culture where the expectations were reversed, where ideas about what is appropriate for public discussion are expanded, and where secrecy must be justified by a risk of significant harm -- not harm to the political prospects of the incumbent officials, but to the interests of the nation as a whole."

See "Too Big a Canon in the President's Arsenal: Another Look at United States v. Nixon" by Eric Lane, Frederick A.O. Schwarz, Jr., and Emily Berman, George Mason Law Review, volume 17, no. 3, Spring 2010:

NECESSARY SECRETS: PANEL DISCUSSION

The Hudson Institute will host a discussion of the new book "Necessary Secrets: National Security, the Media, and the Rule of Law" by Gabriel Schoenfeld on Tuesday, May 25. The book is a provocative account of the history and significance of "leaks" of classified information to the news media. The author laments the growing number and impact of such leaks, and generally favors more vigorous enforcement of laws against them. The May 25 discussion will feature Mr. Schoenfeld, Benjamin Wittes of the Brookings Institution, and myself. There will be a keynote address by former CIA director Gen. Michael Hayden.

JASON: BASIC RESEARCH AT THE PENTAGON IS "BROKEN"

Basic scientific research sponsored by the Department of Defense has suffered a precipitous decline in recent years, according to a newly disclosed 2009 report from the JASON defense advisory panel.

"Basic research" refers to the investigation of fundamental phenomena, and contrasts with "applied research" that aims to meet a specific mission requirement or to solve a specified problem.

"Over the past decade, there has been an exodus of scientific and technical expertise from the U.S. government and, in particular, from the DoD [basic] research enterprise," the JASONs said.

"Gone are many of the technically literate program officers who plied the streets of the scientific community to find those remarkable people who could help shape the future. Gone too are many of the scientists and engineers in the academic community [who were supported by DoD basic research contracts] and who contributed to revolutionary advances that changed the landscape of modern war fighting. And most importantly, lost is the opportunity to develop the next generation of scientific talent who would otherwise have been trained and capable of carrying the research enterprise forward."

“Despite the importance of DoD Basic Research, we believe that important aspects of the DoD basic research programs are ‘broken’ to an extent that neither throwing more money at these problems nor simple changes in procedures and definitions will fix them,” the report said.

The JASONs nevertheless offer a series of recommendations concerning program organization and personnel recruitment to strengthen basic research. Among other things, they say that DoD should reject the "peer review" model for evaluating funding decisions, since that tends to reinforce the status quo, and should instead provide funding to exceptional individuals. They favorably cite Nobel laureate Luis Alvarez saying: "In my considered opinion the peer review system, in which proposals rather than proposers are reviewed, is the greatest disaster to be visited upon the scientific community this century...."

The JASON report was originally marked "for official use only." When the Federation of American Scientists requested it last year under the Freedom of Information Act, most of the document was withheld as "deliberative." But upon appeal, DoD agreed this month to release the entire report. To accompany the release, Alan R. Shaffer, Director of Defense Research and Engineering, issued a cover memorandum stating that the JASON report was "one perspective" among several and that it was not based on a comprehensive data set.

See "S & T for National Security," JASON Summer Study, completed May 2009, released May 2010:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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