SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 71
July 28, 2011

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

ACLU: CONGRESS MUST ACT TO CURB SECRECY

"Congress must take the lead in challenging the laws and practices that have allowed excessive secrecy to become the dominant feature of our national security culture," the American Civil Liberties Union urged in a new report on government secrecy.

"The excessive secrecy that hides how the government pursues its national security mission is undermining the core principles of democratic government and injuring our nation in ways no terrorist act ever could," wrote Mike German and Jay Stanley, the authors of the ACLU report. "It is time for Congress to make the secrecy problem an issue of the highest priority, and enact a sweeping overhaul of our national security establishment to re-impose democratic controls."

The report provides a fluid account of current secrecy policy, along with a critique from first principles as well as from recent experience. Highly readable and thoroughly footnoted, the 51 page report covers a spectrum of secrecy issues, from the state secrets privilege to secret law to the role of national security whistleblowers, and a lot more. It concludes with a menu of recommended reforms that Congress could and, the authors say, should undertake.

The title of the report sums it up: "Drastic Measures Required: Congress Needs to Overhaul U.S. Secrecy Law and Increase Oversight of the Secret Security Establishment" by Mike German and Jay Stanley, July 2011.

The report is fundamentally an act of good citizenship. It identifies a significant problem, proposes a set of potential solutions, and presents a series of arguments about why those solutions should be adopted. Even readers who do not identify as civil libertarians or do not share the premises of the report are likely to learn something from it.

One may also end up disagreeing with its conclusions or recommendations. For example, in arguing for a greater congressional role in reforming government secrecy policy, the authors write that "We cannot expect the [executive branch] officials and agencies that benefit from lack of accountability to reform themselves." This is logical and makes intuitive sense -- but oddly enough, it is not consistently confirmed by experience.

To the contrary, some of the most significant and far-reaching secrecy reforms that have been achieved to date have been the result of internal executive branch actions. One thinks of the Department of Energy Openness Initiative of the mid-1990s, but also of the declassification of the aggregate intelligence budget, the declassification of the size of the nuclear weapons stockpile, and other "unilateral" executive branch actions. A proper theory of secrecy policy must account for such counterintuitive moves.

Conversely, an increased role for Congress in secrecy policy under current circumstances might lead to greater secrecy, not less. The authors sensibly call for a repeal of the so-called Kyl-Lott Amendment, which effectively prohibited the bulk declassification of historical records. But the reason a repeal is called for is that Congress enacted such a restrictive measure in the first place, just as it has enacted many other new restrictions on disclosure under the Freedom of Information Act, and similar barriers to public access. The peculiar congressional affinity for national security secrecy needs to be understood and factored in.

But this is a discussion worth having.

It is certainly true, as the ACLU authors write, that "The Constitution provides ample tools for Congress and the courts to check executive abuses of authority. Their failure to effectively use these tools leaves these branches of government with much of the blame for the misguided national security policies the executive pursues in secret."

BOOK: DEFENDING CONGRESS AND THE CONSTITUTION

Public cynicism about politics in general and about Congress in particular should not be allowed to obscure an appreciation of the vital role of Congress in our system of government, writes constitutional scholar Louis Fisher in his latest book, "Defending Congress and the Constitution."

"Without a strong Congress, we cannot speak of democracy," he says. "Safeguarding individual rights is often assumed to reside almost wholly with the judiciary, but history offers scant support for that position. Congress frequently takes the lead in defending personal rights and minorities that are not protected in the courts."

Fisher explores a range of historical and contemporary episodes involving congressional investigations and oversight, the use of budget authority, and the role of Congress in national security policy, including all kinds of lore he gathered over nearly four decades as a senior specialist at the Congressional Research Service.

Fisher recognizes the diminished esteem in which Congress is held by many members of the public and, not coincidentally, the decline in Congress' own institutional self-confidence. His intent is to challenge this erosion and to help refurbish the highest traditions of congressional leadership.

"Congress has a good story to tell in defending the Constitution and protecting individual freedoms. Lawmakers need to tell it."

In "Defending Congress and the Constitution" (University Press of Kansas, 2011), Fisher hopes to remind readers of that neglected story.

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

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