The Increasing Concerns Over Government Secrecy

Contemporary Justice Review, 2015

After Snowden and Manning, the CIA torture report and debates about the accountability of the intelligence services, Secrets and Leaks is a timely contribution. Yet, for Sagar, contemporary anxieties about the abuse of secrecy and leaking are nothing new. Rather, at least for US citizens, these problems are rooted in 'silences' left by the framers of the American constitution. The framers intended that the president should have the right to employ secrecy in the public interest, but they 'did not fully explain how citizens and lawmakers could know whether the president is in fact exercising this power responsibly' (p. 49). Sagar's task is to fill this silence. Sagar begins by asking whether better judicial or legislative oversight could be the answer. In the former, Sagar argues that the judiciary cannot and should not decide when executive secrecy should be broken. Courts may lack the insider knowledge to judge claims made by the executive about the likely harm from disclosure (p. 66). Furthermore, Sagar argues that judges should not be asked to decide on an essentially political question about how the community should weigh the costs and benefits of secrecy (p. 70). Instead, the judiciary's role should be limited to making secrecy 'shallow', by ensuring that official justifications for secrecy are sufficiently reasonable and detailed to deter over-zealous concealment (p. 73). This dismissal of judicial oversight (which, comparatively, contrasts with measures found in the United Kingdom) is crucial to the remainder of Sagar's argument. As for congressional oversight, Sagar is again sceptical. There are risks when the president alone weighs the costs and benefits of secrecy, but Sagar explains that placing the responsibility on a legislative body would reproduce these and other risks. Any congressional debate on individual secrets would have to take place in camera. In such circumstances, amidst partisan divides, opportunities for unauthorised leaks would be rifea danger realised by leaks from the 9/11 committee in 2002 (p. 94). The only solution, Sagar claims, would be to limit this closed-door committee to a select few. Yet now this committee would be unable to convincingly explain its reasoning to the public, repeating the conditions of mistrust and secrecy that surround existing oversight practices.

2015

In the last few years we have had a number of infamous national security leaks and prosecutions. Many have argued that these people have done a great service for our nation by revealing the wrongdoings of the defense agencies. However, the law is quite clearthose national security employees who leak classified information are subject to lengthy prison sentences or in some cases, even execution as a traitor. In response to the draconian national security laws, this article proposes a new policy which fosters the free flow of information. First, the article outlines the recent history of national security leaks and the government response to the perpetrators. Next, the article outlines the information policy of the defense industry including the document classification system, the Freedom of Information Act (FOIA), whistleblower laws and the Espionage Act. Finally, the article outlines a new policy that will advance government transparency by promoting whistleblowing that serves the p...

Social Research: An International Quarterly

I) Reflections on Secret-keeping and Identity In the "national security" area of the government-the White House, the departments of state and defense, the armed services and the "intelligence community," along with their contractors-there is less whistleblowing than in other departments of the executive branch or in private corporations. This despite the frequency of misguided practices and policies within these particular agencies that are both more well-concealed and more catastrophic than elsewhere, and thus even more needful of unauthorized exposure. The mystique of secrecy in the universe of national security, even beyond the formal apparatus of classification and clearances, is a compelling deterrent to whistleblowing and thus to effective resistance to gravely wrongful or dangerous policies. In this realm, telling secrets appears unpatriotic, even traitorous. That reflects the general presumption-even though it is very commonly false-that the secrecy is aimed not at domestic, bureaucratic or political rivals or the American public but at foreign, powerful enemies, and that breaching it exposes the country, its people and its troops to danger. Even those insiders who have come to understand that the presumption is frequently false and that particular facts are being wrongly and dangerously kept secret not so much from foreigners but from Congress, courts or the public are strongly inhibited from speaking out by an internalized commitment to keep official secrets from outsiders, which they have promised to do as a condition of employment or access. To be sure, there are strong, usually more than adequate careerist incentives not to break those promises. Being found to do so exposes officials to loss of access to meetings and information, loss of clearance, demotion or loss of promotion, loss of job or career, loss of retirement benefits, harm to marriage or to children's prospects that comes with loss of income, even danger of prosecution and prison. The last risk is much less likely than they are led to believe-at least, that was true prior to the present Obama administration-but the other job-related penalties are not, and they prove more than sufficient to keep most secret-keepers from breaking the rules in ways that would expose them to such losses, even when the welfare of many others is at stake. However, as a former insider I can attest to psychological dimensions of this behavior that seem rarely to have been discussed. They seem worthy of some extended reflection here, given my own motive to understand this behavior in order in some respects to change it. In my experience, the psychological stakes for officials in keeping their commitment to keep secrets-even what appear to be "guilty" secrets that not only preclude democratic accountability but endanger the welfare of many people-go beyond careerist calculations of keeping a job or possible punishments for disobedience, influential and even sufficient as those considerations generally are. The promise to keep "secrets of state," once demanded and given, becomes virtually part of one's core identity. In the national security apparatus, one's pride and self-respect is founded in particular in the fact that one has been trusted to keep secrets in general and trusted with these particular secrets. Second, they reflect one's confidence that one is "worthy" of this trust. Indeed, the trust (with respect to truly sensitive secrets, requiring utmost reliance on the discretion of the recipient) will have been "earned," before being conferred, by a long history of secret-keeping, building habits that are hard to break, that form part of one's character. These habits will allow a good deal of leeway and discretion in disregarding formal rules of the classification system when it comes to sharing information with others who have not been explicitly authorized to receive it-even reporters who have not been formally cleared, in flat violation of the rules-when this is in the interest of furthering the policies or interests of one's agency boss or the president.

Ethical Theory and Moral Practice, 2019

Political philosophical work on whistleblowing has thus far neglected the role of journalists. A curious oversight, given that the whistleblower's objective-informing the public about government wrongdoing-can typically not be realized without the media. The present article, therefore, aims to start remedying this neglect by exploring some of the most pressing questions. Accordingly, the paper will be structured as follows: Section 1 will explain why the authorities have treated whistleblowers far more harshly than the journalists who publish their disclosures. Still, the freedom of expression of media workers is (and ought to be) less extensive than that of ordinary individuals. Section 2 will explain why by arguing that the freedom of expression of the press, contrary to that of individuals, is not an unconditional good; instead, it is good merely instrumentally. Section 3 considers and refutes an argument for a more expansive press freedom based on the marketplace of ideas model and, in doing so, also discusses some important differences between the ethics of the traditional and the new online media. Often journalists, like whistleblowers, will justify their publications based on leaked classified documents by appealing to the public interest. Yet, this is problematic for two reasons: (1) the public interest is never clarified; and (2) this argument overlooks the fact that the public interest can also be a reason for not publishing about leaked classified documents, even if the leaks are verified (in the interest of national security, for example). Accordingly, Section 5 sets out to clarify the public interest. Section 4 then discusses two case studies-one concerning unverified leaks, and one concerning verified leaks-in order to demonstrate how we might employ the concept of the public interest in order to determine the permissibility of publishing about leaked classified information in practice.

2014

: Samuel Huntington wrote about the conflict between American ideals and American institutions in 1982, identifying four episodes in which the U.S. attempted to restore the values of liberty, equality, liberal democracy, and popular sovereignty to the institutions of government. The U.S. may well be experiencing a similar episode after the experience of September 11, 2001 and subsequent security reforms. Secrecy, necessary for the function of the military and capable governance, poses a challenge to each of the foundational American ideals. Reconciling the requirements of secrecy with the people's demand for transparency and publicity poses several challenges to the U.S. government. Changes in information technology, culture, and social dynamics all exacerbate the existing tensions between the executive, legislature, media, and the people. The U.S. military exists between these actors and must balance the requirements of defending the nation while adhering to its values. Current...

Harvard International Review, 2004

A few years ago, I sat at a table in a Washington think-tank with a group of mid-level Japanese officials. They were spending several weeks in the United States on a study tour, and I was meeting with them to give a talk on governance and access to information. Japan had recently passed, but not yet implemented, a sweeping freedom of information law, and the bureaucrats were puzzled about how they were to implement it. Or even whether they should implement it. After all, as one earnest young woman asked, if the government starts giving people information, they might want to do something with that information. "And what if they use it the wrong way?" That question, and the fear that lies behind it, has come to cast a dark shroud over what had become a powerful movement in the world: the trend toward greater transparency. Inspired in part by long-standing US arguments about the value of openness and transparency as the bedrock of democracy, the driver of prosperity, and even a guarantor of security, citizens around the world are demanding that their governments open their files. And governments are responding. From Mexico City to Johannesburg to London to Tokyo to Beijing, governments have adopted new laws and regulations on access to information.

Whistleblowers promote the values of responsible government and the rule of law by drawing attention to criminal or other forms of wrongdoing in publicly accountable organisations. This article explores the relationship between whistleblowing, national security and the implied freedom of political communication under the Australian Constitution. Legislation such as the Crimes Act 1914 (Cth) ('Crimes Act'), the Australian Security Intelligence Organisation Act 1979 (Cth) ('ASIO Act') and the Australian Border Force Act 2015 (Cth) ('Border Force Act') makes it an offence to reveal certain types of information obtained as a Commonwealth officer. The Public Interest Disclosure Act 2013 (Cth) ('PIDA') offers limited protection to whistleblowers in the Commonwealth public sector, but this protection does not extend to information relating to intelligence operations. We argue that blanket criminalisation of unauthorised disclosure by Commonwealth officers or contractors under s 70 of the Crimes Act, along with similar prohibitions in s 35P of the ASIO Act and s 42 of the Border Force Act, offend the implied freedom of political communication by failing to strike an adequate balance between national security and organisational secrecy, on the one hand, and public debate and discussion, on the other. The courts should read down these laws to protect disclosures that hold significant public interest for discussion and debate over government policy or the performance of government officials.

ZPol, 2013

Through the massive leaking of classified government documents, WikiLeaks has provoked a debate on the link between transparency and political accountability. The central issues of contention in this debate are the degree to which secrecy is compatible with democratic processes and whether WikiLeaks meets its own standard of transparency. This paper examines a narrower, though related, set of questions. At the conceptual level it explores the link between transparency and accountability. Does an increase in the former necessarily imply an increase in the latter? At the empirical level, it examines whether WikiLeaks contributes to the public's ability to hold governments and organizations accountable by increasing transparency and providing necessary information. That is, do leaks shift the balance of power between publics and governments? If not, can we nevertheless regard internet-based digital leaking a symbolic act of political protest in support of a democratic ideal? The analysis is structured around five parameters, each of which relates to the ability of WikiLeaks to promote accountability via leaking. We find that although WikiLeaks increases the amount of information available to publics, it does not provide for transparency. On the one hand, the mere fact of leaking does not necessarily identify responsible government officials or force them to justify their policies. On the other, the information that is contained in the leaked documents has to be interpreted before it can be acted upon by interested citizens. The analysis leads to the conclusion that the sort of transparency promoted by WikiLeaks is neither a necessary nor sufficient condition for political accountability. * The authors conducted this research in the context of the University of St. Gallen´s profile area "Global Democratic Governance". 472 Context b) 475 Reach c) 477 Reaction and Relevance d) 479 Discourse e) 482 Transparency and Accountability: Some Lessons Learned and Some Requirements 6. 484