The U.S. Government’s Secrecy Problem Just Got Worse

Crossposted from Al Jazeera America.

It is no secret that the United States government has too many secrets. Long before Edward Snowden’s revelations about mass surveillance by the National Security Agency, experts and government insiders were raising alarms about “overclassification.” The Public Interest Declassification Board — an independent advisory committee created by Congress — reported in November 2012 that “present practices for classification and declassification of national security information are outmoded, unsustainable and keep too much information from the public.” Two weeks ago, the Department of Justice’s Inspector General issued a review of the Department’s classification practices concluding that “DOJ is susceptible to misclassification.”

At least some of the secrecy tidal wave can be attributed to an explosion in the amount of information — of all kinds — that the government generates. Since the beginning of the modern classification system in 1940, officials have classified documents unnecessarily, whether out of rote or to hide embarrassing information. In the era of typewriters and carbon copies, however, the amount of secret paperwork generated was comprehensible in scale. Today, any individual item of classified information may generate hundreds or even thousands of classified emails or intranet posts. When combined with the dramatic growth of the U.S. national security establishment, the data revolution has turned overclassification into a multi-petabyte problem. In fiscal year 2012 alone, there were more than 95 million decisions to classify information.

But the increase in secrecy is not simply quantitative; it is qualitative, too. The government has begun to advance bold new justifications for classifying information that threaten to erode the principled limits that have existed — in theory, if not always in practice — for decades. The cost of these efforts, if they remain unchecked, may be the American public’s ability to hold its government accountable.

On Sept. 12, a federal judge endorsed one of these justifications when she ruled that the government need not release photographs and videos of Mohammed al-Qahtani, the so-called “20th hijacker.” Al-Qahtani, a Saudi citizen who allegedly tried but failed to enter the United States to participate in the Sept. 11 attacks, has been imprisoned at Guantánamo Bay since 2002. In the early phase of his confinement, interrogators shackled him in stress positions, stripped him naked, led him on a dog leash, doused him in cold water and interrogated him for 20 hours on end. The Convening Authority for Military Commissions held that his treatment “met the legal definition of torture.” The Center for Constitutional Rights (CCR), a legal advocacy nonprofit dedicated to protecting human rights, submitted Freedom of Information Act (FOIA) requests for photos and videos of al-Qahtani taken by the government during his first three years at Guantánamo.

The government acknowledged that it possessed mug shots, videos depicting forcible extractions of al-Qahtani from his cell and videos documenting various euphemistically termed “intelligence debriefings of al-Qahtani.” It argued that all of these images were properly classified and withheld from the public — but not because they would reveal sensitive intelligence methods, the traditional justification for classifying such information. The government did not stake its case on this time-tested argument, perhaps because the details of al-Qahtani’s interrogations have been officially disclosed through agency reports and congressional hearings. Instead, the government argued that the images could be shielded from disclosure because the Taliban and associated forces previously have used photos of U.S. forces “interacting with detainees” to garner support for attacks against U.S. forces. Even more broadly, the government asserted that disclosure could aid in the “recruitment and financing of extremists and insurgent groups.”

The government’s argument echoed a similar claim it made in a lawsuit earlier this year over a FOIA request for post-mortem photographs of Osama bin Laden. A CIA official attested that these images could “aid the production of anti-American propaganda,” noting that images of abuse at Abu Ghraib had been “very effective” in helping Al Qaeda to recruit supporters and raise funds. The appeals court did not address this argument, however, resting its decision on the narrower ground that these particular images were likely to incite immediate violence.

The judge in al-Qahtani’s case showed no such restraint. She held that the photos and videos were properly classified because “it (is) both logical and plausible that extremists would utilize images of al-Qahtani … to incite anti-American sentiment, to raise funds, and/or to recruit other loyalists.” When CCR pointed out that this result was speculative, the judge responded that “it is bad law and bad policy to second-guess the predictive judgments made by the government’s intelligence agencies.” In short, the government may classify information, not because it reveals tactical or operational secrets, but because the conduct it reveals could in theory anger existing enemies or create new ones.

This approach is alarming in part because it has no limiting principle. The reasons why people choose to align themselves against the United States — or any other country — are nearly as numerous and varied as the people themselves. Our support for Israel is considered a basis for enmity by some. May the government classify the aid we provide to other nations? May it classify our trade policies on the basis that they may breed resentment among the populations of some countries, thus laying the groundwork for future hostile relations? May it classify our history of involvement in armed conflicts across the globe because that history may function as “anti-American propaganda” in some quarters?

Perhaps even more disturbing, this justification for secrecy will be strongest when the U.S. government’s conduct most clearly violates accepted international norms. Evidence of human rights abuses against foreign nationals, for instance, is particularly likely to spark hostility abroad. Indeed, the judge in the al-Qahtani FOIA case noted that “the written record of (al-Qahtani’s) torture may make it all the more likely that enemy forces would use al-Qahtani’s image against the United States” — citing this fact as a reason to uphold classification.

Using the impropriety of the government’s actions as a justification for secrecy is the very antithesis of accountability. To prevent this very outcome, the executive order that governs classification forbids classifying a document to “conceal violations of law” or to “prevent embarrassment to a person, organization, or agency.” However, a federal judge in 2008 interpreted this provision to allow classification of information revealing misconduct if there is a valid security reason for the non-disclosure. Together, this ruling and the judge’s opinion in the al-Qahtani FOIA case eviscerate the executive order’s prohibition: The government can always argue that it classified evidence of wrongdoing because it could be used as “anti-American propaganda” by our adversaries.

Human rights advocates cannot rely on al-Qahtani to tell us what the photos and videos would reveal. The government asserts that al-Qahtani’s own knowledge of what occurred at Guantánamo — knowledge he gained, not through privileged access to government documents, but through his personal experience — is a state secret. The words that Guantánamo detainees speak, once transcribed by their attorneys, are “presumptively classified,” and the government determines which of those words, if any, may be released. Legally, the government may only classify information that is “owned by, produced by or for, or is under the control of the United States Government.” Because the detainees are under the government’s control, so, apparently, are the contents of their memory.

Americans should be very nervous about a legal doctrine that endorses classification of information about our government’s conduct if that information could spur anti-U.S. sentiment. We should be equally concerned about a doctrine that considers information to be in the government’s exclusive control if the people who possess that information are in the government’s custody. These are signs that the overclassification problem goes beyond a mere numerical increase in documents that are stamped “secret.” They indicate that government secrecy has slipped its traditional moorings and is venturing forth into dangerous waters, where accountability and the rule of law cannot readily follow.