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This happens far too often…
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Is entrenched secrecy more powerful than the presidency?
America’s classification system dates to the Cold War. And today, the government’s sprawling bureaucracy perpetuates a culture of excessive secrecy that has flourished under both Democratic and Republican administrations.
The following are the systemic problems that will need fixing regardless of who wins the election:
Rampant overclassification
As Freedom of the Press Foundation (FPF) has noted, the government classifies too many secrets, and most shouldn’t be secret in the first place.
We don’t know how many documents are classified, and we also don’t know how expensive it is to keep them secret. Educated guesses say between 75% and 90% of information is classified when it shouldn’t be, and to the tune of $18 billion a year (although this is a conservative estimate, relying heavily on costs associated with the government’s 4 million active security clearances).
A large part of the problem is that classification decisions are subjective.
Different agencies make different classification decisions about the same documents. Sometimes the same agency can’t settle on a classification decision. The State Department once released four different versions of the same document, with different redactions each time. In another example, the same reviewer made different determinations about the same document mere days apart.
If we do not clearly and narrowly define what information may be classified, we will see an increasingly unmanageable number of unwarranted classification decisions.
Espionage Act reform
The ambiguous, outdated language of the Espionage Act (it was passed soon after World War I started) must be reformed to prevent the targeting of journalists and their sources.
Recent amendments proposed by Rep. Rashida Tlaib show how the law can be reformed to allow the prosecution of true espionage cases while protecting the rights of journalists and the public, which benefits from the national security-related reporting.
Secret law
The Department of Justice’s Office of Legal Counsel has authored an unknown number of secret legal opinions, which have profound implications across the executive branch — on everything from immigration to the limits of presidential authority.
Members of Congress and the public have asked for these opinions to be made public to no avail.
OLC should publish a list of all its classified legal opinions. If it refuses, Congress should reconsider how much it appropriates to the DOJ.
Secret Intelligence Community budget
Intelligence agencies do not have to disclose their individual or program-level budgets, so agencies like the CIA can hide how much they spend on constitutionally questionable programs.
The only public intelligence budget is an aggregate budget for the 17 agencies that comprise the intelligence community — and it totals nearly $100 billion. This, combined with the practice of secretly transferring appropriations from nonintelligence agencies to intelligence agencies, gives intelligence agencies a blank check without any serious oversight.
Every member of the intelligence community should be required to disclose its total budget. Claims that damage to national security would result are false; some of these figures were leaked by Edward Snowden in 2013, with no resulting damage.
FOIA improvements
FOIA backlogs grow every year, regardless of congressional scrutiny and presidential instructions to reduce the backlogs.
This is partly caused by an exponential growth in the number of electronic records that agencies still primarily review manually.
Agencies need to post more records proactively, and they must be allocated the funds to develop artificial intelligence and other technologies that will help release information. This needs to be done with public input to ensure that AI programs are not simply being trained how to most efficiently deny information.
More and better resources will help, as would ensuring that FOIA offices have a dedicated budget. But money alone won’t ensure transparency.
The DOJ should conduct a litigation review of all pending FOIA cases to ensure each reflects the department's most updated guidance. This would demonstrate to agencies that the DOJ won't blindly defend bad agency FOIA positions in court.
This, combined with disciplinary actions against officials who regularly and inappropriately withhold information, would help address knee-jerk secrecy in FOIA offices and beyond.
Fund the National Archives
The National Archives and Records Administration is responsible for running the National Declassification Center, overseeing the government’s compliance with classification rules, and ensuring agencies are appropriately preserving records.
It is also woefully underfunded. Its budget needs to be doubled, with a special focus on ensuring NARA has the resources to appropriately preserve a wide variety of electronic records.
Systematic declassification programs
Systemic reform takes time, but this shouldn’t prevent the government from immediately being more transparent about the most existential threats we face.
The government should build upon past success of targeted, declassification projects from across the government (including a recent effort that reviewed 47,000 pages on human rights violations in Argentina) and establish new declassification projects on climate change and nuclear weapons.
Read the other blogs in this series Excessive government secrecy and the presidential election Secrecy • ArticleThis multipart series assesses the secrecy risks of both presidential candidates, the systemic problems that will challenge either presidential administration, and the ways the public can most effectively fight for transparency.
Oct. 30, 2024 Lauren Harper The Trump secrecy assessment Secrecy • ArticleThe first Trump administration flouted transparency norms, preservation laws, and attempts at congressional oversight. How might a second Trump term continue this trend?
Oct. 30, 2024 Lauren Harper The Harris secrecy assessment Secrecy • ArticleHow secretive would a Harris administration be? Her time in the Senate provides insights on ways she could shape secrecy in the United States as president.
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The Harris secrecy assessment
It’s likely Democratic presidential candidate Kamala Harris would be less secretive than her Republican rival, former President Donald Trump, but that is an almost nonexistent threshold.
While a Harris administration would likely be more transparent than a second Trump administration, maintaining transparency norms like publishing the White House visitor logs and releasing her tax returns, there are areas for concern, especially for whistleblowers.
Harris has not spoken explicitly about secrecy issues as vice president, but her time on the Senate Intelligence Committee provides insights on ways she could shape secrecy in the United States:
Espionage Act
Harris’ current position on persecuting journalists under the Espionage Act is not known.
In 2019, Harris didn’t clearly state if she thought it was constitutional to charge Julian Assange under the act. Instead she hedged, saying that if elected president, “The Justice Department should make independent decisions about prosecutions based on facts and the law. I would restore an independent DOJ and would not dictate or direct prosecutions.”
The silence on necessary reforms is remarkable considering that as vice president-elect (but still a senator), Harris herself could have been punished under the Espionage Act if she revealed classified information to President Joe Biden after he won the 2020 presidential election but before he received his security clearance. (The lack of reform is doubly remarkable considering that Biden may have broken the law for mishandling information the government purported to be classified.)
Press freedoms
As vice president, Harris has made few, if any, specific remarks on press freedoms beyond a social media post on World Press Freedom Day in 2021. She sat for limited interviews during her presidential campaign and hasn’t voiced her stance on the PRESS Act, a federal shield law protecting journalists and their confidential sources.
In 2019, as senator, Harris joined Sens. Elizabeth Warren and Richard Blumenthal, and then-Sen. Tom Udall in demanding the Department of Homeland Security stop Customs and Border Protection’s unconstitutional surveillance of journalists along the Southwest U.S. border.
In 2018, she condemned the shooting at the Capital Gazette in Annapolis, Maryland, stating, “Journalists play such a critical role in our democracy and too often face risk at home and abroad.”
Whistleblower protections
Several Senate Intelligence Committee hearings point to her support for whistleblower protections, including their right to share complaints with Congress. She also pressed agencies like the CIA to ensure they do not retaliate against whistleblowers.
However, during a 2018 Senate hearing, she alluded to the “damage” caused by “insider threats” at the National Security Agency, a clear reference to Edward Snowden, an important whistleblower regardless of his status under the Whistleblower Protection Act.
This demonstrates a concerning potential preference for whistleblowers only if they work within the government’s system, even though Harris knows it is a system rife with abuse.
Executive orders
Neither Biden nor Trump authored a new executive order on classified national security information, leaving the executive order signed by President Barack Obama, EO 13526, intact.
It’s possible a Harris administration would revive efforts to author a new EO. If it does, the Harris administration should both consult rights organizations and look at a recent Senate bill on classification that includes good ideas on how to reduce overclassification.
Surveillance and Section 702
The Biden administration expanded government surveillance under Section 702 of the Foreign Intelligence Surveillance Act, a program that “incidentally” collects millions of Americans’ data, including that of journalists.
Harris was vocally in favor of surveillance reform and skeptical of the FBI’s authority to conduct warrantless searches under FISA when she served in the Senate. She also questioned what legal basis the intelligence community has for refusing to provide an estimate of the number of Americans who have been caught up in Section 702 surveillance. But she hasn’t commented on the campaign trail on intelligence agencies’ continuing failure to provide such an estimate.
Congressional oversight
Harris was stymied by agencies’ refusal to provide information to Congress under the Trump administration, going so far as to submit a Freedom of Information Act request to the Justice Department for information on Ukraine. She’s gone on the record stating executive privilege should not prevent “public scrutiny and oversight” of agency deliberations, noting Congress’ constitutional authority to access agency information.
Intelligence community secrecy and classification reform
One of Harris’ most memorable moments in the Senate came during Gina Haspel’s confirmation hearing to lead the CIA. Harris, who voted no on Haspel’s nomination, asked Haspel if she would recuse herself from declassification decisions about her own record, citing an obvious conflict of interest over her torture records. Harris suggested that the director of national intelligence would be the more appropriate declassification authority if a conflict of interest arose.
Harris did not attend a 2019 hearing on potential reforms to the declassification process, so her stance on specific reforms to the outdated classification system is not known.
Read the other blogs in this series Excessive government secrecy and the presidential election Secrecy • ArticleThis multipart series assesses the secrecy risks of both presidential candidates, the systemic problems that will challenge either presidential administration, and the ways the public can most effectively fight for transparency.
Oct. 30, 2024 Lauren Harper The Trump secrecy assessment Secrecy • ArticleThe first Trump administration flouted transparency norms, preservation laws, and attempts at congressional oversight. How might a second Trump term continue this trend?
Oct. 30, 2024 Lauren Harper Is entrenched secrecy more powerful than the presidency? Secrecy • ArticleSecrecy isn’t a partisan issue, it’s a systemic one. What are the key government secrecy issues that must be addressed regardless of who wins the election?
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The Trump secrecy assessment
Former President Donald Trump’s first term flouted transparency norms, preservation laws, and attempts at congressional oversight.
Here are some important areas where a second Trump administration could continue this trend:
Press protections
Trump has said journalists should go to jail for protecting their sources, made vulgar suggestions about what would happen to them there, belittled journalists — female journalists in particular — and threatened to strip the networks he doesn’t like of their broadcasting licenses.
His administration also pursued eight Espionage Act cases, as many as President Obama but in half the time.
A second Trump administration could be more aggressive, overturning press protections, and further empowering counterintelligence agencies to persecute journalists. This makes it imperative that the Senate pass the PRESS Act and protect journalists’ freedoms and source confidentiality.
Executive orders
Trump did not author an executive order on classified national security information, and the current order outlining what can be classified and how classified information is handled, 13526, dates to the Obama administration.
But the legal battles surrounding Trump’s mishandling of classified information may encourage him to draft an EO that would grant him more expansive authority on classification issues during a second term.
While it’s unlikely a new EO would establish a president's ability to declassify documents just by “thinking about it,” as Trump claimed he did, one area where a new EO could try to carve out more presidential authority is nuclear weapons. Nuclear information is declassified differently than other government information, and the rules are mandated by the Atomic Energy Act. A new EO claiming more authority over nuclear information could face legal challenges, but it’s not outside the realm of possibility.
Presidential records
Whether ripping up records, not preserving calls with foreign leaders, using disappearing messaging apps, or refusing to transfer ownership of presidential records to the government at the end of his administration as required by law, Trump showed a consistent disregard for the Presidential Records Act.
None of the legal actions against Trump since he left office have attempted to enforce compliance with the PRA. A second Trump administration may exploit the ongoing lack of enforcement by more recklessly destroying presidential records.
Agency records
Federal agencies are required to preserve their records in accordance with the Federal Records Act and to provide public access to those records under the Freedom of Information Act.
During his first term, Trump undermined these complimentary laws by appointing agency heads who discouraged federal officials from creating records in the first place or from communicating with the public and Congress, who ordered agencies to stop posting press releases, and who explicitly sought ways to avoid compliance with FOIA.
There are no indications a second Trump term would be more compliant with either the FRA or FOIA.
Agency secrecy
In 2020, the Trump administration approved Customs and Border Protection’s request to be labeled a “security agency.” This designation makes it even more difficult for the public to access CBP’s records. If more agencies apply for this designation under a second Trump administration, there’s little reason to believe they would be denied.
At the same time, Trump could renew efforts to undermine the FBI and the intelligence community. Some of the accusations made by Trump against law enforcement and intelligence agencies may be baseless, but other complaints may touch on legitimate problems. The most effective way for agencies to defend themselves from baseless attacks would be to show their work and be more transparent.
Congressional requests and inspectors general
The Trump administration often failed to comply with congressional oversight requests, especially if those requests did not come from a committee chair. A second Trump administration could continue this trend, preventing lawmakers from accessing information they are constitutionally entitled to. If so, congressional committees may be forced to sue federal agencies for information, although individual members would face significant legal challenges when filing suit.
The first Trump administration also failed to staff key oversight and civil liberties boards and undermined the effectiveness of inspectors general across the government by either replacing them (IGs are nonpartisan and usually have open-ended appointments), firing them, or leaving those positions vacant. A second term may see a similar attack on agency oversight mechanisms.
Transparency norms
Trump didn’t follow transparency norms like publishing his tax returns, providing access to the White House visitor logs, or hosting regular press briefings during his first term, and there is no reason to think he would change during his second.
There is already too much room for excessive executive secrecy, and the Supreme Court’s ruling granting presidents broad immunity for their “official acts” all but ensures a second Trump administration would be more secretive than the first — with little, if any, fear of accountability.
Read the other blogs in this series Excessive government secrecy and the presidential election Secrecy • ArticleThis multipart series assesses the secrecy risks of both presidential candidates, the systemic problems that will challenge either presidential administration, and the ways the public can most effectively fight for transparency.
Oct. 30, 2024 Lauren Harper The Harris secrecy assessment Secrecy • ArticleHow secretive would a Harris administration be? Her time in the Senate provides insights on ways she could shape secrecy in the United States as president.
Oct. 30, 2024 Lauren Harper Is entrenched secrecy more powerful than the presidency? Secrecy • ArticleSecrecy isn’t a partisan issue, it’s a systemic one. What are the key government secrecy issues that must be addressed regardless of who wins the election?
Oct. 30, 2024 Lauren HarperExcessive government secrecy and the presidential election
How secretive would a second Trump or a Harris administration be? And how much could either presidential candidate rein in the government’s sprawling secrecy system if they wanted to?
The answers to these important questions will impact every American, because excessive secrecy undercuts the promise of a free press, effective oversight, and the public’s ability to self govern.
I’ve analyzed past stances of Donald Trump and Kamala Harris on key transparency issues, including access to presidential records, agency compliance with congressional oversight requests, and press freedom issues, to get a sense of what may come.
I’ve also surveyed the ways successive presidents have failed to rein in needless secrecy. From agencies routinely ignoring presidential instructions to be more transparent, to convincing multiple administrations that their records (and their budgets) are too sensitive to see the light of day, I’ve highlighted the key secrecy issues that will need to be addressed regardless of who wins the election.
Read the series below The Trump secrecy assessment Secrecy • ArticleThe first Trump administration flouted transparency norms, preservation laws, and attempts at congressional oversight. How might a second Trump term continue this trend?
Oct. 30, 2024 Lauren Harper The Harris secrecy assessment Secrecy • ArticleHow secretive would a Harris administration be? Her time in the Senate provides insights on ways she could shape secrecy in the United States as president.
Oct. 30, 2024 Lauren Harper Is entrenched secrecy more powerful than the presidency? Secrecy • ArticleSecrecy isn’t a partisan issue, it’s a systemic one. What are the key government secrecy issues that must be addressed regardless of who wins the election?
Oct. 30, 2024 Lauren Harper
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