Could Secrecy Caps Reduce Over-Classification?
by Nick Schwellenbach, 8/5/2013
Government officials from both parties have decried the excessive secrecy rampant in the executive branch for decades. For instance, in 2005 then-Defense Secretary Donald Rumsfeld wrote an op-ed in the Wall Street Journal where he stated “I have long believed that too much material is classified across the federal government as a general rule.”
Although public debates surrounding government secrecy are now very common—due in large part to national security disclosures and the government’s prosecution of whistleblowers—there has been some progress toward reining in secrecy under the Obama administration, as we noted in our Sunshine Week report on the first four years of the administration. There has been a substantial 42 percent drop in the number of new original classification decisions from fiscal year (FY) 2011 to 2012, according to a report by the federal Information Security Oversight Office (ISOO). For the first time since 1997, ISOO has reported a sharp drop in expenditures on secrecy. For FY 2012, ISOO estimates about $9.8 billion was spent by the government to protect secrets down from $11.4 billion in FY 2011 (when contractors, who calculate costs differently, are included the drop was from $12.6 billion to $11 billion).
“[T]he secrecy system itself is showing surprising new signs of restraint and even contraction,” wrote Steven Aftergood, a secrecy expert at the Federation of American Scientists. But he says over-classification is still a problem. “Many classification decisions are still excluded from critical scrutiny and instances of overclassification are not hard to find.”
While most acknowledge that there are legitimate secrets that should be protected, a common belief is that over-classification—like newspaper articles internally stamped “Secret” in government agencies—reduces respect for the secrecy system and makes it more likely that legitimate secrets will not be protected accordingly. Hence the oft-quoted line from Supreme Court Justice Potter Stewart in his concurring opinion in the 1971 New York Times v. United States case on the Pentagon Papers:
…when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion.
Why so much secrecy? There are few tangible incentives for transparency and many for secrecy. As the Brennan Center for Justice stated in a report on over-classification:
Numerous incentives push powerfully in the direction of classification, including the culture of secrecy that pervades some government agencies; the desire to conceal information that would reveal governmental misconduct or incompetence; the relative ease with which executive officials can implement policy when involvement by other officials, members of Congress, and the public is limited; the pressure to err on the side of classification rather than risk official sanctions or public condemnation for revealing sensitive information; and the simple press of business, which discourages giving thoughtful consideration to classification decisions. By contrast, there are essentially no incentives to refrain from or challenge improper classification. After all, classification is an easy exercise that can be accomplished with little effort or reflection; those who classify documents improperly are rarely if ever held accountable…
One expert has proposed an intriguing disincentive for agencies that want to classify too much information as secret: a budget, in other words, caps that would create restraints and force choices. According to The New York Times:
So how might the government deal with its classification problem? Herb Lin, a researcher at the National Academy of Sciences, believes that budgets must be used to change behavior.
“The incentives to classify information are many, and the incentives to refrain from classifying it are few,” he noted recently, adding that he was speaking just for himself. “Classifying information doesn’t incur any monetary cost for the classifier, and any economist will tell you that a free good will be overused.”
So he proposes that the Pentagon and intelligence agencies should be given a budget, and every time a “top secret” stamp is used, it should be charged against that budget.
Intelligence officials would argue that you can’t put a price on national security and that classification decisions shouldn’t be made with budgets in mind. But Mr. Lin’s idea drives home a point: that secrecy and security are often not synonymous.
The proposal raises numerous questions about how exactly it would be implemented—for instance, how do you determine how big the cap is and the value of each classification decision—but it seems worth exploring.
But there are also other prescriptions for reform that may be more plausible in the near term at least, such as increasing checks on classification actions and, as noted in our March report, increased oversight of the classification guides that set agency standards for what merits classification.