Secrecy and Leaks

Layers of Secrets

Secrecy is the governmental or corporate practice of keeping information from the public for various purposes. The term often refers to government secrecy, although corporate secrecy attracts more attention in the press. The key rationale for government secrecy is national security, whether internal or external. In American journalistic practice a government document or statement may be classified in any of three known levels, defined by how much damage each can cause to national security:

• “Top Secret”—unauthorized disclosure could cause exceptionally grave damage to national security;
• “Secret”—unauthorized disclosure could cause serious damage to national security;
• “Confidential”—unauthorized disclosure could cause damage to national security.

A good illustration of government secrecy in practice is the classifying of information affecting national defense and foreign relations. National security is no talismanic justification for blanket secrecy, however. Government secrecy should be balanced with the public's right to know. As the U.S. Supreme Court concluded in New York Times Co. v. United States (1971), more widely known as the “Pentagon Papers” case, the First Amendment bars authorities from invoking national security as a justification for secrecy on a carte blanche basis against news media.

Over the years, however, the U.S. government has invoked the “state secrets” privilege, which protects classified government information from disclosure in judicial proceedings. In recognizing the state secrets privilege, the Supreme Court held in United States v. Reynolds (1953) that if disclosure of the classified documents is proved to pose “a reasonable danger” to national security, the government can withhold the documents from the judges.

The state secrets privilege was rarely used. Between 1953 and 2001, the government claimed the privilege only 55 times. But the Bush administration's assertion of the privilege has multiplied dramatically. From 2001 to 2007, the administration of George W. Bush (2001–09) had resorted to the privilege on 39 occasions, and none of them had been rejected. Indeed, according to privacy lawyers Gayle Sproul and Jeanette Melendez Bead, the state secrets privilege “has proven the most fertile ground for the test of the principle of dismissal for refusal to produce evidence in defamation actions.”

The raging controversy over the government's alleged abuse of the state secrets privilege in recent years has led Congress to develop a legislation check on the privilege. The State Secret Protection Act, introduced by Senator Edward Kennedy and Senator Arlen Specter in early 2008, would require judges, prior to ruling on a state secrets claim, to first examine the documents or evidence for which the privilege is invoked rather than deferentially accepting government assertions that the evidence [Page 1269]is too sensitive to be publicly disclosed, even to a judge in chambers. The bill would prevent the government from abusing the privilege as it did in Reynolds and its progeny. Tellingly, the Reynolds case pivoted around the government's (mis)classi-fied investigative report on a B-29 bomber crash in 1948. But declassification in the mid-1990s revealed that the government's “state secret” document had nothing to do with national security but everything to do with the government's cover-up of its carelessness in causing the fatal midair accident.

...