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National Security versus the People’s right to know |
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< | -- By ClaireCaton - 12 Mar 2021 |
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> | -- By ClaireCaton - 12 Mar 2021 - 2nd draft 4 May 2021 |
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< | National security can be defined as the safekeeping of a nation as a whole, which is regarded as a duty of government. It has also been described as the ability of a state to cater for the protection and defense of its citizenry.1 In order to protect the full exercise of citizens’ rights and legitimate national security interests, it may be necessary for a state in some circumstances to keep certain information secret. However, the words “national security” are sometimes conveniently invoked as a means of shutting down the flow of information and debate. The Australia–East Timor spying scandal and the Pentagon Papers can both be an instance of when “national security” have been conveniently brought forth by the government. |
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> | National security can be defined as the safekeeping of a nation as a whole, which is regarded as a duty of government. It has also been described as the ability of a state to cater for the protection and defense of its citizenry. In order to protect the full exercise of citizens’ rights and legitimate national security interests, it may be necessary for a state in some circumstances to keep certain information secret. However, the words “national security” are sometimes conveniently invoked as a means of shutting down the flow of information and debate. |
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< | The concept of "the people’s right to know" has been generally approved as a basic concept in democratic societies. If the people govern through their representatives, then it naturally follows that they must know what their government is doing in order to be well-informed rulers. It is justifiable that the citizens have a right to know government business. |
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> | The National Security Act was a law enacting major restructuring of the United States government's military and intelligence agencies. Passed in 1947 in response to perceived threats from the Soviet Union after World War II, it established the Department of Defense and the Central Intelligence Agency (CIA) and the National Security Council. |
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< | National security as a duty of the government and the public’s right to know are often viewed as pulling in opposite directions. There seems to be an inevitable tension between a government’s desire to keep information secret on national security grounds and the public’s right to access information held by public authorities.
Where do we draw the line between national security and the public’s right to know? What is the scope of information about the government that should be kept secret from the people, for how long and why?
Section I. Information is the currency of democracy
A. Guaranteeing freedom of the press is guaranteeing the public’s right to know
In 1970, political activist Ralph Nader claimed a “well-informed citizenry” to be the “lifeblood of democracy” and wrote that “information is the currency of power”. Later, the proposition was condensed into “information is the currency of democracy” and often used by transparency advocates to lobby for openness in government.2 |
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> | The concept of "the people’s right to know" has been generally approved as a basic concept in democratic societies. If the people govern through their representatives, then it naturally follows that they must know what their government is doing in order to be well-informed rulers. |
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< | The citizens are those who are governing. They would be the ones entitled to decide for example when their nation faces questions on whether to persist in military activity, whether to amend their energy policies, or how to deal with disaster relief. A common ground of knowledge for the citizens of a country and capacity to reason are important and this can be achieved through a country’s education system. But correct reasoning needs truthful information. Restricted access to relevant information would impede their deliberation, thus jeopardizing the democratic system.
B. The citizens’ right to know how their government is protecting them |
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> | National security as a duty of the government and the public’s right to know are often viewed as pulling in opposite directions. There seems to be an inevitable tension between a government’s desire to keep information secret on national security grounds and the public’s right to access information held by public authorities. |
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< | It is interesting to note and disquieting to think that the government apparatus has control over the matter of the "people’s right to know" or is the only one largely responsible for restricting this right. The notion that a very few people would decide what is good for us to know and what is good for us not to know appears utterly non democratic. It seems reasonable to say that responsible government secrecy requires a democratic process of oversight. But there is an inherent paradox here. In order to decide if an information is better kept secret, we should have an idea of what the information is about. But then it wouldn’t be secret information anymore. Even if the citizens have a role to play in deciding what kind of information can be kept secret, they will never know the content of what they don’t have access to. |
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< | Section II. Freedom of speech, freedom of the press and freedom of the people |
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> | I. Keeping citizens in the know about their government |
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< | A. Guaranteeing freedom of the press is guaranteeing the public’s right to know |
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> | A. The Freedom of Information Act |
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< | National security is not only something that affects the well-being of the citizens. It also involves their safety, their security, and their freedoms. Freedom of speech, freedom of the press and the right to access information seem to be closely related. To guard against excessive government secrecy, Congress enacted the Freedom of Information Act (FOIA) in 1966. The Act is the first comprehensive attempt to promote public access to government documents. Nevertheless, amongst multiple conduits for information and all kinds of ways to educate themselves, it is through the press that most of the citizens get their information, and most Americans will never file a Freedom of Information Act request. The right to access information regarding the government, the administration, and their actions, is therefore essentially useful for journalists who want to inform the public. |
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> | The citizens are those who are governing. They would be the ones entitled to decide for example when their nation faces questions on whether to persist in military activity, whether to amend their energy policies, or how to deal with disaster relief. A common ground of knowledge for the citizens of a country and capacity to reason are important. But correct reasoning needs truthful information. Restricted access to relevant information would impede their deliberation, thus jeopardizing the democratic system. |
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< | B. The citizens’ right to know how their government is protecting them |
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> | To guard against excessive government secrecy, Congress enacted the Freedom of Information Act (FOIA) in 1966. The FOIA has provided the public the right to request access to records from any federal agency. It is often described as the law that keeps citizens in the know about their government. As the Supreme Court has held, “disclosure, not secrecy, is the dominant objective” of the FOIA. |
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< | But this right to access information related to government actions it is just as much important for the ordinary individual in the private sphere. The ordinary citizen, by claiming access to information held by a public administration, would be either exercising its right as a citizen to participate in public affairs or overseeing the political institutions with the wish to improve the economic and social development of his country. On a more personal and individual scale, the citizen’s wish to protect his property, his health, his privacy, would be linked to his right to know how he is being governed. The right to access administrative or government information should therefore not be a right restrictively granted to the media. The transparency of the state and of all public persons is crucial for the needs of democracy and good governance. It is all about the citizens’ right to know how their government is protecting them. |
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< | Conclusion |
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> | B. The nature of the FOIA exceptions |
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< | A government that is accessible to the public is necessary to a functioning democracy. Nonetheless, governments’ honesty, integrity and transparency shouldn’t mean full disclosure under all circumstances. To protect legitimate national security interests, including the people’s freedom and rights, it is conceivable that certain information can or should be confidential. There really are military secrets that should not fall into the hands of dangerous people. Striking the right balance seems to be the most challenging. |
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> | Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions which protect interests such as personal privacy, national security, and law enforcement. In creating these exemptions, Congress sought to create a “workable balance” between the public’s right to know and the governments need to protect certain information.
Included in those exemptions are: information that is classified to protect national security (exemption 1), information related solely to the internal personnel rules and practices of an agency (exemption 2), trade secrets or commercial or financial information that is confidential or privileged (exemption 4).
An agency can withhold information under an exemption only if the agency “reasonably foresees that disclosure would harm an interest protected by that exemption” or if disclosure is prohibited by law. |
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> | II. The classification system and the oversight system |
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< | I think the best way to improve the draft is to get it in contact with some more of the legality you are discussing. Neither the classification process nor the Freedom of Information Act are mentioned here, just to take the two most prominent examples. Nothing is said about the National Security Act of 1947 itself, or of the history of American government's views of government secrecy. The oversight system is not discussed, which is the primary constitutional mechanism now mediating the relationship between secrecy and democracy. |
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> | A. The issue of overclassifying |
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< | Making room to discuss these aspects of the landscape means compressing substantially the basic discussion now taking up almost a third of the draft. |
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> | Classification is the process of identifying that information which requires protection in the interests of preserving national security. From 1946 to the present, the American classification system has been founded on both legislation and executive orders. The United States government classifies information according to the degree which the unauthorized disclosure would damage national security. Like many other countries, the US has three classifications levels. From the highest to the lowest level these are: Top Secret, Secret, Confidential. This classification system was created in 1951, in an executive order issued by Harry Truman and has been criticized since then for overproducing government secrecy. The order gave individual government employees the institutional responsibility for classifying information. The employees were instructed to consider only the risks that disclosure posed to national security without any requirement to consider the public’s right to know the information. When in doubt, a government employee was thus incentivized to overclassify rather than underclassify. The bureaucratic momentum created by this institutional structure has led to the steady expansion of state secrecy. Moreover, there is no real system for reviewing decisions, so information that was stale weeks after it has been classified remains secret for years longer. |
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< | I also think it is worth at least considering a reformulation of the essay's expression of its central idea. Posed as it is now, essentially as "why are there secrets?" it demands at least some awareness of the complexity of matters beyond military dispositions in which government's responsibilities to citizens depend on secrecy. A consideration of the nature of the FOIA exceptions, on the one hand, and the overwhelming criticism of the classification system, since the 1950s, for overproducing government secrecy on the other gives a wealth of realistic judgments to pore over and to theorize about. |
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> | B. The oversight system mediating the relationship between secrecy and democracy |
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> | In 1975, Congress established the first intelligence oversight committees. The Watergate scandal had prompted a constitutional crisis, and in the course of investigating Watergate, Congress realized that it was necessary to review classified documents and activities in order to serve as a check on a president who was willing to use the nation’s intelligence agencies to investigate his political rivals and to manipulate popular opinion. |
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> | In its draft report, the 1975 House Intelligence Committee wrote that: “The key to exercising oversight is knowledge." If Congress cannot obtain classified information from the executive branch, the system of checks and balances would threaten to collapse. A failure by Congress to exercise oversight of classified matters risks ongoing harm to transparency, to the nation’s ability to control and oversee activities that necessarily have to remain out of sight, and to public confidence in the national-security apparatus. |
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< | 1. https://www.un.org/en/chronicle/article/national-security-versus-global-security
2. https://theconversation.com/the-right-to-know-vs-the-need-for-secrecy-the-us-experience-40948 |
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> | Conclusion |
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Why couldn't these be links in the body of the text? When writing for the Web, let's make things as easy for readers as we can.
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> | The transparency of the state and of all public persons is crucial for the needs of democracy and good governance. It is all about the citizens’ right to know how their government is protecting them. As Sam Lebovic suggested in an article titled The Surprisingly Short History of American Secrecy, “Rather than debating secrecy in abstract terms, we should remember that secrecy is produced by a particular bureaucratic mechanism, and ask whether what is being called “secret” deserves that label.” |
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