National Security versus the People’s right to know

-- By ClaireCaton - 12 Mar 2021 - 2nd draft 4 May 2021

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.

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.

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.

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.

I. Keeping citizens in the know about their government

A. The Freedom of Information Act

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.

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.

B. The nature of the FOIA exceptions

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.

II. The classification system and the oversight system

A. The issue of overclassifying

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.

B. The oversight system mediating the relationship between secrecy and democracy

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.

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.

Conclusion

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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