Secrecy undermines democracy and paves the way for rights violations and abuses.
- The Problem
- Recommendations for Action on Day One
- Recommendations for Short-term Action (First 100 Days)
- Recommendations for Long-term Action
- Recommendations for Legislative Action
Excessive government secrecy paves the way for waste, malfeasance, and abuse, in part by impeding efforts at public oversight and accountability. Unnecessary secrecy has enabled government agencies to violate human rights and civil liberties, and even cover up or destroy evidence of government wrongdoing, such as the Central Intelligence Agency’s illegal use of torture and destruction of tapes documenting it. Also troubling is the secrecy of formal written legal opinions issued by the Justice Department’s Office of Legal Counsel, which are responsible for a growing body of secret law that binds the executive branch. The Office of Legal Counsel’s opinions have been relied upon as the basis for many unaccountable and, in some cases, unlawful exercises of executive authority, including President Trump’s barring the testimony of former White House counsel Donald McGahn before the House Judiciary Committee; the Bush administration’s systematic policy of torture of detainees; and the Bush, Obama, and Trump administrations’ extrajudicial lethal force policies that have caused an untold number of deaths of civilians, including U.S. citizens by drone strike. Administrations have fought tooth and nail to withhold legal memoranda justifying these and other rights-violating policies from the public, often successfully, even though secret law has no place in a democracy.
Recommendations for Action on Day One
- Direct the Department of Justice’s Office of Legal Counsel to release all final legal opinions to the public.
Opinions of the Office of Legal Counsel set forth the authoritative legal interpretations of the executive branch, and the public and government should be on equal footing in their understanding of the law. On Day One, the president should direct the Office of Legal Counsel to publish all formal written legal opinions that are prepared pursuant to the procedures in Office of Legal Counsel’s Best Practices Memorandum on an ongoing basis – and establish a process for doing so. The Office of Legal Counsel should immediately publish an index of all existing Office of Legal Counsel opinions, to be updated every time a new opinion is issued. Beginning on Day One and on an ongoing basis, all Office of Legal Counsel opinions, including those that are classified, should be submitted to Congress immediately.
- Initiate a declassification review of classified Office of Legal Counsel opinions.
The administration should also initiate a declassification review of all classified Office of Legal Counsel opinions, and, where an opinion or portions of an opinion absolutely must be withheld, release all segregable portions and a detailed unclassified summary. This process should be completed within one year, and for future opinions, the full opinion (or an unclassified summary of a classified opinion) should be published within 30 days of the memoranda becoming final.
- Provide transparency around law enforcement and immigration authorities.
The administration should make law enforcement and immigration authorities accountable to the public they serve. Data collection around police use of force and deaths in custody must improve, law enforcement agencies should be penalized when they fail to comply with reporting requirements, and immigration authorities must respect rights and submit to oversight. For a list of measures to improve transparency and accountability around law enforcement, please see Appendix 1.8.
Recommendations for Short-term Action (First 100 Days)
- Direct federal agencies to release all final legal memoranda.
The president should require all federal agencies to release all final legal memoranda in full, or a detailed unclassified summary of any classified legal memoranda. Agencies should also commit to a prospective policy of releasing their final legal memoranda, or anything they consider to be “working law,” going forward.
- Restrict the use of “national security agency” designations.
The “national security agency” designation circumvents public records laws to exempt important information from disclosure, and is applied with little transparency or oversight. The Office of Personnel Management should review the agencies to which it has given the “national security agency” designation and, at minimum, rescind that authority specifically for Customs and Border Protection, Immigration and Customs Enforcement, and the Department of Homeland Security’s Office of Intelligence and Analysis. The president should also set a policy narrowing the circumstances in which such designations are granted.
- Provide transparency around the use of lethal force overseas.
In recent years, the White House, Pentagon, and intelligence agencies have reduced already severely limited transparency concerning the use of lethal force overseas. The president should reverse this trend and go much further than the Obama administration, releasing information that informs the public of past U.S. actions overseas. The minimum categories of information that should be declassified and released are listed in Appendix 1.9 at the end of this chapter.
- Publish presidential directives.
The administration should make publicly available unclassified presidential directives (currently designated National Security Presidential Memorandums), as well as redacted (to segregate only legitimately classified information) or summarized versions of classified directives. The administration should also promptly inform the public about, and make publicly available in unclassified or (where necessary) redacted/summarized form, any changes to previous presidential directives.
- Initiate a “bottom up” review of national security classification policy.
The administration should perform a fundamental review of the most basic premises of national security classification policy. It should consider questions such as: What is classification for? What are the unintended negative consequences of classification and how can they be mitigated? What types of information should be eligible for classification? What categories of information should be excluded from classification controls? How can the scope and duration of classification be kept to the minimum necessary? For the first time in decades, such questions should be systematically addressed through a process that is open to all stakeholders, including representatives of classifying agencies as well as public interest organizations and others, in order to help define a new national security classification policy that will replace the dysfunctional and overly-secretive legacy system that currently exists.
- Promote responsible exercise of classification authority.
The administration should make its national security information practices as rational, transparent, and minimally burdensome as possible. It should, at a minimum:
- Provide periodic reporting on the invocation of the state secrets privilege. Department of Justice policy already requires the administration to report to Congress periodically on the invocation of the state secrets privilege in litigation. But over the past decade only one such periodic report—in 2011—has ever been produced. Regular reporting on invocation of the state secrets privilege should immediately be resumed, annually at minimum.
- Institute a uniform prepublication review policy to clarify, narrow, and expedite the process. Millions of current and former government employees are obligated to submit their proposed publications to government censors, who review the proposed publications for classified information or other information the agencies deem sensitive. This process is overbroad, inconsistent across agencies, slow, and often capricious. Prepublication review procedures should be standardized and revised to minimize and expedite review.
- Recognize and reward appropriately limited classification activity in employee performance assessments, with an emphasis on the necessity and importance of government transparency. The proper and limited use of classification authority should be included as a factor in assessing the performance of government employees. In order to promote sound classification practices, including the avoidance of over-classifying information by default, the exercise of good judgment in classification should be rewarded in a tangible way, and its opposite should be discouraged.
- Provide for expedited declassification review on subjects of significant public interest.
The Mandatory Declassification Review process should include an expedited review option similar to that found in Freedom of Information Act.1 Additionally, in cases where there is a particularly compelling interest for disclosure, the administration should develop a process by which members of the public may nominate classified documents or topical areas for direct, expedited declassification review by the Interagency Security Classification Appeals Panel. The Interagency Security Classification Appeals Panel should conduct such direct, expedited review if it determines that the document or topical area, if declassified, would contribute significantly to an ongoing, important policy debate. In cases of topical reviews, the Interagency Security Classification Appeals Panel should evaluate and amend, as appropriate, the relevant agency classification guidance.
- Operationalize the Public Interest Declassification Board to help resolve classification disputes.
Many problems in classification policy naturally arise due to conflicting perspectives and assessments regarding the need for secrecy in a particular instance. Disagreements over the need for secrecy routinely occur between agencies, between Congress and the executive branch, and between government and the public. Currently, such disputes tend to linger for years and then to default to the status quo of secrecy. The Public Interest Declassification Board was established by statute to advise the president and other executive branch officials as well as Congress on classification and declassification matters. Its members are appointed by officials at the highest levels of government, including the president and the majority and minority leaders of the House and Senate. The Public Interest Declassification Board therefore has unique standing to provide an impartial forum for reconciling conflicts over classification and declassification. But it has never yet fulfilled its potential as an adjudicator of classification disputes, nor has it even been asked to do so. (Several Board positions are currently vacant and should be promptly filled.) The time has come to put this under-utilized entity to work in support of a public interest classification and declassification policy.
- Strengthen oversight of classification policy.
The National Declassification Center, housed at the National Archives and Records Administration, should be given the authority to declassify the archival records within its purview, i.e. without requiring prior review by the agencies that originated the records. Only by doing so will the National Declassification Center begin to reach its potential as one of the most important transparency initiatives of the last three decades.
- Invest in technology modernization.
The optimal implementation of changes to classification policy will require modernization of the existing classification and declassification infrastructure. In the majority of cases, human review of documents for declassification should no longer be necessary. The technology needed to update classification and declassification practices is well within reach. Some dedicated funding will be required to bring it to full maturity, and some skillful management will be needed to bring it into consistent and widespread use. But this is an investment that would quickly be recovered in increased productivity and efficiency. Annual reports from the Information Security Oversight Office to the president previously provided, among other data points, the total cost of security classification activities, including costs of classification management and declassification. The Information Security Oversight Office no longer reports on these critical figures because of challenges in collecting and analyzing agency statistical data. Any modernization of classification practices should be coupled with a requirement that agencies’ systems are able to accurately report the cost and size of their classification systems.
Recommendations for Long-term Action
- Reduce secrecy in the Oval Office.
The White House should resume the practice of releasing full, properly (for limited and legitimate reasons) redacted readouts of the president’s conversations with foreign leaders, and release those of his predecessor. The president should also order both the Central Intelligence Agency and the Office of the Director of National Intelligence to produce unclassified versions of the President’s Daily Brief for the public.
- Review and narrow executive branch privileges.
The attorney general should conduct a comprehensive review of the executive branch’s practices in asserting privileges, including executive privilege (such as the presidential communications privilege), the deliberative process privilege, and the state secrets privilege, and issue narrower standards. In particular, the administration should commit to only asserting the state secrets privilege as a last resort, and only when the head of an agency determines that the public interest in disclosure is outweighed by the risk to national security.
- Declassify the CIA torture program.
The president should declassify and release all records related to the Central Intelligence Agency’s torture, detention, and rendition programs, and current detainee treatment policies. The full Senate torture report should be among those records declassified and released to the public as a priority, and distributed throughout the executive branch.
- Establish an Open Source Intelligence Agency to produce intelligence products that are unclassified and publicly accessible.
The Central Intelligence Agency’s Foreign Broadcast Information Service once nurtured generations of scholars, journalists and public officials with its translations and analyses of foreign publications. But today, open source intelligence products generated by the US intelligence community are, with few exceptions, restricted from general distribution. This denial of access is particularly incongruous now, when the public itself faces direct threats from cybersecurity intrusions, foreign information operations, and a global pandemic. The administration should create a worthy successor to the Foreign Broadcast Information Service that will produce and provide public access to substantive open source intelligence products.
- Disclose top-line spending for each of the intelligence agencies.
The “Black Budget” is an informal term that refers to classified national security spending. It includes spending for intelligence, classified operations, and classified military procurement. Since 2007, a single aggregate budget figure for the National Intelligence Program, comprised of 17 intelligence agencies, has been published annually. But the total spending levels of each component agency remain classified. So does spending for classified operations and procurement. Black Budget spending is not merely secret. It also produces a distorted public perception of the open budget. That is because secret spending is often appropriated for one agency and then secretly transferred to another. So, for example, the budget for the Air Force has sometimes been used to conceal funding for the Central Intelligence Agency, so that the Air Force budget appears to the public much larger than it actually is. This kind of pass through arrangement undermines the integrity of the budgeting process and should be abandoned. In 2018, a bicameral, bipartisan group in Congress called for disclosure of top-line spending levels for each of the intelligence agencies. (The group included Sens. Ron Wyden (D-OR) and Rand Paul (R-KY) and Reps. Jim Sensenbrenner (R-WI) and Peter Welch (D-VT).) This is a logical step that can be adopted without legislation. It will also make it possible to eliminate the deceptive budget pass through practice once and for all, since there will be no need to conceal any agency’s funding in another agency’s budget. Additionally, every federal agency should annually disclose top-line appropriations for its Black Budget. In this way, the agency disclosure can be compared with the congressional appropriation figure (see legislative priorities).
Recommendations for Legislative Action
- Codify disclosure of top-line Black Budget of each intelligence agency.
The administration should work with Congress to require the president’s annual budget request to identify the amount requested by each intelligence agency. Congress should also identify top-line appropriations for each agency. Finally, Congress should prohibit agencies from secretively transferring Black Budget appropriations from one agency to another.
Appendix 1.8: Transparency and Accountability for Law Enforcement and Immigration Authorities Transparency and accountability measures for law enforcement and immigration authorities:
- Require the Department of Justice to establish a comprehensive federal database of use of force incidents involving police and civilians, and tie federal grant funding to compliance with reporting this data.
- Require the Justice Department to begin full implementation of the Deaths in Custody Reporting Act of 2013, which has been inexplicably delayed since the bill’s passage seven years ago, including by issuing funding penalties to states that do not comply with Deaths in Custody Reporting Act reporting requirements.
- Create a national, public police misconduct database that includes the names of police officers who have been the subject of complaints, license revocation, or termination as a result of misconduct.
- Increase transparency into the federal government’s use of novel and invasive surveillance technologies, such as StingRay devices, including which federal agencies are using them, how frequently, and for what types of investigations; how agencies are using the data collected; and how that data is being shared among federal, state, and local law enforcement entities.
- Require all agencies to publish their policies surrounding the collection, use, and retention of biometric data, as well as any memoranda of understanding regarding sharing of biometric data and/or the interoperability of databases containing biometric data.
- Commit to disclosing policies and privacy and civil liberties safeguards governing Joint Terrorism Task Forces and intelligence fusion centers, including policies and agreements governing sharing of information with state, local, and tribal government entities and the use of investigative technologies.
- Require the Department of Justice and Federal Bureau of Investigations to provide information regarding their use of resources to address white nationalist violence, including data regarding investigations, prosecutions, and convictions.
- Require the Department of Justice to promulgate new pro-transparency rules governing the immigration court system, which is housed within the Justice Department’s Executive Office for Immigration Review.
- Require the Justice Department Executive Office for Immigration Review to proactively disclose immigration data to individuals in removal proceedings without the need to file a Freedom of Information Act or Privacy Act request.
- Require Immigration and Customs Enforcement to report publicly on use of force incidents and deaths within detention facilities.
- Require federal law enforcement employees, including contractors and subcontractors, to display clearly visible identifying information, including the federal agency and name or unique identifier of the officer, when engaged in crowd control, riot control, or the arrest or detainment of individuals engaged in protests, demonstrations, or riots
Appendix 1.9: Use of Legal Force Overseas and Military/Contractor Deployment Information to release regarding use of lethal force overseas and military/contractor deployment:
- Declassify and publicly release information about lethal strikes by intelligence and military entities outside “areas of active hostilities,” including the number and location of alleged combatants and civilians killed as a result of U.S. use of force.
- Resume disclosing U.S. military personnel and contractor numbers in Afghanistan, Iraq, and Syria.
- Provide meaningful public transparency into the Central Intelligence Agency and military agencies’ use of lethal force abroad, including all legal interpretations and policies and legal and policy analyses on how the new and previous administrations interpret their authority to use force abroad, as well as full and timely compliance with mandatory reporting to Congress on civilian casualties and the legal and policy frameworks for use of force, maximizing the amount of information included in unclassified reporting.
- Make public the total size and the annual and lifetime cost of the U.S. nuclear stockpile.
- Require the Department of Defense to include in its annual budget documents how Overseas Contingency Operations funds were spent in the previous year and make any requests for reprogramming these accounts public.
- Require the Department of Defense to produce, as the State Department does for foreign assistance, an annual budget justification document for all Department of Defense-funded military assistance that includes country-specific justifications and strategic objectives. Require the State, Defense, and Commerce Departments to publicly disclose the specific country recipient, type of weapon, and final dollar amount of security assistance delivered each year.
- Disclose the status and results of investigations into civilian harm and credibly alleged wrongful killings abroad to the public and to affected civilians, including accountability measures taken, with appropriate privacy safeguards.
- Publicly acknowledge any U.S. role in partnered operations that involve the use of force, including acknowledging reports of civilian harm or human rights violations.
- Declassify and release publicly all previous 48-hour War Powers Resolution notifications to Congress, and commit to making future notifications in unclassified form or, at minimum, with an unclassified summary.
1 5 USC 552(a)(6)(E)