Over-reaching secrecy undermines America's safety
By Paul K. McMasters, Ombudsman, First Amendment Center , Sunday, June 20, 2004

In the war on terror, information is our most powerful weapon. But our leaders seem determined to disarm the American citizenry.

Not that Americans have been all that heavily armed with government information. Ironically for an open society, we have warehouses filled with secrets. And we keep grinding out more.

Last year, the federal government created 14 million new secrets, a 25% increase over the previous year, which was a record, also. There has been a significant slowdown in the declassification of old secrets. There are new efforts to reclassify secrets that have been unclassified. The president has granted classification authority to four new federal agencies. More than 4,000 individuals now have the power to wield the "Top Secret" stamp.

Many in the intelligence community even agree that we have far too many secrets for good governance. But since Sept. 11, 2001, secrecy has become the default setting for government policy. In addition to producing more secrets, officials have created a host of non-secret categories of information to be kept from the public. The list of new and old terms put to new or expanded use is long - among them, critical infrastructure information, critical energy infrastructure information, protected confidential infrastructure information, sensitive but unclassified, sensitive homeland security information and sensitive transportation security information.

The latest term called back to service is "Sensitive Security Information," or SSI, which is the subject of a new rule put into effect last week by the Transportation Security Administration, a component of the Department of Homeland Security. In addition, a congressional conference committee has taken up an amendment to the omnibus transportation bill that would expand the definition of SSI and extend its reach even further than the TSA rule.

SSI is defined as "unclassified information of a sensitive nature, that if publicly disclosed could be expected to have a harmful impact on the security of Federal operations or assets, the health and safety of the public, or the nation's long-term economic prosperity." It includes information that would invade personal privacy, reveal commercial or financial information or any other information that would "be detrimental to the security of transportation."

If all goes as planned, the Transportation Security Administration will have the authority to prohibit the release of vast amounts of material having to do with transportation and travel by air, rail, sea and highway. That authority would go far beyond what is necessary or safe.

SSI will be exempt from the Freedom of Information Act. It will override local and state access laws. Congressional oversight over SSI designations will be sketchy. Provisions for internal review of procedures and designations are not apparent. Judicial review will be constrained by a 1993 court decision on a much narrower version of SSI. And there is no expiration date on such material; it is born "SSI" and it never dies.

Under these circumstances, it will be difficult if not impossible for the public to hold the Transportation Security Administration accountable for the way it might use its expanded authority.

There is no question that there is some information that should not be disclosed to the American public in order to safeguard our security. But there also is no question that there are massive amounts of information - whether SSI, CII, SBU or any other in the current lexicon of secrecy - being withheld from the public unnecessarily and arbitrarily.

Denial of access to public information on such a massive scale limits our First Amendment right to engage in informed democratic discourse and prevents us from being full partners in our own governance. Moreover, it puts us in more peril than we need to be.

Millions of Americans live in the shadow of nuclear or chemical plants that have not been hardened against attack or accident. Trucks and railroad cars hurtle past our homes carrying lethal loads. Biological and other threats stalk our neighborhoods. First responders, medical institutions and voluntary crisis organizations often lack training, equipment or resources. And local officials are for the most part out of the information loop.

All this creates a situation in which potential targets of attack - or accident - will not be hardened, or hardened soon enough, because citizens will not be informed enough to be able to bring public pressure to bear on government officials.

The homeland security mandate should be to use information, not to control it.

Unless our elected and appointed officials confront the need for more thoughtful and less reflexive information polices, here is what we face: We will collect more information than we can process. We will install more procedures than we can support. We will force state and local officials into a network of secrecy that hobbles their ability to work with one another and puts them in conflict with the interests of their communities. We will remove ordinary citizens, private experts, first responders and others with critical knowledge and experience from the solution-making process.

Those charged with making us secure must recognize the value in sharing information judiciously with the American public. That builds confidence in government leadership. It creates ownership of government policies. And it generates a flow of information and good ideas from citizens to officials.

In a democracy, over-reaching secrecy does not make us safer; rather it creates only the equality of ignorance.


pmcmasters@fac.org

Paul K. McMasters is one of the nation's leading authorities on First Amendment and freedom-of-information issues. He joined the Freedom Forum in 1992 after 33 years in daily journalism. Since 1995, he has served as the First Amendment ombudsman. In that position, he works to educate and inform about First Amendment issues that arise in Congress, the courts, the media and other areas of public life. Send e-mail to McMasters