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Officials are conceiving of and carrying out counterterrorism strategies behind closed doors. The Brennan Center for Justice works to improve transparency and prevent future abuses committed in the name of national security.

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Why It Matters

National secur­ity might some­times require that the oper­a­tional details of milit­ary or intel­li­gence efforts be kept secret. Federal offi­cials and outside experts agree, however, that far too much inform­a­tion is clas­si­fied and with­held from the public. Moreover, the law itself should never be secret. Our research shows that the govern­ment is increas­ingly rely­ing on a vast body of secret law to author­ize its national secur­ity activ­it­ies. Excess­ive secrecy in national secur­ity policy under­mines the basic func­tions of demo­cratic self-govern­ment.

Without trans­par­ency, there can be no account­ab­il­ity for govern­ment abuses and no way to ensure that our govern­ment’s actions reflect the will of the people. Excess­ive secrecy also damages national secur­ity. After 9/11, the Bush admin­is­tra­tion developed and imple­men­ted coun­terter­ror­ism policies behind closed doors and with little exchange of ideas. The result: programs that infringed on Amer­ic­ans’ civil liber­ties and policies that alien­ated our allies. Many of these meas­ures became power­ful recruit­ing tools for our enemies and under­cut our abil­ity to insist on the humane treat­ment of Amer­ican soldiers. 

The Obama admin­is­tra­tion contin­ued to shroud much of the exec­ut­ive branch’s coun­terter­ror­ism work in secrecy until Edward Snowden revealed that the National Secur­ity Admin­is­tra­tion had created a secret data­base of inform­a­tion about Amer­ic­ans’ tele­phone calls. That disclos­ure triggered public outcry and legal reform; it also forced the Obama admin­is­tra­tion to adopt a new, more trans­par­ent approach. Even then, too much remained secret, and much of the progress that was made toward greater trans­par­ency is threatened by the Trump admin­is­tra­tion. The Bren­nan Center exposes these prob­lems and proposes solu­tions ranging from increased congres­sional over­sight to rework­ing the exec­ut­ive order govern­ing clas­si­fic­a­tion. 

Solutions

Change the Incent­ives That Lead to Over­clas­si­fic­a­tion

The exec­ut­ive order govern­ing clas­si­fic­a­tion should be revised to require offi­cials with clas­si­fic­a­tion author­ity to docu­ment their reas­ons for clas­si­fy­ing inform­a­tion, and to require agen­cies to conduct spot audits for the purpose of identi­fy­ing and hold­ing account­able those who routinely over­clas­sify.

Curtail Secret Law

The pres­id­ent or Congress should adopt rules to sharply limit clas­si­fic­a­tion of the legal stand­ards govern­ing offi­cial conduct, whether in the form of agency rules and regu­la­tions, bind­ing legal opin­ions issued by the Justice Depart­ment’s Office of Legal Coun­sel, inter­na­tional agree­ments that have the same legal force as treat­ies, or rulings of the Foreign Intel­li­gence Surveil­lance Court.

Read more in our Secret Law report.

Rethink Intel­li­gence

The intel­li­gence estab­lish­ment has grown too large, expens­ive, power­ful, inef­fect­ive, and unac­count­able to the Amer­ican people. It is time to make intel­li­gence collec­tion more effect­ive and more protect­ive of indi­vidual rights.

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