About 50 million more threats every year. That’s the estimated number of records annually classified as confidential, secret or top secret by the U.S. government.
The U.S. has an overclassification problem, which, experts say, ironically threatens the nation’s security.
Those in the intelligence field, along with at least eight special commissions through the decades, acknowledge the security risk of nearly 2,000 workers processing tens of millions of classified records each year, which could be viewed and potentially leaked or misplaced by more than 4.2 million government employees and contractors who have access to them.
I have seen the secrecy creep – more classification and more withholding of information by the government – growing for decades, as a scholar who studies freedom of information, as recent president of the National Freedom of Information Coalition and as incoming director of the Brechner Freedom of Information Project at the University of Florida. Also, as a member of the Federal Freedom of Information Act Advisory Committee, I see firsthand the struggles the U.S. faces in maintaining transparent, accountable government.
The classified federal records are made secret based on categories defined by the president through executive orders, not law. These records can include just about anything a government employee deems confidential, secret, top secret, sensitive or restricted.
While classification is intended to protect the national security of the nation – such as weapons data, military plans and codes – often records with no direct connection to national security are hidden, including already published newspaper articles, sometimes to prevent agency embarrassment or accountability.
Experts and members of Congress acknowledge that 90% of classified records do not need to be classified.
J. William Leonard, former director of the Information Security Oversight Office, which oversees the classification system, testified in 2016 before Congress that overclassification is rampant throughout federal government.
The 9/11 Commission concluded that excessive classification inhibited the ability of defense agencies to share critical files, contributing to the terrorists’ success in killing nearly 3,000 Americans. They said, “No one has to pay the long-term costs of overclassifying information, though these costs – even in literal financial terms – are substantial.”
Former President Barack Obama noted the problem in a 2016 Fox News interview:
“There’s classified,” he said, “and then there’s ‘classified.’ There’s stuff that is really top secret top secret, and there’s stuff that is being presented to the president or the secretary of state that you might not want on the transom or going out over the wire but is basically stuff that you could get in open source.”
Overclassification leads to more leaking of dangerous information, according to the Public Interest Declassification Board, a congressional advisory group that recommends policies to the president on classification.
Overclassification impedes information-sharing by agencies and makes people trust the system less. Some government employees may even come to believe the system is too secretive. That “may encourage dangerous information leaks from within the government,” stated the board’s 2020 report urging modernization of the system.
Founders started it
Government secrecy started before the U.S. even had a government.
The Constitutional Convention in 1787 was held in secret, and the Senate debated the Bill of Rights behind closed doors in 1791. Congress didn’t print its approved laws for the public until 1795 – nearly two decades after the founding of the United States and six years after the Constitution’s ratification.
From the country’s earliest days, presidents sought to restrict information from the public – and even from Congress. George Washington kept secret his treaty communications with Britain in 1795, and John Adams hid treaty negotiations with France in 1798, all in the name of national security.
Franklin D. Roosevelt was the first president to officially classify documents. He issued Executive Order 8381 in 1940 to keep some military records hidden. Succeeding presidents followed suit, greatly expanding secrecy through the decades. The most recent order, issued by Barack Obama in 2009, stands today.
Santa and Conan
Classification has become so prevalent that the outcomes are sometimes meaningless, sometimes nefarious and sometimes absurd.
Lauren Harper, director of public policy and open government affairs for the National Security Archive, a nonprofit that collects federal records for historians, notes some of the worst examples of overclassification:
• The CIA labeled as confidential a weekly terrorism situation report on Dec. 17, 1974, stating, “A new organization of uncertain makeup, using the name ‘Group of the Martyr Ebenezer Scrooge,’ plans to sabotage the annual courier flight of the Government of the North Pole. …” The memo, a CIA inside-office joke, wasn’t made public until 1999.
• A 1975 government biographical dossier on former Chilean Gen. Augusto Pinochet, kept secret on national security grounds, stated that the dictator’s favorite liquor was “scotch and pisco sours.”
• The government argued that records documenting the sex of Conan the dog, which participated in the 2019 raid to kill Islamic State leader Abu Bakr al-Baghdadi, were a national security secret.
• Historical documents about the Bay of Pigs were released in 2016 after decades of the CIA arguing the information would “confuse the public.” In actuality, they were covering up embarrassing internal political bickering.
Sometimes records are kept secret to avoid criticism, such as the documents hidden by the George W. Bush administration to cover up instructions for effective torture.
Transparency vs. secrecy
Many recommendations to diminish overclassification have been offered by experts and special commissions over the decades, with little progress. Federal agencies push back against transparency, presidents defer to secrecy and the inertia of federal bureaucracy favors the status quo. But perhaps bipartisan cooperation in Congress can get somewhere on several fronts.
Legislators could simplify the levels of classification, focusing only on what specific information would truly harm national security and align the level of protection with the level of harm.
Significantly increased funding would help modernize the operations of the National Archives and Records Administration, which oversees classification efforts and is hamstrung by old technology in a digitized world. The agency’s annual budget has flatlined at about US$320 million for the past three decades. Congress could invest in more sophisticated technology, such as artificial intelligence and machine learning, to better identify records that should be classified and those that shouldn’t be classified. New research indicates that machine learning can save government employees time in identifying parts of records that should be kept secret.
Finally, classifications can be hit and miss, and agencies should be required to accurately delineate what is classified and what isn’t and label the classified parts of records accurately, as recommended last year by the Federal FOIA Advisory Committee.
Some secrets are necessary, and I believe the classification system can be strengthened, for the good of national security and the ability of citizens to know what their government is up to. Sometimes, less secrecy brings more safety.
David Cuillier is incoming director of the Brechner Freedom of Information Project at the University of Florida and recent president of the National Freedom of Information Coalition, a nonprofit that supports state coalitions for open government. He has been commissioned by the Knight Foundation for research on freedom of information. He is founding editor of the Journal of Civic Information. He is currently a member of the Federal Freedom of Information Act Advisory Committee under the National Archives and Records Administration. He also has served as Freedom of Information Committee chair and national president of the Society of Professional Journalists, which has advocated for greater transparency in government.