Secrecy's End

110 Pages Posted: 28 May 2021 Last revised: 20 Jan 2022

Date Written: May 24, 2021

Abstract

The United States government runs a massive system of national security secrecy. In 2017 (the last year for which there are data), over four million Americans with security clearances classified just over 49 million documents, a system that cost American taxpayers an estimated at $18.39 billion. This Article examines this massive yet poorly understood system of secrecy, asking what it aims to achieve, whether it serves those ends, and how it might serve them better. It begins by exploring why the system was created in the first place. It turns out that the now-ubiquitous classification system is a 20th century invention. In an odd twist, the criminal law enforcement of the rules preceded the rules themselves—the modern classification system did even not exist when the 1917 Espionage Act, which remains in effect today, passed in a fit of xenophobic wartime fear. In the years since World War II, Presidents have enjoyed almost complete control over the classification system, issuing executive orders that set the rules by which not only the executive branch must abide, but anyone who might come into contact with classified information must abide as well. Indeed, Congress itself has been caught in the vise, unable to release, for example, the full contents of a 2014 report on torture committed by the CIA because the CIA refused to declassify the information it contained. This system has produced a number of pathologies—keeping information from the public, intimidating the press, making selective prosecution possible, and subjecting current and former government officials to significant restrictions on their speech. Perhaps most important of all, it has too often undermined the purpose that it is supposed to serve: national security. Overclassification makes our secrets harder to protect, can lead to bad decision-making, and in the end often fails to effectively protect much of the information that really matters. The Article considers whether, given these failures, the system of secrecy as we know it should be brought to an end. If we gave up on the post-war experiment and ended the system of classification, what then? Taking the idea of ending the system of secrecy seriously is a way to think about not just what is wrong about the existing system but what is right and valuable about it as well. Those lessons form the foundation for concrete reform proposals that are more ambitious than reforms of the past and yet feasible.

Suggested Citation

Hathaway, Oona A., Secrecy's End (May 24, 2021). Minnesota Law Review, Vol. 106, 2021, Yale Law School, Public Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3852303

Oona A. Hathaway (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4992 (Phone)
203-432-1107 (Fax)

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