Classified Information is information held by executive agencies of government that only persons with special permission (‘‘clearance’’) are allowed to see. While the term ‘‘classified’’ is of fairly recent origin, executive efforts to withhold information from the general public, the press, Congress, and the courts go back to the earliest days of the Republic.
The constitutional basis, if any, for such efforts has been equally long disputed. Accountability of government to the people is a fundamental principle, and secrecy inherently compromises it, since one cannot judge or modify policies one does not know of. The Constitution addresses government control of information in several different provisions. One is the requirement that the President shall–not may–inform Congress from time to time of the state of the union.
The only provision aimed explicitly at secrecy is Article I, section 5, which provides that ‘‘Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy (emphasis added).’’ Obviously, this is not a grant of power to the executive branch.
The separation of powers system entails numerous types of interbranch communication. Practices dating back to Washington’s presidency include congressional requests for information from the President or his department heads and presidential transmittals that asked Congress to keep certain information confidential. Over time, the President realized that the two Houses would not invariably abide by his requests and that individual members might sometimes leak information on their own. This led to the confrontation over Jay’s Treaty, in which Washington refused outright to honor a call for papers by the House of Representatives. This episode is sometimes invoked as precedent for ‘‘executive privilege’’ to withhold information. Yet, in actuality, the House adopted resolutions of protest, declaring the President’s act unconstitutional.
Similar conflicts would recur from time to time, with varying results depending on the political situation. Appeals for secrecy were often effectively pressed when national defense and foreign policy concerns were at stake, but Congress never formally relinquished its role as ‘‘grand inquest of the nation.’’
A formalized system for protecting these types of information awaited America’s rise to great power status and the coinciding expansion of the executive bureaucracy, both of which massively increased the quantity of potentially sensitive official documents. Today’s classification system originated in 1951, when President Truman, without a legislative mandate, issued an executive order authorizing officials in both military and civilian agencies to designate information as ‘‘confidential,’’ ‘‘secret,’’ or ‘‘top secret.’’ Over time additional, even more restrictive, designations have evolved. The power to classify is wielded by thousands of officials in many different agencies. The criteria are rather permissive: classification is permitted if release ‘‘could reasonably be expected to cause damage to the national security.’’ Because control of information confers power, both high-level policy makers and ordinary officials have incentives to err on the side of secrecy. Currently, the government produces millions of classified documents each year.
Details of the guidelines have been repeatedly revised, but the constant is that classification limits access to those cleared by the executive branch, after careful background checks, to receive a specific category of information. Most members of Congress, the judiciary, the media, and the public are excluded, and disclosure to such persons or possession by them could perhaps be criminally prosecuted. Since provisions for automatic declassification after a period of years have not been effectively implemented, the system obstructs historical research, as well as debate on current policy issues.
The courts have had very limited involvement with the growth, administration, and regulation of the secrecy system. Since 1967, anyone may file a request for any identifiable document under the Freedom of Information Act, but there is an exception for information that is properly classified. Under a 1974 amendment, such a request may lead to court review of whether the document can safely be declassified, in whole or in part. This procedure is protracted and costly and is, of course, unavailable where the very existence of the information is unknown.
A few cases seem to acknowledge a power of the President, whether ‘‘inherent’’ or arguably implied by legislation, to withhold information sought by parties in litigation. Courts have sometimes been reluctant even to examine the requested documents to balance the requesting party’s need against the alleged need for secrecy. The executive action complained of is then unreviewable. See Totten v. United States, 92 U.S. 105 (1876), United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936), Chicago and Southern Airlines v. Waterman Steamship Corp., 333 U.S. 103 (1948), Knauff v. Shaughnessy, 338 U.S. 537 (1950), United States v. Reynolds, 345 U.S. 1 (1953), Haig v. Agee, 453 U.S. 280 (1981), Department of the Navy v.
Egan, 484 U.S. 518 (1988). The Court has also upheld the oaths of secrecy required of certain officials given access to Classified Information and enforced them with life-long prepublication clearance requirements and confiscation of profits–even where no Classified Information was disclosed. Snepp v. United States, 444 U.S. 507 (1980).
On the other hand, in New York Times Co. v. United States, 403 U.S. 713 (1971), the Court declined to enjoin publication of the Pentagon Papers, despite an insistent claim of danger to national security. In United States v. Nixon, 418 U.S. 683 (1974), the President was ordered to surrender his Oval Office tapes to the Special Prosecutor. Nixon had considered invoking national security in this case but for some reason did not do so, relying instead on a distinct privilege for confidential advice.
In sum, the courts are scarcely an effective check on executive secrecy in the domain of national security information. Since Congress and the media have usually shown an equal timidity, it seems that the needed institutional check does not exist. The implications for civil liberties are potentially grave: first, the rights to speak, publish, and participate in debate are hampered by withholding of crucial information. Second, individuals may be subject to loss of employment, denial of redress for damages, revocation of passports, deportation (for aliens), even (for ‘‘unlawful combatants’’) indefinite detention, based on Classified Information they are not allowed to see.
DANIEL N. HOFFMAN
References and Further Reading
- Hoffman, Daniel N. Governmental Secrecy and the Founding Fathers: A Study in Constitutional Controls. Westport, CT: Greenwood Press, 1981.
Cases and Statutes Cited
- Chicago and Southern Airlines v. Waterman Steamship Corp., 333 U.S. 103 (1948)
- Department of the Navy v. Egan, 484 U.S. 518 (1988)
- Haig v. Agee, 453 U.S. 280 (1981)
- Knauff v. Shaughnessy, 338 U.S. 537 (1950)
- New York Times Co. v. United States, 403 U.S. 713 (1971)
- Snepp v. United States, 444 U.S. 507 (1980)
- Totten v. United States, 92 U.S. 105 (1876)
- United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936)
- United States v. Nixon, 418 U.S. 683 (1974)
- United States v. Reynolds, 345 U.S. 1 (1953)