The President Won’t Fix Our Broken Secrecy System

Republican and Democratic senators have joined in warning of dire consequences if they are not told what secrets are contained in the classified documents left unsecured by Donald Trump and Joe Biden. How, they ask, can they exercise oversight if they do not know what might have been lost or stolen? After all, some of this information was Top Secret, and therefore “could be expected to cause exceptionally grave damage to the national security…”

Senators themselves have long been required to take extraordinary care with classified documents, and are barred even from removing notes from the secure facility where they are stored. Even this partial access was a hard-won concession, and only came about in 1976 after the exposure of decades of criminal behavior inside the intelligence community. What information is actually shared with oversight committees depends on a delicate relationship between these two branches of government. Unfortunately for the rest of us, mutual trust is measured by their shared willingness to keep information from the American people.

No one understands this better than President Biden. After all, he was a charter member of the Senate Select Committee on Intelligence. One of the first times the junior senator rose to national attention was when he torpedoed Jimmy Carter’s pick for CIA director, Ted Sorensen, a nomination that was bitterly resisted by the CIA itself. According to Sorensen, Biden told him that he was “the best appointment Carter has made!” But as opposition gathered, Biden unearthed an affidavit from the Pentagon Papers case in which the nominee had disclosed removing boxes of classified documents from the White House. He used them to write a bestselling biography of JFK. “Quite honestly,” Biden said, “I’m not sure whether or not Mr. Sorensen could be indicted or convicted under the espionage statutes.”

In an instant, Biden had established his credentials as a friend and confidant of the intelligence community. To Sorensen, the distinction was rather different: “The prize for political hypocrisy in a town noted for political hypocrisy went to Joe Biden.”

Read More: We Elected Joe Biden to be Better Than This

Flash forward to 2023. Washingtonians have finally completed a circular firing squad, in which everyone agrees that everyone else has been hiding information that belongs to the American people. At the same time, insiders sheepishly admit that, in practice, this information is often hoarded and traded, sometimes for fat book advances that come to former officials who promise to reveal their secrets. If everyone agrees this is unacceptable—at least when the other side does it—why have they allowed it to go on for so long? During Biden’s first year in office, he ignored calls to address the disastrous state of the FOIA system. After the Mar-a-Lago story broke, there were breathless reports of broad scale reform: “White House Launches New War on Secrecy.”

But even then, and even now, no White House official will go on the record about what is actually being proposed, or even who is supposedly waging this war on secrecy. One might think that Congress would insist that the executive branch be more open about its efforts to be more accountable to the American people. But in 2021 Ron Wyden, the senator justly credited with being the foremost advocate for declassification reform, had to put his proposals in a classified annex to the Intelligence Authorization Act.

Alas, many of the ideas that are now circulating were tried and failed before, whether tightening up the criteria for “special access programs”—supposedly even more secret than “top secret”—eliminating the lowest level of classification, or “automatic” declassification of old secrets. What all these ideas have in common is that they would, if effective, help the most senior officials currently serving better protect their own secrets, and not give Congress or the Courts reason—or capacity—to interfere.

Here again, no one knows this better than Biden. The same year he established his bona fides as a keeper of America’s secrets, Biden joined with good government groups in insisting on providing input when Carter actually shared a draft of his new executive order on national security information— something the Biden administration shows no interest in doing—when Carter too announced a war on secrecy. Biden called for a balancing test, in which responsible officials would have to weigh the public interest in democratic accountability and not just consider the risks to national security. He joined with Edmund Muskie in warning that, otherwise, Congress would pass legislation that would challenge the executive’s longstanding claim to have full control over defining and protecting state secrets. Back then, Biden was quite insistent that, “if we don’t codify the rights of Americans, and if we don’t define in law just what [the intelligence agencies] can and can’t do…the game is over as far as oversight is concerned.”

For Carter’s advisors, such threats seemed credible. As one asked, “Does [the] President wish to abandon ‘openness’ program to Congressional action?” They finally agreed to put the balancing test in Carter’s new Executive Order. But Carter’s national security advisor, Zbigniew Brzezinski, supplied government lawyers with a memo stipulating that this test would only apply in “rare” and “exceptional” cases. And far from reducing secrecy, officials classified information fifty percent more in five months in 1979 than all of 1977. They blamed this puzzling response to Carter’s order on better reporting. But then the total increased again in 1980, when officials reported classifying information some sixteen millions times.

When Ronald Reagan became president, he insisted that Carter had not been careful enough with the nation’s secrets, and his aides were intent on eliminating the balancing test. But they could not find even one case in which a court required disclosure because of it. Both then and now, judges are incredibly deferential to any claim by government lawyers that releasing classified records will endanger the republic.

In the years that followed, the problem of overclassification has kept growing. In 2008, Obama and Biden promised the most transparent administration in history. In addition to the balancing test, Obama’s Executive Order instructed officials not to classify information when there was significant doubt it really needed to be kept from the public. Instead, the number of times officials classified information reached an all-time high in 2012, 93 million, or three times every second. And more people were prosecuted for leaking secrets under the Espionage Act than under all previous administrations combined.

To her credit, Biden’s own director of national intelligence, Avril Haines, has called excessive secrecy “an urgent challenge to solve” both because it “undermines critical democratic objectives” and hampers the work of the intelligence community. But as Joe Biden himself said back in 2008, citing his own father as the source, “Don’t tell me what you value. Show me your budget, and I’ll tell you what you value.”

Alas, the intelligence community budget is classified. But the last time the government tried to guesstimate how much it spent to manage all these secrets, 2017, it came to 18.4 billion dollars. Declassification was the smallest category of all, and was down four percent from the year prior: $104 million.

So the next time a president tells you that they are striking a balance between national security and democratic accountability, you would be naive to believe them. You should instead believe Joe Biden when, all the way back in 1977, he concluded that continuing failures by the executive branch to get serious about excessive secrecy only underscored the need for a “legislative basis for the classification system.”

America needed “a statutory mandate for balancing public disclosure against the need to protect legitimate national security information.” And that law, unlike the Presidential Records Act passed the following year, needs an enforcement mechanism, so that courts stop letting public officials use the excuse of “national security” to cover up criminality and incompetence (or just steal or destroy their records). At the very least, we need Congress to begin striking a real balance in the money it appropriates for secrecy against what it provides for public accountability. Otherwise, we will continue getting exactly as much transparency as we pay for, and so much secrecy we won’t even be permitted to ask the price tag.