Government is too secret

Opinion: July 30, 2010 at 12:00a.m.

By Erwin Chemerinsky

Los Angeles Times

The most important lesson from the release of tens of thousands of pages of classified information about the war in Afghanistan seems to be getting lost: Far too much information is classified, often simply because it is embarrassing to the government. White House press secretary Robert Gibbs said that there “weren’t any new revelations in the material,” and nothing has been identified that is likely to be damaging to national security. Then why was so much of this material classified and kept from the public?

The parallel to the Pentagon Papers is striking. In 1971, the New York Times, and then other newspapers, sought to publish a classified history of America’s involvement in the Vietnam War. The federal government went to federal court to seek an injunction to stop the newspapers from publishing daily installments. At every level of the courts, the United States claimed that publication of the classified material would cause grave danger to national security.

Ultimately, the Supreme Court ruled in favor of the newspapers, in large part because the government couldn’t point to any material that would be harmful to reveal. Whitney North Seymour Jr., the U.S. attorney for the Southern District of New York who defended the federal government, later said that he kept pressing the officials in the Defense Department for examples of material that would be damaging to release. They never could point to any, although they constantly asserted that publication would be harmful.

Historical material

The Nixon administration vehemently opposed the release of the Pentagon Papers even though the documents were largely historical material about what occurred during prior presidencies. The Obama administration has decried the release of the information about the war in Afghanistan even though it appears to be primarily about what happened during the George W. Bush presidency. The reason is the same in both cases: The administrations feared that the disclosures would undermine public support for the wars in question. In both instances, the concern was that the revelations might make it harder to gain continued congressional support and to sustain public support for the war effort.

But that is not a sufficient basis for secrecy. The disclosures about the Afghanistan war include instances of U.S. troops accidentally killing civilians, corruption in the U.S.-backed Karzai government and revelations about Pakistani assistance to Afghan insurgents. Much of the information raises questions of whether the war in Afghanistan can succeed. All of this is crucial information as Congress debates how to proceed in Afghanistan and the American people make up their minds about the war. Information should not be classified just because it is embarrassing or simply because its revelation might make it harder for the administration to pursue its objectives.

Vivid illustration

Indeed, for democracy to work, it is essential that congressional officials and the public have exactly this type of information. This was vividly illustrated during the George W. Bush administration. When the New York Times learned that the National Security Agency was engaged in massive illegal electronic surveillance of American citizens, President Bush threatened the publisher and editors with possible criminal prosecution and told them that they could “have blood on their hands” if they disclosed the secret program. When the Washington Post disclosed classified information that the CIA had illegal “extraordinary rendition” camps, the Bush administration again threatened criminal prosecution. Yet, in both instances, disclosure caused no apparent harm to national security and actually caused the government to stop its illegal actions.

Of course, there is information that must be kept secret for the sake of national security and whose revelation must be punished. The 1st Amendment and freedom of information are not absolute. Disclosing the identity of covert agents in the field or the location of U.S. nuclear missile sites, or revealing certain aspects of war strategy are examples of this. But the Obama administration has not claimed that there is anything of this sort in the Times material.

The conclusion seems inescapable that the vast majority of this material should not have been classified. The documents’ release should be the occasion, once more, for a careful reconsideration of government secrecy and ought to lead to policies that ensure that material is classified only if its release truly would be a risk to national security.

Erwin Chemerinsky is dean and a professor at the UC Irvine School of Law. He wrote this for the Los Angeles Times. Distributed by McClatchy-Tribune Information Services.