Twenty years ago, Senator Patrick Moynihan chaired a “Commission on Protecting and Reducing Government Secrecy” to investigate the executive’s procedures of classifying information. The resulting report detailed the problem of overclassification, wherein executive agencies withhold information from the public for impermissible or nonexistent reasons. The Report’s conclusion: “There needs to be some check on the unrestrained discretion to create secrets. There needs to be an effective mode of declassification.”
Unfortunately, there has been no such check. While classification has grown exponentially, efforts to declassify information have declined.
Source: Data compiled from Information Security Oversight Office Reports. Note that “Pages” and “Decisions” are different units of measurement; a single classification “decision” may redact hundreds of pages.
While overclassification is commonly viewed as an inadvertent result of bureaucratization, evidence suggest that agencies sometimes intentionally misuse their classification authority for nefarious purposes. The 2014 Senate Torture Report described in detail how the CIA selectively released classified information that suggested its “enhanced interrogation program” (torture) was effective, while withholding the overwhelming body of evidence that suggested otherwise. The report alleges that the CIA intentionally used this strategy to convince the public that torture was necessary.
What can be done? Who can judge the propriety of the agencies’ redactions?
That is the issue in Hussain v. Carter, a MFIA case in which our ProPublica client is trying to unseal the docket of Abu Zubaydah’s petition for writ of habeas corpus in the D.C. District Court. Abu Zubaydah is a Guantánamo detainee and the first person to be subjected to the CIA’s torture program. Virtually the entire docket of his habeas corpus litigation was sealed from the public before MFIA intervened to unseal those records. While our intervention resulted in the release of 39 filings, many of those filings contain pages upon pages of redactions.
The executive maintains that it has unilateral authority to determine which information is classified and therefore withheld from the public. But that position ignores the Supreme Court’s jurisprudence which holds that the public has a First Amendment right of access to court dockets and requires the judiciary—not the executive—to determine whether that right is overcome. Of course, courts should afford some deference to the executive’s classification decisions, but courts must independently verify that releasing information would logically and plausibly result in a substantial likelihood of harm to national security.
Even a cursory glance at the Hussain v. Carter docket reveals that the agencies can make no such showing in this case. For example, this publicly available ICRC report appears on the docket twice. The first time, it appears as published, without redactions; the second time, all 40 pages are blacked out. How can the government argue that disclosing this publicly available report will harm national security, and why the inconsistency?
We don’t know because the agencies’ reasons for classifying this information are themselves classified. In response to our brief, the FBI submitted a 25-page declaration explaining the reasons for its redactions. But that declaration is completely redacted; the page number at the bottom of the page is the only text not covered in black ink. The CIA went even further: it submitted an ex-parte declaration to the court, presumably because even the number of pages in that declaration is classified.
We hope that the court will look past the agencies’ vague assertions of harm and ask: does any of this make sense? Will American lives really be put at risk from the revelation of information that is already in the public domain? We doubt it. We believe that the only thing the redacted information will reveal is that the government’s classification system is broken.
—Andrew Udelsman ’17