Re-Understanding the Pentagon Papers and Other Secrets? New Law Review Article Proposes New Framework for Government Secrecy

The Stanford Law Review‘s January 2010 issue includes Deep Secrecy, 62 Stan. L. Rev. 257 (2010), an article by recent Yale Law School grad David Pozen that proposes a new theoretical framework for understanding government secrets (pdf of article; earlier article draft on SSRN).

According to the Review’s abstract:

This Article offers a new way of thinking and talking about government secrecy. In the vast literature on the topic, little attention has been paid to the structure of government secrets, as distinct from their substance or function. Yet these secrets differ systematically depending on how many people know of their existence, what sorts of people know, how much they know, and how soon they know. When a small group of similarly situated officials conceals from outsiders the fact that it is concealing something, the result is a deep secret. When members of the general public understand they are being denied particular items of information, the result is a shallow secret. Every act of state secrecy can be located on a continuum ranging between these two poles.

After tracing some of the existing constituional, structural, and theoretical analyses of government secrets, Pozen applies his new framework to point out that the deeper a secret, the smaller the group of people (and possibly dissenting views) available to deliberate about it.  Pozen notes that government can still keep the substance of some government actions as “shallow secrets” while allowing additional debate and deliberation, concluding that:

Even among the subset of government secrets about which the public knows nothing . . . the comparative insularity of the deeper secrets can pose a special threat to good governance, to liberal democratic values, even to the Constitution. We cannot and should not seek to prevent the executive branch from keeping secrets. We can and should seek to have them kept as shallow as possible.

Along the way, Pozen evaluates a number of the secrets kept by the Bush administration, including many that are discussed elsewhere on this website.  For Pozen’s take on the Pentagon Papers era, see p. 292 of the article where he describes the Vietnam and Watergate era as one of the first times in American history where scholars began to see the government’s asserted need for secrecy as implicating constitutional values.

Former CIA Director Hayden Addresses CFR

Secrecy News filed this report on General Hayden’s address:

Unauthorized disclosures of classified information in the press led to the imprisonment of a CIA source and other damaging consequences, said Central Intelligence Agency Director Michael Hayden in a speech last week. “Some say there is no evidence that leaks of classified information have harmed national security. As CIA Director, I’m telling you there is, and they have,” Hayden told the Council on Foreign Relations. “Let me give you just two examples:  In one case, leaks provided ammunition for a government to prosecute and imprison one of our sources, whose family was also endangered. The revelations had an immediate, chilling effect on our ability to collect against a top-priority target.” “In another, a spate of media reports cost us several promising counterterrorism and counterproliferation assets. Sources not even involved in the exposed operation lost confidence that their relationship with us could be kept secret, and they stopped reporting.” “More than one foreign service has told us that, because of public disclosures, they had to withhold intelligence that they otherwise would have shared with us. That gap in information puts Americans at risk.” “Those who are entrusted with America’s secrets and break that trust by divulging those secrets are guilty of a crime. But those who seek such information and then choose to publish it are not without responsibilities.”

In his comments on unauthorized disclosures, Director Hayden did not address wrongful withholding of information, and did not acknowledge any reasons why American might be skeptical of CIA disclosure policies. “CIA acts within a strong framework of law and oversight,” he said. While leaks have been a perennial problem from the government’s point of view, it does not follow that new legislation to combat them is a fitting solution. “I am not aware of a single case involving the unauthorized disclosure of classified information that would have been prosecuted but could not be because of the lack of statutory coverage,” said Attorney General John Ashcroft in testimony prepared for the Senate Intelligence Committee in 2001. The Ashcroft testimony, dated September 5, 2001, represents a missing link between the testimony of Janet Reno on the same subject on June 14, 2000, and a subsequent report to Congress on leaks that was submitted by Mr. Ashcroft in October 2002. The testimony was approved by the White House Office of Management and Budget, according to a handwritten notation on the document, but the scheduled Intelligence Committee hearing was cancelled and the Ashcroft testimony was never delivered. A copy of the text was obtained under the Freedom of Information Act by Michael Ravnitzky.