The President demands Investigations into governmental leaks. The Attorney-General and other officials say, or sometimes leak, that they are investigating leaks. The statements, however, use one broad term—“leaks”—to cover all sorts of releases informing the public about its government. The government officials railing against the disclosure seem to imply that all leaks are an existential threat to the country.
Is that right? Do all leaks harm national security? Should we really put into one basket a leak about clashes among White House advisors, a leak of our President’s conversation with his counterpart from Mexico, and a leak about troop movements during wartime? If you follow the news, in your lifetime you have learned about leaked information thousands, probably many, many thousands of times. Think back. How many of them have actually harmed the United States? Quick, name me ten. How about five?
Many politicians have an instinctual desire to keep hidden from the public all sorts of information even when it does not contain national security secrets. We should realize that a disclosure that embarrasses a government official is not the same as a disclosure that harms national security. We should be skeptical of why such non-classified information is secreted.
But let’s talk about “official” secrets and the elaborate classification industry that keeps them hidden. The first reaction by many to the disclosure of classified information is that it is shameful, criminal, harmful, and unpatriotic, but we, especially those of us who proclaim to be conservative, should have another response to the classification industry. A generation ago, a commission studying government secrecy gave a perspective, which while true, is seldom considered. The commission stated, “Secrecy is a form of government regulation. Americans are familiar with the tendency to overregulate in other areas. What is different with secrecy is that the public cannot know the extent or the content of the regulation.”
If we saw every government secret as a regulation, if we saw the classification industry as a giant government bureaucracy, we might question secrecy more. Is it really possible that so much must be classified? According to an annual report from the Information Security Oversight Office of the National Archives and Records Administration, over 55 million items were classified—mandated to be kept confidential–in whole or in part in Fiscal Year 2016 alone. If you believe that the federal government overregulates in other areas, surely you should think it also does so in the secrecy business. Commissions studying our classification regime have time and again found rampant overclassification, with some of the studies concluding that 50% to 90% of what is classified could safely be released. Perhaps the most striking fact about overclassification is that while we hear concerns about the disclosure of classified information, students of the classification industry have reported that they know of no instance when a government official has been disciplined for classifying information that should have been public.
Our most famous leak may have been of the Pentagon Papers. The government went into hyper-crisis mode. It tried to upend the First Amendment and suppress the Papers’ publication. It brought criminal charges against those who brought them into the public light. It, in essence, said that if ever a leak harmed national security and put the country into danger, this was it. After all we were then fighting the Vietnam War. Later, however, President Nixon’s Solicitor General confessed that the Papers were an example of “massive overclassification.” The Papers’ were analyses of documents that had been written years before the Papers publication and posed “no trace of a threat to the national security.”
We do, however, pay a lot for this bureaucratic secrecy system. The Information Security Oversight Office estimates that the federal government spent over $16 billion on our classification system. But, wait. There’s more. The ISOO estimates that private industry spent an additional $1.27 billion because many defense contractors and other industries are part of the wide ranging secrecy business. (Why isn’t this regulatory, expensive bureaucracy a target of conservatives?)
I am hardly the first person to note what we all know: that secrets have a way of getting out; that keeping secrets has never been easy; that secrets are like organisms that find a way to get free. Centuries ago Dr. Samuel Johnson said what still remains true: “Secrets are so seldom kept, that it may be with some reason doubted whether a secret has not some volatility by which it escapes, imperceptibly, at the smallest vent, or some power of fermentation, by which it expands itself, so as to burst the heart that will not give it way.”
Because so much is labeled secret and because human nature apparently abhors secrecy, it is not surprising that classified information finds a way to escape. Now add to that that about 4.5 million people have access to classified information, it is hardly surprising that there are leaks of classified information. Indeed it is surprising that there are not more. And since so much of the information is needlessly labeled secret, it should not be surprising that even leaks of classified information will often not harm national security.
We should be concerned about disclosures that are harmful, but talking about the harm from leaks is not the right starting point. A foundation of a free and open society is that information about the government and its doings should be free and open. Openness should be the norm; secrecy should be the rare exception. If we are in a free and open society, we should expect information to be public. We should be regularly challenging governmental secrecy. That does not mean that the government cannot have information kept from the public, but there should be exceptional reasons for doing so, and we should be regularly examining whether the reasons given for hiding information are truly exceptional.