Can Congress Force the Executive Branch to Part With Some of Its Secrets?

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June 11 2013 7:53 PM

Declassify It

Congress has never been able to stop the over-classification of national security matters. Could they succeed now?

Committee Chairman Sen. Ron Wyden (D-OR) listens as members speak during a markup meeting of the Senate Energy and Natural Resources Committee March 21, 2013 in Washington, DC.
Sen. Ron Wyden has been a critic of national surveillance programs.

Photo by Win McNamee/Getty Images

Lindsey Graham has seen the enemy, and he is Edward Snowden. On Tuesday, the first long workday since the 29-year-old National Security Agency whistle-blower blurted out his identify, the senator from South Carolina told reporters what was wrong with Snowden and his type, and how to fix it.

David Weigel David Weigel

David Weigel is a Slate political reporter. 

“There’s a group of people, younger people not fighting the war—libertarians mostly—who feel like the government is a threat,” said Graham. “[That] those who try to defend us are a bigger threat than those who are trying to attack us.”

How do you root them out? “When you catch ’em, you put ’em in jail.” Well, why hadn’t Snowden been spooked by the lengthy jailing and delayed trial of WikiLeak-er Bradley Manning? “He hasn’t been sentenced yet. If Bradley Manning gets sentenced in a serious way, it might make somebody like Edward Snowden act differently. Deterrence works. If somebody finally goes to jail for destroying our national security and weakening our defenses, maybe the next guy will think twice.”

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For Graham, stopping leaks could be a matter of stopping “the next guy” who leaks. For the rest of Snowden’s critics, that makes a heap of sense. Snowden, like Manning, is easy to classify as an oddball who developed an unhealthy distrust for his government. Manning partied with hackers; Snowden donated to Ron Paul. Manning impressed nobody as a soldier; Snowden didn’t even complete his service.

“I’m just stunned that an individual who did not even have a high school diploma, who did not successfully complete his military service, and who is only age 29, had access to some of the most classified information in our government,” said Maine Sen. Susan Collins, a Republican who joined the intelligence committee this year. “It suggests real problems with the vetting process. It’s troubling to me that I’ve heard his salary was something like $200,000—for a high school drop-out who had little maturity.”

As long as the focus stays on Snowden, the story can be controlled. It can end up like every other frenzy about the security state, the over-classification of secrets, the kudzu spread of “top secret clearances.” It can be sidetracked by the silly discussion over whether members of Congress, who have to keep their NSA info downloads to themselves, can “really have a public debate.” It can end up nowhere.

Washington has gotten incredibly good at going nowhere. Snowden’s revelations weren’t on the level of Manning’s. They were shocking because a program similar to existing programs that hadn’t been classified was kept secret, known only to the one-in-200 Americans who have top-level security clearances. The best pocket history of over-classification is probably this 2011 report from the Brennan Center, which paid rare tribute to all the blue-ribbon groups that responded to scandals by recommending a looser approach to secrets.

This has got to be a pattern. You had the 9/11 Commission, which warned that “current security requirements nurture over-classification and excessive compartmentalization of information among agencies.” You had the 1997 Moynihan Commission, and its admonition that the “classification system … is used too often to deny the public an understanding of the policymaking.” The Brennan team vroomed the DeLorean all the way back to 1956, when a Defense Department committee warned of how “over-classification has reached serious proportions.”

This was five years before the president was born in Hawaii. That president has combined some facile moves toward declassification—a few executive orders, mostly—with a highly secretive security strategy.

“Let’s take the drone program,” said Connecticut Sen. Chris Murphy, a Democrat who won his first congressional race after being hit for opposing the NSA’s last round of wiretapping. “I’m very supportive of reports that the administration is going to move the Pakistani drone program away from the CIA into the Department of Defense, where less information will be classified and more public debate can occur. The administration shouldn’t have as much trepidation as they do about having a more open debate.”

Helpfully, on Tuesday, a group of mostly Democratic senators introduced a bill that could declassify some documents. Led by Oregon’s Sen. Jeff Merkley and Utah’s Sen. Mike Lee, they’ve resurrected an 2012 amendment to the Foreign Intelligence Surveillance Act that would declassify “significant” opinions by FISA courts.

One problem: The old amendment only got 37 votes. “What’s different now is that people are, understandably, really concerned about this thing,” explained Lee. “There has been a pretty public example of why people ought to be concerned about this law that gives the government all this kind of power.”

That might be true. Ohio Sen. Sherrod Brown, who opposed that amendment, said he was still thinking about the new bill. “I opposed the Patriot Act from the beginning,” he said. “I think this illustrates some of the problems. But I need to think this through. We need to look at the number of contractors, how much of this is contracted, how many people have access to this, why this guy makes $200,000 a year in taxpayer dollars.”

If everyone’s angry about the money Snowden made and the access he got, how do you curtail that? If there are 500,000 private contractors with top clearances, do you slice into their numbers?

“Within the NSA,” said Lindsey Graham, “you could create an internal affairs division like police departments have, where their job is to watch the system … we may want to ask a few people to do more because we don’t want to expand the circle of knowledge.”

Expand it to who, though? Graham, who insists that “the world is a battlefield” and terrorists are on the other side, wondered whether there might be some way of predicting who’d go rogue.

“When I was a young captain in the Air Force,” he said, “getting clearance was: ‘Have you ever been a member of the Communist Party?’ Remember those old questions? In the Cold War, they wanted to know if you’ve ever joined the enemy. I don’t remember being asked if you’ve ever been a member of al-Qaida or the Taliban, and I don’t know if we want to do that, but when it comes to limiting the amount of people that have access to these programs we need to think long and hard about the need to know, and keep it as small as possible. One thing we’ve learned from this is that we’ve gotten sloppy.”

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