Commentary—

Government Secrecy Puts Us All At Risk

By Nick Schwellenbach     and Peter Brand

America now has an Unofficial Secrets Act.   

In an unprecedented and unwise expansion of government secrecy, the Department of Homeland Security has begun swearing its employees to silence, criminalizing the disclosure of information to the public — even if it is not classified. Such an expansion harms security, rather than improves it, and — this is nothing to sneeze at — strikes at our democracy and constitutional rights.

By forcing employees to sign mundanely titled “nondisclosure agreements,” the Department makes this message clear: “Shut up or you’ll suffer.” If employees violate the agreement, they could lose their jobs and suffer civil or criminal penalties. These gag agreements are one way that excessive government secrecy will be enforced.

What’s an example of information that the public can’t know? The law. Last month, while at the Boise airport, former Congresswoman Helen Chenoweth-Hage (R-ID) was pulled aside for a security pat-down. Hage asked what regulation authorized the screening. Homeland Security personnel refused to tell her.

Local security director Julian Gonzalez said the regulation “is called ‘sensitive security information.’ She’s not allowed to see it, nor is anyone else.”

Steven Aftergood, a secrecy expert at the Federation of American Scientists, calls this development “the arrival of secret law.”

A recent Congressional Research Service report (these reports are themselves not directly accessible by the public) indicates that shrouding statutes in secrecy may be a violation of the 5th Amendment right to due process. If you do not know what a law is, you cannot reasonably defend yourself in court.

Secrecy is an onion. Besides its chilling effect on civil liberties, it has other layers as well. Recently it has been argued, most notably by Colin Powell and the 9/11 Commission, that the Cold War culture of government secrecy has crippled the nation’s ability to fight terrorism. They argue that a healthy level of openness actually leads to better protection because vulnerabilities can be identified, and then fixed.

Take the secretive “No Fly” list — 100,000 names, and little or no oversight of how the list is compiled and maintained — and another case of “Sensitive Security Information” that is kept under wraps. Senator Ted Kennedy (D-MA) is on the list, but as recently as of January this year, Osama bin Laden was not. Thanks to exposure by the press, this omission can be remedied. In sum, a see no evil, hear no evil approach to security can make the United States less safe.

For example, under a scenario we have seen many times before in government, a Homeland Security employee’s warnings may fall on deaf ears inside their agency. They may want to reveal the information to Congress or the media, but be held back by fear of punishment. Silence is the intention of these secrecy oaths. And this silence may have dire consequences.

The Federal Aviation Administration’s (FAA) Red Team once checked airport security through covert tests (now Homeland Security is responsible for airport security). For years, the Red Team had been breaching airport security with alarming ease, at over a 90 percent rate. A team member and others repeatedly warned that a disastrous hijacking was inevitable without a systemic overhaul. Then 9/11 happened.

The hubris of excessive secrecy is that the government always knows best. It stems from a distrust of the public and the belief that the public has no right to know what their government is doing. Under a veil of secrecy, government failings not only go unaddressed, they can fester and worsen. As the late Supreme Court Justice Louis Brandeis said, “Sunshine is the best disinfectant.”

We could use some.

(Nick Schwellenbach is a Fellow and Peter Brand is a Homeland Security investigator at the Project on Government Oversight, a Washington, D.C.-based government-watchdog group that promotes open and accountable government.)