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It has been shown to be extremely common behavior in this and the previous administration to shield any and all facts that may be inconvenient to be known to the public, even just out of embarrassment, by invoking national security to keep them confidential. If transparency is truly the goal of this administration, then not only ending this practice but preventing it from being used again is the only viable and honest option.
It has been shown to be extremely common behavior in this and the previous administration to shield any and all facts that may be inconvenient to be known to the public, even just out of embarrassment, by invoking national security to keep them confidential. If transparency is truly the goal of this administration, then not only ending this practice but preventing it from being used again is the only viable and honest option.
Of the many topics this has been used of, the most important are of course the usage of warrantless wiretaps, the hiding of inflammatory pictures of endemic use of torture overseas by American troops, and the complete refusal to give any information on the ACTA treaty, which has extremely wide-reaching ramifications for the freedoms of all citizens involved in it, not simply Americans.
The Constitution Project's Recommendations for reforming the state secrets privilege
The Problem
Since the terrorist attacks of September 11, 2001, the executive branch has repeatedly asserted the state secrets privilege in cases challenging the government's national security policies - for example, the controversial "extraordinary rendition" and warrantless wiretapping programs. The Obama administration has thus-far maintained the Bush administrations position that the common law evidentiary privilege may be used to dismiss cases at the pleadings stage, foreclosing any possibility of litigation in cases involving state secrets. The President should, alone and with Congress, take steps to reform the state secrets privilege to ensure a proper balance between the interest of private parties, constitutional liberties, and national security.
Proposed Solutions: Executive action regarding cases already filed
1.As a result of the review ordered by the president directing the Attorney General to reassess each case in which the previous administration asserted the state secrets privilege, the administration should make a public determination of whether assertion of the privilege can be withdrawn with respect to disclosure of particular pieces of evidence, as well as whether the case can move forward with non-privileged information that is substituted for the privileged information.
2.The president should direct the Attorney General that attorneys representing the United States government shall consent to reinstatement and reconsideration of cases dismissed on the basis of the state secrets privilege if the underlying judgment, order, or proceeding from which party seeks relief was entered within the past six years, and the claim on which the judgment, order or proceeding is based is against the government or arises out of conduct by persons acting in the capacity of a government officer, employee, or agent. The legislation described in recommendation 3 of 3 should include an application provision permitting reinstatement of such cases decided within the past six years. [Note: six years is the statute of limitations period for filing civil actions against the government (28 U.S.C. 2401).]
Specifically, the Constitution Project supports the 21st Century Right to Know recommendations above, and offers the following additional recommendations:
Make the Task Forces Recommendations Public and Seek Public Comment
1.Outside feedback throughout the reform process is necessary to ensure accountability of the CUI regime. The proposed CUI Framework therefore should be published in the Federal Register for public notice and comment before it is adopted in final form.
Require Personal Identifiers to Facilitate Reviews
2.The government should require the use of personal identifiers, so that the individual making CUI markings can be identified from the markings. The government should also require CUI markings to specify the purpose of the marking (which could be a code) and date of the marking. Such markings would facilitate oversight reviews to determine whether markings comply with applicable standards and the presumption of openness, and whether any policy or training modifications are needed
Provide Whistleblower Protection
3.In order to promote the appropriate use of CUI controls, whistleblowers who bring to light government non-compliance with CUI guidelines should be protected from reprisal.
Create Formal Public Procedure to Challenge Identifications
4. Unlike the statutory systems in place for challenging classified information and FOIA for non-sensitive information, there is currently no way to challenge CUI designations or identifications. To prevent CUI from entering a black hole, the government should establish a procedure and precise guidelines for the public to challenge CUI identifications.
21st Century Right to Know Recommendations: Security Secrecy
The federal government is increasingly incorporating state, local, and tribal government agencies into federal counterterrorism, homeland security, and domestic intelligence-gathering programs. As a result, documents and information produced by or for state, local, and tribal governments are increasingly being hidden from public view often in contravention of state open government laws as the federal governments umbrella of secrecy expands over state and local homeland security programs.
The president should require that federal task forces incorporating state and local law enforcement officials should declassify information to the greatest extent possible.
The president should make clear that State, local, and tribal government officials access to federal counterterrorism intelligence should never depend on weakening state or local sunshine laws. Also that state, local, and tribal government operations, including intelligence fusion centers, should be fully accountable to their respective government officials. Appropriate federal agencies should be required to issue new policies confirming these positions.
