The late Supreme Court Justice Byron White once observed that "the label of 'national security' may cover a multitude of sins." Regrettably, the Bush Administration's actions have provided fresh confirmation of the truth of that statement.
The Administration's tendencies toward secrecy were evident from its first days, but the terrible events of September 11, 2001, seemed to energize the Administration to pursue its secrecy agenda with greater vigor in a broad range of areas, all under the banner of national security or its newly named twin brother, "homeland security."
With the Administration's emphasis on national security has come an increased tendency toward restricting of information through national security classification. On March 28, 2003, the President issued his much-anticipated new executive order on national security classification. The order deserves a detailed analysis of its own, but among its most significant features are provisions that make it easier to reclassify documents that were previously declassified and to classify previously unrestricted information. The new executive order will also significantly delay the "automatic" declassification of historical documents that was called for in a prior order issued by President Clinton. And President Bush has expanded the number of government agencies and officials who have classification authority. The result is predictable: The use of national security classification significantly increased in the first two years of the Bush Administration.
Administration secrecy, however, extends far beyond information that can be formally classified even under the permissive terms of the new executive order. Federal agencies, such as the National Archives and the Federal Energy Regulatory Commission, have restricted public access to formerly open materials in their reading rooms and have pulled information from the internet. The White House and the Information Security Oversight Office have encouraged agencies to withhold "sensitive but unclassified" information from FOIA requesters. And the Homeland Security Act, in addition to creating a new federal department, has also given birth to a vaguely defined new category of information that is exempt from release under FOIA: "critical infrastructure information" that is voluntarily submitted by private businesses to the Department of Homeland Security.
The Administration has also invoked national security as the rationale for even more troubling forms of secrecy: Secret detention and deportation of aliens, and indefinite, incommunicado detention of foreign citizens and U.S. citizens alike when the government has concluded—based, of course, on secret evidence—that they are "enemy combatants." While these actions may be unlikely to touch most Americans directly, other actions, such as secret surveillance, may hit closer to home. In particular, the Patriot Act has given the government powers broad new powers to engage in domestic surveillance, including the ability to issue secret subpoenas to libraries and bookstores to check up on the reading habits of citizens—subpoenas whose recipients are forbidden, on pain of criminal punishment, from disclosing their existence to the individuals they target. And increasingly, the issues arising from these powers are decided in secret by courts in sealed proceedings in which only one side—the government—can meaningfully participate.
We remain confident that a vigilant public committed to a government that, in Lincoln's words, is of, by, and for the people will preserve the open public institutions that are critical to democratic self-government. But the Administration's insistence that the demands "national security" must override other values poses a significant threat.