The Boy Who Cried “National Security”: The Need for Greater Skepticism About Government Secrecy
posted by Daniel Solove
I just blogged about an incident where the 2nd Circuit sought to have Howard Bashman remove an unredacted judicial decision from his site and replace it with a redacted version. Apparently, the redacted version attempted to remove information about a rather dicey interrogation technique the FBI used. According to Tony Mauro of the Legal Times:
Based on a comparison of Bashman’s original posting of the opinion and the redacted version that the 2nd Circuit posted today, the Court acted to keep from view details of the FBI interrogation, in which agents allegedly threatened to turn Higazy’s family in Egypt over to Egypt’s security service, which could use torture and “give his family hell.”
Is such a redaction appropriate? What is the national security benefit of keeping this information secret?
Claims of secrecy in the name of national security must really be put under rigorous scrutiny. Far too often, courts and others defer to the government’s contention that certain information must be kept secret or else a security nightmare will ensue. In many cases, however, claims of secrecy are really attempts by government officials to cover their asses or conceal their misdoings. Recall the Pentagon Papers? The government made lavish claims that national security would be imperiled. Attorney General John Mitchell declared that disclosing the papers would “cause irreparable injury to the defense interests of the United States.” And what did the papers turn out to be? Evidence that the government misled the public about how the US became involved in Vietnam.
Given the current state of the law, there’s little incentive for the government not to cry “national security” to conceal ugly information. At worst, the courts or journalists or others just refuse the government’s request. But often, they capitulate. They will frequently defer to the government’s claims. So why not try? What’s there to lose? There needs to be some mechanism to punish unnecessary claims of “national security” to conceal information that shouldn’t be concealed. And there should be much more skepticism in evaluating such national security claims. How many times does a boy need to cry wolf before we start at least questioning the veracity of his cries?