'That's Classified': Shining a Light on Washington's Growing Reliance on Secrecy

The debate over government secrecy can be reduced to a simple formula: the public's right to know versus the government's desire to protect the public. More often, it's far less grandiose and far more nuanced. One of the oldest secrets that the government keeps is a recipe for invisible ink from the First World War, which it has gone to court to protect.

In recent years, the pendulum has swung in favor of keeping information classified, a trend that has accelerated under the Bush administration, a coalition of open-government advocates has found. The annual Secrecy Report Card from OpenTheGovernment.org, issued this week, shows an increase in the amount of secrecy in nearly every category in the past year. Secrecy has also become the subject (and title) of a new documentary out in theaters this month. All this has prompted some in Congress to begin exploring several measures to tackle overclassification.

The trend toward increased government secrecy began well before the Bush administration, but most critics agree that the current White House is one of the most secretive, if not the most secretive, in history. "[The Bush administration] has over its seven and one half years to date exercised unprecedented levels not only of restriction of access to information about federal government's policies and decisions, but also of suppression of discussion of those policies and their underpinnings and sources," the OpenTheGovernment report says. "It continues to refuse to be held accountable to the public through the oversight responsibilities of Congress. We have been made less secure as a result and the open society on which we pride ourselves has been undermined and will take hard work to repair."

The Secrecy Report Card points to numerous instances of increased secrecy, including patents kept hidden from the public, secret court orders, and contracts awarded without public notice. It notes that a rising number of requests for document releases through the Freedom of Information Act are being denied. The public filed almost 22 million requests for information from the government last year, which is up 2 percent from the year before. But only 1 in 3 of these FOIA requests was granted last year, the report says.

Federal agencies have also taken to marking unclassified documents "sensitive" to restrict their distribution to the public. Last year, the government spent almost $200 keeping existing secrets for every dollar it spent on declassification, according to the report.

The increase in government secrecy and its impact are also the subject of a new documentary, Secrecy, released in theaters this month. Directed by a pair of Harvard University professors, Peter Galison and Robb Moss, it explores the inherent contradictions in keeping information secret in an open society and the legacy of a legal case, United States v. Reynolds, that helped put into law the government's authority to keep secrets. While the film's structure leans heavily on an anecdote—about how press reporting on Osama bin Laden's satellite phone forced the terrorist leader underground—that has been largely debunked as an urban legend, it still offers a compelling narrative to understand the debate over secrecy that continues between the public and policymakers.

Congress, for its part, has taken steps recently to address issues of overclassification and government secrecy writ large. A pair of bills, which may come up for a vote as early as this month, are designed to track who is responsible for classifying certain materials, reward employees for challenging improper classifications, and provide training for employees with classification authority.

A House reform bill, called the Over-Classification Reduction Act, which passed Tuesday, would increase accountability for classification decisions, force more uniform archival standards for information storage, and require audits of classification practices.

The authority of the government to keep secrets has a vague legal history. But the modern legal justification began with an accident. In 1948, a B-29 bomber on a research mission crashed near Waycross, Ga. Nine crew members, including three contractors, were killed. But when the widows took the government to court for compensation, the Air Force refused to release its accident reports, saying that the information was classified. The case moved through the judicial system before finally reaching the Supreme Court in 1953, where the justices—without reviewing the classified information in question—upheld the government's right to withhold information deemed to be "military secrets."

Yet when the records of the B-29 crash were declassified in 2000, they contained no secret information but rather a record of negligent maintenance that very likely contributed to the crash. And it is the court precedent set by the B-29 crash case, called United States v. Reynolds, that has been used to justify many of the recent cases concerning the treatment and legal standing of terrorism suspects on issues ranging from torture to extraordinary rendition and electronic surveillance.

An additional pair of bills making their way through the House and Senate, meanwhile, address the state secrets issue first raised in Reynolds. The State Secrets Protection Act would provide new guidance to federal courts to use when considering cases in which the federal government invokes the state secrets privilege in civil cases. It aims to give courts the power to separate information that is and should remain secret while making public information that is not.