An editorial in yesterday’s New York Times criticized the current administration’s attempts to reclassify decades old information, such as the number of missiles and bombers in the United States’ arsenal during the Nixon era. The editorial notes that this administration seems to have taken classification to new and frivolous levels, and cites the National Security Archive’s postings on “dubious secrets”, which lists dozens of cases in which the government classified information that no reasonable person would find worthy of secrecy. (My favorite example is the decision by a 1999 CIA reviewer to classify a Ford-era CIA memo discussing plans to sabotage the “annual courier flight of the Government of the North Pole” by its “Prime Minister and Chief Courier S. Claus”).
Like the classification process, the executive may also have misused the state secrets privilege. (That’s the same privilege that the government is asserting as grounds for dismissal of cases challenging the NSA’s warrantless wiretapping program). That privilege was first formally recognized by the Supreme Court in United States v. Reynolds, where the government asserted the privilege to prevent disclosure of the Air Force’s accident investigation report on the crash of a B-29 aircraft in a tort suit brought by widows of three civilians on board. The government argued that the report contained information about secret Air Force missions, and the Court agreed that the report should be withheld from discovery to protect national security. When the report was finally declassified and publicly disclosed, however, it did not appear to contain any information relevant to national security. (For more details on the Reynolds case, see “Who Will Guard the Guardians? Revisiting the State Secrets Privilege of United States v. Reynolds,” published in Federal Contracts Report, vol. 80, no. 11, September 30, 2003)
These examples make me wonder whether government officials who erroneously classify information should be subject to some type of penalty. Not only do these sorts of misclassifications keep information about the workings of the government from the public, they may also jeopardize national security by making judges skeptical of the executive’s judgment and thus less likely to defer in those cases in which secrecy is actually justified.