[net-gold] Secrecy News -- 05/20/10
- From: "David P. Dillard" <jwne@xxxxxxxxxx>
- To: Net-Gold <Net-Gold@xxxxxxxxxxxxxxx>, Temple University Net-Gold Archive <net-gold@xxxxxxxxxxxxxxxxxxx>, Temple Gold Discussion Group <TEMPLE-GOLD@xxxxxxxxxxxxxxxxxxx>, Net-Gold <net-gold@xxxxxxxxxxxxxxxx>, Sean Grigsby <myarchives1@xxxxxxxxxxxxxxx>, Educator Gold <Educator-Gold@xxxxxxxxxxxxxxx>, Educator Gold <Educator-Gold@xxxxxxxxxxxxxxxx>, K12AdminLIFE <K12AdminLIFE@xxxxxxxxxxxxxxx>, Net-Platinum <net-platinum@xxxxxxxxxxxxxxx>, NetGold <netgold@xxxxxxxxxxxxxxx>, "Net-Gold @ Nabble" <ml-node+3172864-337556105@xxxxxxxxxxxxx>, K-12ADMINLIFE <K12ADMIN@xxxxxxxxxxxxxxxxxxx>, net-gold@xxxxxxxxxxxxx, MediaMentor <mediamentor@xxxxxxxxxxxxxxx>, Digital Divide Diversity MLS <mls-digitaldivide@xxxxxxxxxxxxxxx>
- Date: Thu, 20 May 2010 23:28:37 -0400 (EDT)
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Date: Thu, 20 May 2010 09:09:12 -0400
From: Steven Aftergood <saftergood@xxxxxxx>
To: Steven Aftergood <saftergood@xxxxxxx>
Subject: Secrecy News -- 05/20/10 (alt list)
SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2010, Issue No. 41
May 20, 2010
Secrecy News Blog:
http://www.fas.org/blog/secrecy/
** DOES CANDOR REQUIRE SECRECY? A CRITICAL REVIEW
** NECESSARY SECRETS: PANEL DISCUSSION
** JASON: BASIC RESEARCH AT THE PENTAGON IS "BROKEN"
DOES CANDOR REQUIRE SECRECY? A CRITICAL REVIEW
When the Supreme Court ordered the Nixon White House to comply with a
subpoena for the Watergate tapes in the 1974 case of United States v. Nixon,
it also endorsed the general proposition that secrecy is essential to
presidential deliberations since it permits greater candor and therefore
promotes a superior policy outcome. "A President and those who assist him
must be free to explore alternatives in the process of shaping policies and
making decisions and to do so in a way many would be unwilling to express
except privately," the Court said.
The premise that candor is incompatible with disclosure has become a
cornerstone of the edifice of government secrecy, and an axiom of freedom of
information policy, which provides an exemption for deliberative records.
Yet it is mistaken, according to an iconoclastic new law review paper, and
should be corrected.
It seems intuitively obvious that private discussions lend themselves to
greater candor than do public ones. In private, anyone might be more
willing to reveal ignorance or uncertainty, to express personal emotion, or
to consider risky or improbable alternatives.
But this is "a highly contestable view of human nature," write Eric Lane,
Frederick A.O. Schwarz, Jr., and Emily Berman, and it has little empirical
basis. What's worse, they say, is that the equation of candor and
confidentiality fails to take into account the corrosive effects of secrecy.
In practice, according to the authors, secrecy may actually discourage
candor. "When policy deliberations are deemed likely to remain secret,
dissenters from the majority view might be more reluctant to give voice to
their concerns.... And decision makers themselves might feel freer to
silence dissenters when they do not expect their decision-making processes
to be subject to scrutiny." This was often reportedly the case during the
George W. Bush Administration when, according to multiple accounts cited in
the paper, presidential advisors declined to question or to challenge
confidential policy judgments.
Furthermore, secrecy is not necessary for candor. Congress rarely invokes
secrecy in its deliberations, though it is constitutionally authorized to do
so. As is demonstrated in many political contexts, it is perfectly possible
for policy discussions to be both open and candid, with no detrimental
effect. (Under San Francisco's unusually bold 1999 Sunshine Ordinance,
observed Joseph Lorenzo Hall of UC Berkeley, deliberative material is
entirely subject to disclosure.)
Finally, the authors write, candor itself does not necessarily promote good
decision making. "While candor may have allowed the president to explore
the possibility of engaging the CIA to interfere with an FBI investigation,
surely such candor should not be encouraged by the promise of secrecy.... In
many of the contexts in which candor is used as a justification for secrecy,
the candor that is being shielded is candor that disserves the public
interest."
The authors emphasize that they do not categorically oppose confidential
deliberations nor do they advocate that every official meeting be broadcast
on live television. Rather, they argue that the presumption of deliberative
secrecy adopted by the "Nixon" Court is unjustified by principle or
practice, and that it should be replaced by a general presumption of
openness, especially with respect to congressional requests for access to
executive branch records.
"The presumption established by the 'Nixon' Court endorsed and furthered a
particular perception of the nature of government decision making -- that it
is a process whose details should remain hidden behind a veil of secrecy....
It gives presidents and their advisors reason to believe that secrecy is
standard operating procedure."
"Dismantling the 'Nixon' canon -- as this Article advocates -- would instead
foster a culture where the expectations were reversed, where ideas about
what is appropriate for public discussion are expanded, and where secrecy
must be justified by a risk of significant harm -- not harm to the political
prospects of the incumbent officials, but to the interests of the nation as
a whole."
See "Too Big a Canon in the President's Arsenal: Another Look at United
States v. Nixon" by Eric Lane, Frederick A.O. Schwarz, Jr., and Emily
Berman, George Mason Law Review, volume 17, no. 3, Spring 2010:
http://www.georgemasonlawreview.org/doc/17-3_Berman.pdf
NECESSARY SECRETS: PANEL DISCUSSION
The Hudson Institute will host a discussion of the new book "Necessary
Secrets: National Security, the Media, and the Rule of Law" by Gabriel
Schoenfeld on Tuesday, May 25. The book is a provocative account of the
history and significance of "leaks" of classified information to the news
media. The author laments the growing number and impact of such leaks, and
generally favors more vigorous enforcement of laws against them. The May 25
discussion will feature Mr. Schoenfeld, Benjamin Wittes of the Brookings
Institution, and myself. There will be a keynote address by former CIA
director Gen. Michael Hayden.
http://www.hudson.org/index.cfm?fuseaction=hudson_upcoming_events&id=773
JASON: BASIC RESEARCH AT THE PENTAGON IS "BROKEN"
Basic scientific research sponsored by the Department of Defense has
suffered a precipitous decline in recent years, according to a newly
disclosed 2009 report from the JASON defense advisory panel.
"Basic research" refers to the investigation of fundamental phenomena, and
contrasts with "applied research" that aims to meet a specific mission
requirement or to solve a specified problem.
"Over the past decade, there has been an exodus of scientific and technical
expertise from the U.S. government and, in particular, from the DoD [basic]
research enterprise," the JASONs said.
"Gone are many of the technically literate program officers who plied the
streets of the scientific community to find those remarkable people who
could help shape the future. Gone too are many of the scientists and
engineers in the academic community [who were supported by DoD basic
research contracts] and who contributed to revolutionary advances that
changed the landscape of modern war fighting. And most importantly, lost is
the opportunity to develop the next generation of scientific talent who
would otherwise have been trained and capable of carrying the research
enterprise forward."
"Despite the importance of DoD Basic Research, we believe that important
aspects of the DoD basic research programs are 'broken' to an extent that
neither throwing more money at these problems nor simple changes in
procedures and definitions will fix them," the report said.
The JASONs nevertheless offer a series of recommendations concerning program
organization and personnel recruitment to strengthen basic research. Among
other things, they say that DoD should reject the "peer review" model for
evaluating funding decisions, since that tends to reinforce the status quo,
and should instead provide funding to exceptional individuals. They
favorably cite Nobel laureate Luis Alvarez saying: "In my considered opinion
the peer review system, in which proposals rather than proposers are
reviewed, is the greatest disaster to be visited upon the scientific
community this century...."
The JASON report was originally marked "for official use only." When the
Federation of American Scientists requested it last year under the Freedom
of Information Act, most of the document was withheld as "deliberative." But
upon appeal, DoD agreed this month to release the entire report. To
accompany the release, Alan R. Shaffer, Director of Defense Research and
Engineering, issued a cover memorandum stating that the JASON report was
"one perspective" among several and that it was not based on a comprehensive
data set.
See "S & T for National Security," JASON Summer Study, completed May 2009,
released May 2010:
http://www.fas.org/irp/agency/dod/jason/sandt-full.pdf
_______________________________________________
Secrecy News is written by Steven Aftergood and published by the Federation
of American Scientists.
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http://www.fas.org/blog/secrecy/
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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood@xxxxxxx
voice: (202) 454-4691
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