Is the ODNI Approach to Secrecy and Transparency Evolving?

We flagged this yesterday afternoon on Just Security’s Twitter account, but nevertheless, it is helpful to include a reference here on the pages of the blog as well.  Yesterday, on Secrecy News, Steven Aftergood had an interesting piece discussing the apparent evolving approach the ODNI is taking with respect to secrecy and openness within the intelligence community.  Aftergood’s post appears to have been spurred by remarks Robert Litt (ODNI General Counsel) made on Tuesday at an event at American University Washington College of Law, at which Litt said “[the Snowden] leaks have forced the Intelligence Community to rethink our approach to transparency and secrecy.”

As Aftergood points out, Litt went on to say:

“We have had to reassess how we strike the balance between the need to keep secret the sensitive sources, methods and targets of our intelligence activities, and the goal of transparency with the American people about the rules and policies governing those activities.”

“One lesson that I have drawn from the recent events… is that we would likely have suffered less damage from the leaks had we been more forthcoming about some of our activities, and particularly about the policies and decisions behind those activities,” Mr. Litt said. (Director of National Intelligence James Clapper made the same point to Eli Lake of the Daily Beast last month.)

“Going forward, I believe that the Intelligence Community is going to need to be much more forward-leaning in what we tell the American people about what we do,” Mr. Litt said. “We need to scrutinize more closely what truly needs to be classified in order to protect what needs to be protected. And we need to move beyond the mindset of merely reacting to formal requests that we make information public, to a mindset of proactively making available as much information as we can, consistent with the need to protect sources and methods.”

“Greater disclosure to the public is necessary to restore the American people’s trust that intelligence activities are not only lawful and important to protecting our national security, but that they are appropriate and proportional in light of the privacy interests at stake. In the long run, our ability to protect the public requires that we have the public’s support,” Mr. Litt said.

As Aftergood’s post points out, we’ve heard others in the intelligence community recently express the notion that had the government been more forthright about its intelligence activities, the public backlash to the programs would have been less severe.  I think it’s a question open for debate whether the public and Congress would have been more open to certain programs had they only known about them or whether the programs still would have been limited (at least in some respects), although my intuition is the latter.  That question aside, it’s important to note, as Aftergood has, the evolution taking place within the intelligence community with respect to secrecy and transparency.

The remainder of Aftergood’s post is highly recommended, wherein he provides insightful analysis on this changing approach to secrecy — a move towards greater transparency that he calls “instrumental, not principled”:

While Mr. Litt’s remarks conveyed an overall message of beneficence, responsiveness, and good citizenship, they also had some peculiar features.

It is disconcerting to realize that the reassessment of classification policy described by Mr. Litt was not prompted by the diligent exercise of congressional oversight or by judicial review or by ordinary advocacy. Rather it was explicitly inspired by the Snowden leaks, which Mr. Litt described as “criminal.” The upshot is that leaks emerge as a uniquely powerful tool for shaping intelligence classification policy, while conventional checks and balances appear all but irrelevant by comparison.

Moreover, the purpose of the newfound push for greater transparency seems to be instrumental, not principled. In other words, it is driven by tactical considerations, not by statutory requirements or any other objective norm.

“I strongly believe that the best way to prevent the damage that leakers can cause is by increased transparency on our part,” Mr. Litt said. “Transparency can both lessen the incentive for disaffected employees to disclose our activities improperly, and provide the public appropriate context to evaluate leaks when they occur.”

That implies that what is needed is only as much transparency as it takes to achieve these imprecise and transient goals. It is a unilateral move that can be unilaterally reversed.

The entire post is definitely a worthwhile read. 

About the Author(s)

Thomas Earnest

Former Managing Editor of Just Security (2013-14) Follow him on Twitter (@thomasdearnest).