Information Is Power

Balancing the equally important but sometimes conflicting priorities of government transparency for public accountability versus government secrecy for national security seems intractable. One possibility is to recognize a constitutional right of access to government information. This would support democratic self-governance, allow the public to engage in meaningful oversight, and provide access to necessary information without the game of leaks. It could radically refocus arguments regarding the rights of government employees to reveal national security information and of third parties to publish it. Recognizing this right faces an uphill battle against decades of First Amendment jurisprudence. It also faces innumerable logistical and practical obstacles. It would not eliminate the need to determine when the public, the press, and government insiders can disclose national security information. Nevertheless, the ongoing collapse of press access norms and government’s increasing desire to operate outside public view may warrant dramatically rethinking First Amendment scope and protections.

The Long (Futile?) Fight for a Federal Shield Law

The Pentagon Papers case leaves open the question of whether journalists can be compelled to disclose the identities of those who reveal classified information to them. This essay considers some of the most enduring arguments for and against a federal shield law. Those who argue against such a law note definitional problems and contend that we must punish leaks given their impact on national security. They argue that institutionalizing the press actually harms the press and that the shield law is unnecessary given current use of technology to identify sources of leaks. Those in favor counter that definitional questions should not be a problem because almost all states have been able to resolve the questions in their laws. Moreover, most leaks do not compromise national security; government secrecy, deceit, and incompetence cause more damage to national security than the press’s reporting of secret information; and without a federal shield law, sources will not provide important information about government misconduct.

Science in the Age of Invincible Surmise

The Michigan Memorial–Phoenix Project at the University of Michigan was an unusual specimen of the post–World War II nuclear research initiative. Its origins were modest; it sprang from a student-led effort to construct a living war memorial—a mission it maintained even as it grew into a peaceful-atom program. Rather than taking advantage of the copious government support for scientific research available after World War II, it drew funds from Michigan alumni and from industry, based on the conviction that these routes offered greater possibility of academic freedom. And its architects conceived of nuclear research unusually broadly, including not just the physical sciences and engineering, but also the biological, social, and human sciences, law, education, medicine, and other areas. These ways in which the Phoenix Project was exceptional nevertheless tell us much about how it was exemplary. The optimism that animated the project contrasts with widespread and well-documented currents of nuclear fear, but indicates a stable vein of nuclear optimism in the early post–World War II era. The suspicion of government secrecy regimes harbored by its founders led them to pursue unorthodox patronage relationships for a nuclear research initiative, which nevertheless reveals the flexibility of the contemporary funding context. And the project’s unusually broad notion of nuclear research indicates the local flexibility of nuclearity in the late 1940s and early 1950s. This paper is part of a special issue entitled “Revealing the Michigan Memorial–Phoenix Project.”

Private Eyes in the Sky: Emerging Technology and the Political Consequences of Eroding Government Secrecy

How do emerging technologies that erode governments’ near-monopolies on intelligence information affect public support for leaders and their foreign policies? Technologies—like imagery satellites—that were once the domain of state governments are now increasingly available to commercial and private actors. As a result, non-government entities can now exercise the disclosure decision, publicly divulging information whose release was once controlled by states. We argue that non-government entities with access to these technologies serve as alternative information sources that can verify government claims or reveal activities governments have not previously acknowledged. Using original survey experiments we find that commercial satellite imagery can serve as an informational cue that shifts public opinion, and, depending on its content, either attenuates or bolsters the effect of similar cues from government sources. The findings advance debates over secrecy in international relations and on the effect of emerging technologies in the security domain.

Visible Policing: Technology, Transparency, and Democratic Control

Law enforcement has an opacity problem. Police use sophisticated technologies to monitor individuals, surveil communities, and predict behaviors in increasingly intrusive ways. But legal institutions have struggled to understand—let alone set limits on—new investigative methods and techniques, for two major reasons. New technologies of surveillance, often procured from or otherwise reliant on the private sector, tend to operate in opaque and unaccountable ways, augmenting police power while remaining free of meaningful oversight. At the same time, shifts in Fourth Amendment doctrine have expanded law enforcement’s ability to engage in surveillance free of oversight or scrutiny by courts or by the public. The result is that modern policing is not highly visible to oversight institutions, and is becoming even less so.In light of these informational dynamics, transparency litigation has become a core technique for rendering obscure investigative practices visible and holding police accountable. These new lawsuits form a criminal procedure “shadow docket”—they resolve important questions about democratic governance of policing without deciding on the constitutionality of searches and seizures. This Article builds on the government secrecy literature to explore the significance of this “shadow docket” and the relationship between transparency obligations and constitutional limits on police action. In the absence of meaningful Fourth Amendment safeguards, the Article shows, transparency makes policing practices increasingly visible to the public and to democratic institutions in areas in which constitutional criminal procedure today has minimal reach. These efforts to make policing visible bear important lessons for advocates and scholars of criminal procedure, criminal justice reform, and transparency itself.

Government Secrecy and Security Classifications in the Context of Integrity Management in Malaysia

Secrecy in government is almost always perceived as being antithetical to accountability and transparency in the conduct of democratic government. However, it is undisputable that government secrecy is practiced the world over because it is indispensable to state security, international relations, public and personal interests. Hence, democratic governments must perform a delicate balancing act between openness and confidentiality in the handling of official information. Indeed, effective governance requires various legal regimes that control government information through security classifications and impose punishments on offenders. This paper aims to address the dearth of research on government secrecy and security classifications in the context of integrity management in Malaysia. Integrity management encompasses not only the exercise of moral values by public institutions and officials but also the integrity of processes and procedures that uphold the integrity of governance. This exploratory research uses qualitative content analysis of data gathered from official government publications and websites, relevant documents and course notes, as well as interviews and correspondence with field experts. The inferences derived from themes and categories generated have resulted in several important findings. First, the 1972 Official Secrets Act (OSA) plays a significant role as part of a plethora of statutes and ethical codes that are indispensable to upholding government integrity. Second, weaknesses in balancing between openness and confidentiality when handling official information are attributed to organizational failure, public officials’ lack of ethical values, comprehension and training. The challenge is to ensure that the OSA is not used for cover-ups of corruption, ethical misconducts and administrative transgressions while the proposed Freedom of Information Act does not lead to a culture of blaming and mistrust that could lead to the paralysis of government and governance.

Whistleblowing or leaking? Public opinion toward Assange, Manning, and Snowden

The release of classified documents through outlets like WikiLeaks has transformed American politics by shedding light on the innerworkings of governments, parties, and corporations. The high-profile criminal cases associated with such releases – those of Julian Assange, Chelsea Manning, and Edward Snowden – have highlighted important questions about journalism, government secrecy, and the public’s “right to know.” Scholars have focused on the journalistic and legalistic implications but have yet to explore how the public views those who release classified materials, and what factors affect those views. Using data from the 2018 Cooperative Congressional Election Study, we provide results from three embedded experiments testing the effects of two forms of framing on favorability ratings toward Assange, Manning, and Snowden. The first frame addresses partisanship (i.e., which party is injured by the release) and the second addresses how the action is framed (i.e., did the person “leak” or “blow the whistle”). The data show that both the party and leaking/whistleblowing frames significantly affect favorability in expected ways. The release of classified materials comes with both costs and benefits, but public opinion appears to be more sensitive to its implications for partisan competition.