One could argue that the United States is not a democracy in which personal privacy enjoys broad protection and the government largely functions in the open. Quite the opposite. Increasingly, private individuals and organizations are subject to unprecedented surveillance and invasions of privacy, while the government is able to operate behind a heavy cloak of secrecy, protected by a thicket of laws, regulations, court rulings, policies, and norms that undermine and criminalize efforts to expose official wrongdoing, illegality, mendacity and corruption.
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The Pentagon Papers decision left in place these and other troubling questions, which the Court has not answered to this day. To address those critical questions, Lee Bollinger, President of Columbia University, and Geoffrey Stone, Professor of Law at the University of Chicago, have gathered a wide array of essays from two dozen leading thinkers in their intriguing new book National Security, Leaks, and Freedom of the Press: The Pentagon Papers Fifty Years On. This comprehensive volume sets out to explore “one of the most vexing and perennial questions facing any democracy,” namely, “how to balance the government’s legitimate need to conduct its operations — especially those related to protecting national security — with the public’s right and responsibility to know what its government is doing.”
At a 2016 hearing before the House Committee on Oversight and Government Reform, Chairperson Jason Chaffetz (R. Utah) noted that 50 to 90 percent of classified material is not correctly designated. Nearly a decade earlier, former US diplomat George Kennan likewise observed that “upwards of 95%” of information about foreign governments is available from open sources but nevertheless is classified by the US government. In their essay in National Security, Leaks, and Freedom of the Press, Keith B. Alexander, former Director of the National Security Agency, and Jamil N. Jaffer, Founder and Executive Director of the National Security Institute and Professor at the Antonin Scalia Law School at George Mason University, concede that 50 to 90 percent of classified information is “mislabeled” and that “much information could be declassified with fairly limited, if any, harm to national security.”
As Avril Haines, former White House Deputy National Security Advisor, writes, due to over-classification and excessive secrecy, our current Supreme Court framework “bizarrely” depends “on government employees, contractors, or others to break the law and, where relevant, the terms they have agreed to in the course of their employment, in order to disclose information that many of the Justices indicated was precisely what the Founders would have wanted to see published under the First Amendment—information exposing controversial government action essential for the public to know in order to hold the government accountable, as our political system envisions.”
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