Tom Ginsburg on “[Dis-]informing the People’s Discretion: Judicial Deference Under the National Security Exemption of the Freedom of Information Act

Research Matters is a biweekly feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Deputy Dean Tom Ginsburg, the Leo Spitz Professor of International Law, wrote “[Dis-]informing the People’s Discretion: Judicial Deference Under the National Security Exemption of the Freedom of Information Act” with Susan Nevelow Mart, as Associate Professor and Director of the Law Library at the University of Colorado Law School. Their paper will appear in a forthcoming issue of the Administrative Law Review.

Q. Why did you write this paper?
A. My co-author is my mother-in-law. She’s a law librarian, and she’s done some very good work on national security and information. We were talking one night about cases involving national security and the FOIA. We had noticed that when the government invokes the national security exemption of the FOIA, the plaintiff’s cases don’t seem to get anywhere. It’s part of the general trend since 9/11 where as soon as the government waves the national security flag everyone gets quiet. And the “Stone Report,” if I can call it that (the 2013 report from the President’s Review Group on Intelligence and Communications Technologies, which included Professor Geoffrey Stone and was convened in the wake of the Edward Snowden leak), has drawn a lot of attention to this issue in general. Should we just trust the government that it is appropriate any time they invoke national security or, as Geof suggests, should we be ever watchful and suspicious about the application of national security? So we decided to investigate cases and, to our great surprise, they are almost never successful.

Q. They only succeed about 5 to 6 percent of the time, right?
A. Exactly. It’s a very low percent, and some of the cases that didn’t lead to disclosure are ones where the relevant information didn’t really seem to have anything to do with national security.

Q. Why have courts displayed such reluctance when national security is invoked?
A. Judges are people like the rest of us. One of the things we discuss in the paper is something called the “Secrecy Heuristic.” It turns out people are more likely to believe that a document is true if it has been classified as secret. It’s a cognitive thing, and judges may be subject to that, too. They assume that because the government has classified a document, that a.) it actually deserves classification, and b.) it is more likely to be accurate. They also assume that the government’s estimation of the risk involved in disclosing the document is also accurate. That seems problematic. We know judges are human beings and subject to the same biases as the rest of us. But at the same time, we ask them to set aside those biases, and we trust that they are able to do so.

Q. Is the danger of getting it wrong justifiable?
A. When you actually look at some of these cases, they aren’t as high stakes as you might think. These aren’t disclosing NSA files on where Osama bin Laden is. These are often trivial things.

Q. In the paper, you say that the balance between security and transparency is the “most important issue in American governance.” How so?
A. Never before has government had such a capacity to gather information, and never before have we been more secure. Think about the Founding Fathers and the security situation they confronted – they were under attack from three sides. Think about the Cold War. Basically, we’re at a moment in history where our existential security has never been greater. I think the balance could shift in the direction of releasing information to the public without endangering the nation.

Q. So how did we get to a place where we’ve developed this governmental culture of secrecy despite the fact the we have a legal tradition that historically has valued transparency?
A. It’s a long story, but the politics of fear is the simple explanation. We’ve been under some version of an emergency regime since World War II.

Q. Where do we go from here? How do we address both the overclassification and the excessive judicial deference?
A. The overclassification ultimately needs internal government scrutiny to recognize that it’s a problem. It’s hard to get the government to watch itself. So unless you have high-level political pressure on agencies to classify properly, they are going to overclassify. I like the idea of a classification ombudman within agencies, someone who can review internally these decisions. That might create an internal bureaucratic incentive to get it right.