RECAP: “The Culture of National Security Secrets in Modern America,” Colloquium w/ East Anglia Prof. Kaeten Mistry

That some state secrets must exist—think nuclear codes—is a given. Still, the very nature of state secrecy challenges core democratic principles regarding freedom of speech, free society, and open and transparent government. As East Anglia University Associate Professor of American History Kaeten Mistry explored in his October 14 talk at the Kinder Institute, justly and reasonably balancing liberty and security in a democracy is something that, throughout the long 20th century, the U.S. has progressively let fall more and more by the wayside. This raises a host of questions. Where did today’s all-consuming system of state secrecy come from? How did a nation that long prized openness morph into a behemoth organized secrecy regime, with billions of classified documents, hodgepodge rules, and a lavishly funded national security infrastructure? And most fundamentally, what is a state secret in the first place? Determining how we got into this peculiar situation, Prof. Mistry showed, requires returning to origins and working forward from there.

The story begins in the late 19th century, with the U.S. establishing new spaces of imperial control (e.g., the Philippines) and, in the process, simultaneously realizing a need to more assertively secure the government information held in these outposts and a lack of constitutional guidance for doing so. The Defense Secrets Act of 1911—much of the language of which was re-purposed in the 1917 Espionage Act—marked the first legislative attempt to square this circle. The Act criminalized the disclosure of government secrets, though not their publication in the press, but it left a crucial issue wholly unresolved: what are we talking about when we talk about state secrets?

This issue of what a state secret actually is somehow became clearer and murkier in an historical turn that Prof. Mistry referred to as “The House that Harry and Ike Built.” As the dawn of the Cold War brought widespread paranoia regarding Soviet espionage, both Truman and Eisenhower utilized Executive Order (as opposed to legislation) to fashion a tiered classification system—confidential, secret, top secret—as a way to give definition to what qualifies as a state secret (anything so classified) and who deems information secret-worthy (presidents and the executive agencies under their purview). Three responses followed almost immediately in the wake of these Orders: lament surrounding where we draw the line in terms of what is and isn’t classified or classifiable; a related trend, still ongoing, of intense over-classification; and perhaps most importantly, the public exposure of classified information from within the national security state.

If the more contemporary history of state secrecy effectively emerges out of these acts of exposure, Daniel Ellsberg’s disclosure of the Pentagon Papers—and the ultimate dismissal of all charges brought against him under the Espionage Act—marks the most important moment on this timeline. For one, the media won a massive victory via the failed prosecution of Ellsberg, with courts determining that the Espionage Act couldn’t impinge on press freedom. Additionally, the unprecedented insight into the innerworkings of the national security state generated by Ellsberg’s revelations had a two-pronged impact. It spurred calls for greater transparency that resulted in Sunshine Laws and the Freedom of Information Act (among other levers of accountability). At the same time, though, the exemption of national security information from these new regulations led to greater executive authority and prerogative, new rules and stiffer penalties for whistleblowers, and, with this, the outlines of the proactive vs. reactive national security regime that we see today.

Take the example of CIA special assistant-turned-novelist Victor Marchetti, whose representation of a fictional national security agency in The Rope-Dancer landed him under Nixon-ordered surveillance. Subsequent news of Marchetti’s nonfiction work-in-progress on his experience in government broke the camel’s back, with the CIA demanding that he submit drafts of his memoir to the agency before publication and the courts supporting the agency’s power to censor. Marchetti’s plight was indicative of the larger “innovation” of requiring all CIA officials—and eventually anyone within the Executive Branch who came into contact with classified information—to sign NDA-style contracts tied to the Espionage Act that used bureaucratic bobbing and weaving, along with the looming threat of jail sentences, to quash any impulse to hold the government accountable on any matter, big or small.

One would think, as former Senator Patrick Moynihan did, that the end of the Cold War presented an opportunity to usher in a new age of transparency and an end to overregulation of information. Yet his proposal for moderate changes to the state-sanctioned relationship between security and secrecy—he lobbied for life cycles for state secrets, for example, and new statues that would marginally raise the bar on what can be classified—went more or less unheeded within the Beltway. Outside the Beltway, however, is a different story. The lack of movement to curb a secrecy regime increasingly defined by ad hoc improvisation and a curious definition of what constitutes public interest spawned a new generation of journalists, activists, and whistleblowers, including Edward Snowden and the answer to today’s trivia question: Reality Winner, the only member of the foursome that began the talk who was sentenced for the mishandling of classified information.