Current government secrecy policy is a legacy of the Cold War now made obsolete by information technology, charges the American Civil Liberties Union in a July paper.

In an era of open information and instantaneous dissemination, the classification system provides "only a false sense of security that burdens our national security workforce with high costs and inefficiencies," the paper says, calling for Congress to also pass legislation that would make sweeping changes to the secrecy regime.

Among the paper's recommendations is for Congress to use its power of the purse to de-fund any program the president refuses to let Congress examine. A statute should allow courts to examine evidence which the executive branch says is covered by the state secrets exemption from disclosure and "make their own assessments of whether disclosure of the information would reasonably pose a significant risk to national security," the paper says.   

The ACLU also recommends a shortening of the current 10 to 25 years classification period (which can be extended to be much longer) to 3 to 10 years. A shorter classification time would likely decrease the number of classified documents, the ACLU says, since if officials with classification power know their work will be reviewed by others while they still likely work for the federal government, "rather than long after they retire, they will likely take more care."

The watchdog also calls for a definition of the word "methods," since the phrase "intelligence sources and methods" has been used as a justification for over-classification.

The Supreme Court defined a "source" in the 1985 case CIA v. SIMS as someone who "provides, or is engaged to provide, information the [Central Intelligence] Agency needs to fulfill its statutory obligation." A "method" should be only those activities likewise necessary to an agency's statutory mission, the ACLU says--but it should merit classification only if "the method can reasonably be expected to harm national security and is not already publicly known."

Obama administration promises for a new era of open government have yielded only mixed results, the ACLU says. The executive branch continues to assert state secrets privileges "every bit as broad as those made under the Bush administration" and has stepped up prosecution of leakers "with more vigor and legal creativity" than previous administrations.

A 2009 executive order meant to decrease the amount of classified information has been diluted and some agencies, including the Defense Department, have yet to implement some of its key provisions, the paper says.

"Fixing our government's secrecy problem requires sweeping reform and cannot be the responsibility of the President alone," it adds.

For more:
- download the ACLU paper, "Drastic Measures Required: Congress Needs To Overhaul U.S. Secrecy Laws And Increase Oversight Of The Secret Security Establishment (.pdf)

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