Innovating in a Secret World by Tina P. Srivastava

Author:Tina P. Srivastava
Language: eng
Format: epub
Tags: POL030000 Political Science / American Government / National, POL012000 Political Science / Security (national & International), TEC066000 Technology & Engineering / Research
Publisher: Potomac Books

Overcoming the Challenge

Untangling secrecy and national security to achieve innovation that enhances national security in the long run is a complex challenge. It requires enduring policies that can be carried out fully without their implementation being repeatedly examined and “corrected” through the interference of a wide array of government agencies. Yet such a procedure is simply not possible when policy is made through a series of executive orders that are reversed, one after the other, every time a new president enters the Oval Office.

The legislative and judicial branches can help break the logjam and provide guidance and oversight to ensure consistency. While the willingness of these branches to do so may be unclear when it comes to security classification specifically, they have shown a willingness to act in a related area of the law: disclosure of information. The passage and ongoing refinement of the Freedom of Information Act (FOIA),51 enacted by Congress in 1966, is an instructive story.

The intent of FOIA was to allow the disclosure of information whenever possible. FOIA initially required disclosure unless it was specifically disallowed by another statute.52 The Supreme Court later imposed restrictions on this broad disclosure, interpreting the law as having “a congressional intent to allow statutes which permitted the withholding of confidential information, and which were enacted prior to the FOIA, to remain unaffected by the disclosure mandate of the FOIA.”53 The court allowed the Federal Aviation Administration (FAA) to delegate “almost unlimited discretion to agency officials to withhold specific documents in the ‘interest of the public.’”54

Congress responded by clarifying FOIA’s intent. As the U.S. Department of Justice explains, “Fearing that [the Supreme Court’s] interpretation could allow agencies to evade the FOIA’s disclosure intent, Congress in effect overruled the Supreme Court’s decision by amending Exemption 3 in 1976.”55

What of the executive branch? The current pattern of executive orders is inconsistent and has serious limitations for addressing a complex issue that requires consistent, sustained, and directed action. The objectives behind executive orders on classification appear to be primarily concerned with transparency. They lack any explicit consideration of enhancing innovation in areas of importance to national security. Such specific consideration could help support other initiatives to reduce secrecy to the extent possible to enable that innovation. In the end all three branches of government need to work together if we are to realize the objective of less unnecessary secrecy in the interest of open innovation and national security.

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