A New Balancing Test

One of the guiding principles in our democratic form of government is the notion of pluralism, first expressed by James Madison in his first and most celebrated essay, Federalist No. 10. Political pluralism permits the peaceful coexistence of different interests, convictions and lifestyles. Unlike totalitarianism or particularism, pluralism acknowledges the diversity of interests and considers it imperative that members of society accommodate their differences by engaging in good-faith negotiation. A pluralistic society does not deal with public policy issues in terms of black and white. In the words of Madison:

Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens….

Thus, inherent in our pluralistic form of government is the notion that the “national interest” is multifaceted. National security is one of those facets, but it is by no means the only.

In dealing with national security issues, it is important to keep in mind that “We the People” entered into the social compact known as the U.S. Constitution for more reasons than to just provide for the “common defence.” As set forth in the Preamble, our society established the Constitution of the United States “in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity….” Providing for the “common defence,” national security in today’s parlance is but one of multiple national interests; it is not even listed first.

Nonetheless, the sophisticated political thinking of our 18^th century founders gave way to the simplistic view of Cold War America in which we had committees of Congress investigating “anti-American activities.” It persisted into the first decade of this century when our foreign policy consisted of little more than “either you are with us or against us.” A number of recent initiatives dealing with information relating to national security continue this crude, binary view of our political society.

Today’s Washington Post has an article on how the Obama administration has given Congress a draft of a proposed shield law, designed to protect journalists from having to disclose their confidential sources, that toughens its position on controversial national security sections. It goes on to state that:

Under the administration's language, a reporter could be compelled to reveal his or her sources if public disclosure of the sources' information "caused or [was] reasonably likely to cause significant and articulable harm to national security" (emphasis added). In such cases, there would not be a "balancing test," in which a judge weighs the importance of the public having the information against the damage it could cause national security. The government would only have to show the judge, probably in a closed session, that the information was protected and "reasonably likely" to cause the damage.

In addition to the above, last week the administration released new standards governing assertions of the state secrets privilege in judicial proceedings. Specifically, the new standards state in part:

The Department will defend an assertion of the state secrets privilege (“privilege”) in litigation when a government department or agency seeking to assert the privilege makes a sufficient showing that assertion of the privilege is necessary to protect information the unauthorized disclosure of which reasonably could be expected to cause significant harm to the national defense of foreign relations (“national security”) (emphasis added) of the United States.

Finally, this week Secrecy News provided access to a recent draft copy of a new executive order governing the classification of national security information. This draft perpetuates the current standard for classification to the effect that:

The original classification authority determines that the unauthorized disclosure of information reasonably could be expected to result in damage to the national security…

Each of these extraordinarily significant initiatives starts off with the same faulty premise; i.e. either information causes damage to national security or it doesn’t. Life, of course, is not so simple. For almost any piece of information, the unauthorized disclosure of which could cause damage to national security, it can also be said that the withholding of the information from disclosure could also damage the “national interest” – not just with regard to promoting "the common defense” but also undermine our efforts to “establish justice, insure domestic tranquility, … promote the general welfare, and secure the blessings of liberty to ourselves and our posterity….”

Thus, each of these initiatives to protect information that can damage our national security must include a new balancing test. This balancing test is not where some official weighs the importance of the public having the information against the damage it could cause national security. Rather, the official should be required to weigh whether the damage to our national security caused by the unauthorized disclosure of the information exceeds the damage to our “national interest” caused by the withholding of the information. The national interest would, of course, include national security but, like our Constitution itself, recognize that there are other national interests than just the “common defence."

I believe James Madison would agree with such an approach, as should our President and Congress.