America's Secret Obsession

Real secrets -- blueprints for nuclear weapons, specific troop movements, the identities of covert operatives in the field -- deserve to be safeguarded. But when secrecy is abused, the result is a dangerous disdain that leads to officials exploiting secrecy for short-term advantage (think of the Valerie Plame affair or the White House leaking selected portions of National Intelligence Estimates to bolster flagging support for the Iraq war). Then disregard for the real need for secrecy spreads to the public. WhosaRat.com reveals the names of government witnesses in criminal cases. Other Web sites seek to out covert operatives or to post sensitive security documents online.

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The abuse of secrecy is emboldened by technology, which hands those who would stymie transparency a powerful new tool. Federal courts have adopted an electronic management system that is the gateway to about 26 million cases. The hope was that the system would augment the already formidable measures taken to conceal the results of sealed cases and to dissuade the curious, including journalists, from prying into them. So the system was given a default setting that responds "Case Does Not Exist" whenever anyone inquires about sealed cases.

Among the cases whose existence the system would deny are many in which leading U.S. corporations -- including Ford, General Motors, America Online, Sprint, McDonnell Douglas, Goodyear and Sunbeam -- are defendants.

In my research, I learned of a case involving a child named Destiny who had allegedly been injured by a product manufactured by Graco, a prominent maker of children's furnishings and equipment. The case was settled in 2001. Attorneys for both sides declined to discuss it and said they had not alerted the government to any alleged risk posed by the product. There was no finding of liability and today, the product still can't be identified.

In March 2005, Graco agreed to pay the Consumer Product Safety Commission a record $4 million after the government accused it of not reporting defects promptly. About 12 million Graco products had been recalled over a decade, some implicated in the deaths of six children and injuries to 900 others. Destiny was not counted among them.

In response to my inquiry, the federal judge in the case invited me to petition the court to have the case unsealed. But first, I was told, I would have to sign a promise not to reveal what I learned. I declined.

Courts that once served as an effective early warning system for public dangers now collude in suppressing them. Other sealed cases involve racial, sex and age discrimination; antitrust issues; fair labor practices; and racketeering -- all litigation in which the public has a profound interest.

Sealed court cases aren't the only way that excessive secrecy puts the public at risk. Fourteen states have signed secrecy agreements with the Agriculture Department under which they will be notified about contaminated foods but agree not to ask about the source of those foods or the markets and restaurants that carry them. A federal database set up to warn people about dangerous doctors is inaccessible to the general public and available only to those in the health-care field. A government-run database designed to give the public early warnings about unsafe vehicles and tires does not reveal certain negative findings out of concern that they may "cause substantial competitive harm" to the manufacturers.

That same excessive secrecy is reflected in the states. Sensitive to issues of privacy, Ohio refuses to release the names of more than 33,000 drivers who have been convicted of driving drunk five or more times. Last year, two Ohio college students were killed by a driver on his way to his 12th drunk-driving conviction. The casualties of such secrecy play out in state after state.

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Not even the past is safe from the clutches of excessive secrecy. In the manuscript reading room at the Library of Congress, a public archive holding the papers of many eminent Americans, I asked for a list of everything I'm not allowed to see because of "national security." Some of what's on the list is ludicrous: 1953 correspondence of then-ambassador to Italy Clare Booth Luce, stamped "Top Secret;" economist Gerhard Colm's 1946-48 papers on German currency reform; a general's diary from June 1944.