Summary of "Lawfare Archive: Christina Koningisor on Secrecy Creep"

Released on May 17, 2025, The Lawfare Podcast episode titled "Lawfare Archive: Christina Koningisor on Secrecy Creep" delves into the expanding scope of government secrecy beyond the federal level. Hosted by Alan Rosenstein of The Lawfare Institute, the episode features Christina Koningasor, a law professor at the University of Utah and author of the pivotal article "Secrecy Creep." This comprehensive discussion explores the phenomenon where secrecy doctrines traditionally reserved for national security are increasingly being adopted by state and local governments.

Introduction to Secrecy Creep

Alan Rosenstein opens the discussion by defining "secrecy creep" as the gradual extension of secrecy rationales from the federal level to state and local governments. He emphasizes the potential threats this poses to government transparency and democratic accountability.

Alan Rosenstein [03:03]:

"Government secrecy is pervasive when it comes to national security and foreign affairs, but it's becoming more and more common for state and even local governments... to invoke government secrecy rationales that in the past, only the president of the United States and the national intelligence community were able to claim."

The Glomar Case: Origins of a Secrecy Doctrine

Christina Koningasor recounts the historical Glomar case, which became the foundation for the Glomar Doctrine—a legal principle allowing the government to neither confirm nor deny the existence of certain records under the Freedom of Information Act (FOIA).

Christina Koningasor [04:13]:

"So my understanding is that there was a sunken Soviet nuclear submarine that went missing, I think, in 1968... the United States had sort of a better sense for where it might be... they named the ship the Hughes Glomar Explorer... they named this ship in a way that would sort of reflect the fact that Howard Hughes was the owner and was conducting this mining expedition."

Evolution of the Glomar Doctrine

The discussion progresses to how the Glomar Doctrine transitioned from a federal secrecy tool to one utilized by state and local agencies. Koningasor explains the legal intricacies and the gradual adoption across various levels of government.

Christina Koningasor [06:08]:

"From this very kind of classic national security sort of situation... over time, the CIA began to use it a bit more. The FBI started using it, other national security agencies started relying on it... and eventually it also began to spread to the state and local context."

Scope and Prevalence of Secrecy Creep

Koningasor details the extent to which secrecy doctrines like Glomar have permeated state and local governments, citing specific examples such as Maine and Indiana, and highlighting the challenges in tracking its widespread use.

Christina Koningasor [09:23]:

"Two state legislatures have amended their public records laws to explicitly allow for glomars, and both did so in a way that was limited only to law enforcement agencies... They said, to the extent we have responsive records, we can't release them to you because they're protected under..."

Expanding Beyond Glomar: Other Secrecy Tools

Beyond Glomar, the conversation covers additional secrecy doctrines such as executive privilege, illustrating how these tools have similarly migrated to lower levels of government.

Christina Koningasor [17:04]:

"Another set of tools includes executive privilege... state governors started saying, well, actually, you know, I should enjoy these protections as well... and now, you know, we've gone from the President to city mayors saying, well, this is similar enough that I need this tool as well."

Factors Fueling Secrecy Creep

The episode examines the factors contributing to the rise of secrecy creep, including the post-9/11 landscape, increased collaboration between federal and local agencies, and the decentralization of surveillance technologies.

Christina Koningasor [23:32]:

"In the wake of 9/11, you see the NYPD sort of start to assume a lot of the kind of behaviors and structures of the CIA... as you have this sort of closer Working relationship... some of these secrecy tools sort of passed along those lines."

Influence of Federal Practices on Local Secrecy

Koningasor explores the concept of institutional isomorphism, where state and local agencies mimic federal practices regarding secrecy, often without tailored consideration of local contexts.

Christina Koningasor [26:53]:

"We have seen federal judges, state judges looking to federal interpretations of FOIA to interpret their own state public record statutes all the time... there's a lot of reasons not to just kind of knee jerk adopt what the federal government is doing."

Concerns Surrounding Secrecy Creep

The discussion highlights significant concerns, such as legal discordance, diminished oversight, and the erosion of local transparency, exacerbated by the decline of local journalism.

Christina Koningasor [29:59]:

"These tools make a lot of sense in the federal context... but... there's this sort of general understanding that this is possible... and there's a lot of thought, agencies are like, well, we can invoke this response... without necessarily a lot of thought."

Potential for Reform

Addressing solutions, Koningasor suggests that reforms must occur at the state and local levels, emphasizing legislative amendments and stricter guidelines to regulate the use of secrecy doctrines.

Christina Koningasor [34:40]:

"If it's going to be used, it needs to be done with very, very kind of strict guidelines... state legislatures could amend their public records laws to prohibit use of glomar, or to say, if you're going to use it, it's only under these very specific sets of circumstances."

Conclusion and Final Thoughts

Alan Rosenstein concludes the episode by acknowledging the pressing nature of secrecy creep and the need for vigilant reforms to restore transparency and accountability in state and local governments.

Alan Rosenstein [41:24]:

"Well, unfortunately, we're going to have to leave it there. But, Christina, thank you very much for talking to us about this issue of Security Creep."

Key Takeaways:

1. Secrecy Creep Defined: The extension of secrecy doctrines from federal to state and local governments, undermining transparency.
2. Historical Roots: Originating from national security needs, exemplified by the Glomar case.
3. Expanding Scope: Beyond Glomar, tools like executive privilege are being appropriated by lower government levels.
4. Drivers of Change: Post-9/11 collaborations and technological advancements have facilitated secrecy creep.
5. Implications: Reduced oversight, legal inconsistencies, and weakened democratic accountability.
6. Path to Reform: Legislative action at state and local levels is essential to curb the misuse of secrecy doctrines.

Notable Quotes:

• Christina Koningasor [13:38]:

  "In my request for materials about the glomar, I got a glomar, which just gives you a sense for... how routine this has been and how far we've really traveled from this pretty extraordinary set of circumstances that gave rise to the birth of this response."

• Christina Koningasor [29:59]:

  "There's no good way of knowing sort of how frequent it is... but sort of anecdotally, we have seen this pop up in states all across the country."

• Christina Koningasor [36:43]:

  "I think the most common pattern we see is a state or local actor will invoke this secrecy tool and then that will be challenged and will go to a state judge, and then the judge has to decide whether or not this is permissible under state law."

This episode underscores the critical need for robust oversight and tailored legal frameworks to prevent the erosion of transparency at all levels of government.