Even as the Trump administration makes no secret of persecuting whistleblowers and cracking down on the press, the Defense Department is, with much less fanfare, seeking to curtail public access to unclassified records. While its latest move has drawn relatively little attention, it may pose the greatest systemic threat to accountability.
A proposal submitted to Congress last month would empower the military to exempt “Controlled Unclassified Information” from the federal Freedom of Information Act — effectively putting millions of files beyond the reach of taxpayers, and open-records laws, potentially forever.
The new rule could bury the vast majority of documents the Pentagon creates.
This unacceptable overreach could effectively shroud unclassified records in even more darkness than classified ones. It’s also part of a coordinated campaign to shield the administration from embarrassment and accountability.
So far, the administration’s go-to tactic to keep the public in the dark had been aggressively silencing journalists and their sources. The government subpoenaed several New York Times journalists this month, as well as their phone records and family communications, for reporting on security concerns over the luxury jet President Donald Trump accepted from Qatar. Rather than answering questions about the wisdom and legality of accepting the plane, the DOD and the Justice Department instead launched a joint leak task force to deploy the “full force of the law” against whistleblowers and leakers.
This follows the Pentagon’s attempts to institute an unconstitutional media access policy to curtail reporting (a move that prompted most of its press corps to turn in their badges); the DOJ’s rollback of Biden-era guidelines that protected journalists during leak investigations; prompting all federal employees to sign nondisclosure agreements; and the Pentagon’s cynical suggestion that reporters simply file FOIA requests to obtain information — an unworkable solution for journalists who cannot wait for the agency to clear its backlog of more than 40,000 requests to report the news.
As bad as these moves are for public oversight, the Pentagon’s proposal to hide its unclassified records is an even more insidious secrecy threat. It’s hard to overstate the potential impact of making CUI off-limits to FOIA: Virtually all of the DOD’s 2.8 million employees, as well as its hundreds of thousands of contractors, regularly handle CUI records. This means the new rule could bury the vast majority of documents the Pentagon creates. While there’s no central registry that tracks all the CUI designations made across the agency, it’s not hard to fathom this impacting hundreds of millions of records.
CUI is not a classification level like “secret” or “confidential”; rather, it’s a way that the government categorizes unclassified information and provides instructions on how those records should be physically handled inside the government. Already, the CUI system is too unwieldy and plagued by abuse, and the prevailing attitude at the DODt is simply“when in doubt, mark it CUI.” An inspector general advisory confirmed that sentiment earlier this year.
Although the FOIA process takes far too long (the oldest request at the Pentagon turned 17 this year, and it’s not uncommon for requesters to have to wait a year or more for records), it’s vastly better than being denied access to records entirely. That’s why it’s a good thing that a CUI stamp is not sufficient to block the release of records in response to a FOIA request. When requests are submitted, officials are supposed to review the document and only withhold information if it fits into one of nine legally defined FOIA exemptions.
But the Pentagon’s proposal to Congress would bypass FOIA’s transparency requirements and give the military sweeping powers to withhold nearly all unclassified information.
One of the proposal’s most pernicious aspects is that these unclassified military secrets would have no expiration date — making them de facto permanent secrets. This is a farce, especially given that classified information is generally subject to release after 25 years. This new standard could keep everyday paperwork under tighter wraps than secret records.
The Pentagon’s proposal to Congress would bypass FOIA’s transparency requirements and give the military sweeping powers to withhold nearly all unclassified information.
The proposal would also prevent state and local governments from releasing unclassified military records, CBS News has reported, even if release is acceptable under their open-records laws.
Transparency with the public isn’t the only disclosure at risk. At the same time the DOD is seeking to cut off public access to records, a standing directive from Defense Secretary Pete Hegseth and Deputy Secretary Steve Feinberg bans military personnel from communicating with Congress unless rdouted through a central office, potentially infringing on Congress’s right to conduct oversight — a dynamic this proposal would only worsen.
Secrecy is already a dangerous problem at the Pentagon. Operating with virtual impunity, the U.S. military continues to carry out extrajudicial strikes in the Caribbean that have killed a reported 221 people, while refusing to declassify the legal justification for doing so. And as the war with Iran drags on, officials appear to be excluding wounded Americans troops from official casualty tolls, raising questions about the accuracy of casualty reporting.
Hegseth’s DOD is not an agency that needs latitude to hide even more information, especially as its budget balloons to a staggering $1.5 trillion. It is unconscionable that an agency funded so substantially with American tax dollars should be allowed to hide how it spends that immense wealth. Further, it is fundamentally undemocratic to chill civil servants from exposing potential waste of those funds and agency abuse.
If the Pentagon is allowed to bypass transparency laws, our system of government loses its most vital counterweight to agency obfuscation and wrongdoing: public scrutiny. Congress must resoundingly reject this overreach. If the information isn’t classified, it simply should not be kept a secret.
The post Pete Hegseth’s Pentagon secrecy push threatens access to unclassified records appeared first on MS NOW.
