Don’t Keep Trade Talks Secret

By Margot E. Kaminski

When Wikileaks recently released a chapter of the Trans-Pacific Partnership Agreement, critics and proponents of the deal resumed wrestling over its complicated contents. But a cover page of the leaked document points to a different problem: It announces that the draft text is classified by the United States government.

Even if current negotiations over the trade agreement end with no deal, the draft chapter still will remain classified for four years as national-security information. The initial version of an agreement projected by the government to affect millions of Americans will remain a secret until long after meaningful public debate is possible.

National-security secrecy may be appropriate to protect us from our enemies, but it should not be used to protect our politicians from us. For an administration that paints itself as dedicated to transparency and public input, the insistence on extensive secrecy in trade is disappointing and disingenuous. The secrecy of trade negotiations not only hides information from the public, but also creates a funnel in which powerful interests congregate, absent the checks, balances and necessary hurdles of the democratic process.

Free-trade agreements are not only about imports, tariffs or overseas jobs. Agreements bring complex national regulatory systems together, such as intellectual-property law, with implications for free speech, privacy and public health.

The level of secrecy employed by the Office of the United States Trade Representative is not typical of how most international agreements are negotiated. It’s not even how our negotiating partners say they want to operate. Yet it is the way that the Obama administration handles trade deals, from a failed anti-counterfeiting agreement more than two years ago to the T.P.P. today. The trade representative’s office keeps trade documents secret as national-security information, claiming that negotiating documents - including work produced by United States officials - are “foreign-government information.”

The justification for secrecy in trade is that negotiations are like a poker game: Negotiators don’t want to reveal their hand too soon, or to get pressured by concerned domestic constituencies. But the trade representative’s office takes this logic too far. After being forced to turn over documents in a 2002 lawsuit, it began regularly classifying trade documents. Now the office uses classification to invoke the national-security exemption to open-government law. Yale Law School’s Media Freedom and Information Access Clinic is challenging this behavior in a lawsuit in which I have submitted testimony.

The peculiarity of this secretive approach is becoming more apparent as our foreign negotiating partners push toward transparency in trade. The European Union now voluntarily releases its side of trade negotiations in an effort to be as transparent as possible, and New Zealand officials pressed for greater transparency in previous trade negotiations with the United States.

Secrecy has real costs. Because the negotiating process combines a general shield from the public with privileged access for industry advisers, the substance of American free-trade agreements does not represent truly national interests. It represents the interests of those members of industry who sit on the office’s Industry Trade Advisory Committees, which have regular access to negotiating information.

One justification for keeping trade negotiations in the executive branch is that it can keep lobbyists at bay, but the current system brings those entities inside, using classification to keep out citizens and competitors. Perhaps in response to these sorts of criticisms, in 2014 the Obama administration announced the creation of a new public-interest advisory committee - but that committee would be given less direct access than industry groups and couldn’t discuss some issues with the public.

Secrecy also delegitimizes trade agreements. The process has been internationally criticized as undemocratic. The European Parliament, for example, rejected the Anti-Counterfeiting Trade Agreement in large part because of legitimacy concerns. In some of our trading-partner countries, citizens have objected to trade agreements by calling them undemocratic. They rightly fear that the American commitment to these agreements is weak because the United States public might rebel once the texts are released.

Congress is soon likely to consider whether to authorize an up-or-down vote on a trade deal, with what’s known as “fast track” legislation. Free trade now involves dozens of areas with complex subject matter, and the agency responsible for negotiating it often fails to tap key expertise. The discussion over the trade-negotiating authority is not a question of which is better: the executive branch or the legislative branch. It’s a question of whose input we’re getting on decisions that reach far beyond trade - into questions on the price of generic drugs or whether websites will have to monitor users online.

As it considers fast track, Congress must address the secrecy, and the views of the privileged advisers, that shaped the agreement. Otherwise “fast” will be little more than a euphemism for “avoid the public and benefit the fortunate few.”

Margot E. Kaminski is an assistant professor of law at Ohio State University in Columbus and a fellow of the Information Society Project at Yale Law School in New Haven, Conn.

© 2015 The New York Times