The morality of government secrecy versus transparency

We dance round in a ring and suppose,
But the Secret sits in the middle and knows.

— The Secret Sits, Robert Frost

The recent WikiLeaks (tsunami would be a
better word) of about 77,000 diplomatic cables and intelligence reports raised
a recurring issue of American law and policy.

A disturbed young man in our military in Europe turned over classified
government documents to WikiLeaks (ironically, an organization dedicated to
transparency that does not disclose its address or officers’ names). It, in
turn, passed them on to The New York Times, as well as reputable British and German press organizations.

Most, not all, of the documents were published. There was wide public interest
in the disclosures, and expected outrage by government officials and others.
Threats of indictments against Wiki founder Julian Assange were made, in the
United States for the disclosures and in Sweden for improper sexual behavior.
So far, the sky has not fallen.

Sabotage or free press? This is not a new question; nor is it one that has been
resolved in earlier comparable situations.

During World War II, the Chicago Tribune was investigated but not indicted for reporting secret government
naval intelligence. It ran anti-war stories mentioning our breaking encrypted
Japanese messages about its armada at Midway in 1942, and an account on Dec. 6,
1941, of United States military plans in Europe. The government threatened, but
backed off, indicting the Tribune
under the Espionage Act of 1917. One can hardly imagine a situation more
warranting of prosecution than the disclosure of secret wartime maneuvers.

When the notorious Pentagon Papers were leaked and published by The
New York Times and The Washington
Post, the United States Supreme Court
refused to enjoin publication of that Vietnam War history. It was a cause
célèbre and became a landmark victory for freedom of the press. Erwin Griswold,
the solicitor general who argued against publication for the government, wrote
years later in The Washington Post
that the documents did not threaten national security, as he had argued to the
court, but unearthed a cover-up of the government’s failed policy.

The only example of a successful prosecution for comparable behavior involved
Samuel Morrison’s publication in Jane’s Defense Weekly of three classified photos of a Soviet nuclear
submarine. He was convicted under the Espionage Act and served two years in
prison.

A recent case involving Stephen Rosen, an AIPAC lobbyist (I represented him in
his forthcoming book about this experience) was thrown out by a federal trial
judge. But only after Rosen lost his job and suffered for over a year over his
pending indictment. He had been invited to lunch by a mid-level Defense
Department official who offered him classified information, which Rosen took
and passed on to the press and to an Israeli diplomat. The Washington press
establishment supported Rosen’s defense, arguing that he had done no more than
every journalist in Washington does, having lunch with government sources and
panning for golden gossip.

Pulitzer awardees James Risen and Eric Lichtblau, and The New York
Times (Lichtblau also is my client), were
pressured by the government for a year about their disclosures of some of the
Bush administration’s anti-terrorism practices. When their exposé appeared,
neither they nor the Times were
prosecuted. Scooter Libby was snagged in the Valerie Plame incident, but not
for sabotage. Judith Miller went to jail for contempt, while the leaker in the State
Department and his journalistic microphone were never charged. Go figure.

There also is a relevant body of law on state secrets. It began in a 1953 case,
Reynolds v. U.S. An Air Force
test flight including civilian engineering experts crashed in Georgia, killing
the four civilians. The Air Force accident report noted safety irregularities
and maintenance problems. When the civilians’ families sued, the secretary of
the Air Force swore it was a secret mission and disclosure of its report would
endanger national security. Lower courts ordered that the report be turned
over.

The Supreme Court ruled that it must remain secret. It was the Cold War era.
Chief Justice Vinson and a majority of the court held that even the justices
should not see the report, abdicating their judicial role by blindly accepting
what turned out to be a bogus claim. The families settled their case.

In 1996, the by-then-adult child of one of the deceased civilians found the
declassified accident report online. It showed no state-secrets information,
but a cover-up of government negligence. Since Reynolds, the state-secrets defense was raised in 67 cases,
cited in 600 others, precluding justice to litigants on the word — secret — of
their antagonists in government. The state-secrets defense has been used to
cover up egregious extreme rendition in recent cases challenging those
excessive practices.

****

Before deciding whether disclosure of government documents is in the public
interest and to be applauded and protected, or is harmful to the country and to
be deplored and suppressed, consider the threshold question — is the document
properly deemed secret and worthy of concealment in the first place? Washington
columnist Martin Schram asked of one Wiki leak: What was so secret about the
Taliban shooting heat-seeking missiles at United States helicopters? The
Taliban knew about it. Our government knew — we sold them the missiles to fight
the Russians. Only the American public didn’t know. Would our national security
be imperiled if the public knew? Might revealing covered-up facts of the Afghan
war be useful as American foreign policy is assessed?

The key question is how the classification process works in the first instance.
How do we protect real state secrets and sift out falsely claimed ones? Who
should decide this question?

The system of classification of documents expanded exponentially from the FDR
years and World War II forward. Eventually, this system grew into what is
currently a $7 billion-a-year government machinery. Over 4,000 officials are
authorized to classify documents. They do so at a rate of about 17,000 daily,
over 15 million yearly. In addition, over 3 million employees with security
clearance — mostly military, defense and contractors — have the power to declare
a derivative classification. They do so if they use, excerpt or paraphrase
information in a classified document. Experts have testified these folks do so
55,000 times a day, over 20 million times a year, creating a secondary market
in secrets. There also is a body of “pseudo-classifications” adding to the
culture of secrecy — “sensitive” and other labels are used. And all
classifications are subjective, so classifiers may have differing judgments
about what is and is not classifiable, as Washington-based archives specialist
Tom Blanton has documented.

Five times in the second half of the last century, prestigious, nonpartisan,
blue-ribbon committees of experts — most recently the Moynihan Commission —
reviewed the classification system. Each time, each concluded that we vastly
over-classify. All urged major reforms, but they have not come. If as much as
90 percent of the documents now classified were declassified, as experts and
insiders have suggested, those remaining classified would have a perception of
legitimacy, more likely to be respected. Even the most ardent free-press
advocates respect our nation’s security.

The policy pendulum has swung back and forth between secrecy and transparency.
Under the Clinton administration, declassifications expanded, classifications
were reduced, FOIA processing was accelerated. Under the recent Bush
administration, the opposite occurred. When President Obama was sworn in — at
the stroke of midnight, Jan. 21, 2009, an executive order to all executive
departments and agencies announced a new policy of openness and transparency.
That hopeful intention has not been realized, to date. In fact, the Obama
administration has followed prior Bush policies in the state-secrets area.

All institutions tend to operate for the benefit of their administrators, more
than for their clients. With regard to classification of government records, a
rational policy of openness, one that does not jeopardize national security, is
possible. 1.) The currently proposed state-secrets legislation in the U.S.
Senate should be passed, requiring judges to decide independently, case by
case, what contested records must be kept secret. 2.) All executive agencies
should be given a finite timetable (one year) to review and reclassify truly
sensitive information, after which public records should be available to the
public. 3.) Our Freedom of Information Act should be reformed so that requests
are processed swiftly. Mexico processed 36,000 of 40,000 requests within 24
hours via e-mail under its comparable law. Our FOIA requests can take years and
are costly and uncertain.

_____________________
Ronald Goldfarb is a Washington attorney and author. His recent
book, In Confidence: When to Protect
Secrecy and When to Require Disclosure, was published by Yale
University Press in 2009.