More than a thousand government organizations and nearly two thousand private companies currently work counterterrorism, homeland security and intelligence programs. Well over two million Defense Department civilian, military and contractor personnel hold confidential, secret and top secret level security clearances. At the same time, the US government engages in a gross amount of classification of information, significantly limiting what citizens are allowed to know about the operations of government and effectively shielding routine abuses of power from scrutiny and outrage.
A newly released report from the ACLU by former FBI agent and ACLU policy counsel, Mike German, and senior policy analyst for the ACLU’s speech, privacy and technology program, Jay Stanley, comprehensively examines the cancer of secrecy in the US government. The report lengthily titled, “Drastic Measures Required: Congress Needs to Overhaul US Secrecy Laws and Increase Oversight of the Secret Security Establishment,” could have more concisely been titled, “Why US Citizens Need WikiLeaks.”
The report appropriately gives attention to all the abuses of secrecy committed since President Barack Obama was inaugurated, which include (but are not necessarily limited to): embracing the Bush Administration tactic of using overly broad “state secrets” claim to prevent the declassification or exposure of information; fighting court orders to release photos depicting abuse of detainees held in US custody and supporting legislation to retroactively exempt the photos from release under the Freedom of Information Act (FOIA); threatening to veto legislation to reform congressional notification procedures for covert actions; refusing to declassify information on Section 215 of the PATRIOT Act, a section believed to allow for the collection of information not relevant to espionage or terrorism investigations and aggressively pursuing a war on whistleblowing by prosecuting whistleblowers to a greater degree than any previous president.
One of the whistleblowers highlighted in the report is Pfc. Bradley Manning, accused whistleblower to WikiLeaks:
The Obama DOJ charged Bradley Manning, a 22-year-old Army intelligence analyst, with “aiding the enemy” for allegedly providing a large cache of classified information to Wikileaks, a website devoted to revealing government secrets Manning was reportedly motivated by a desire to expose secret government activities to public scrutiny. And while the data cache was so large the leaker was unlikely to have known all its contents, the materials did reveal significant evidence of U.S. and other government abuse and corruption. Indeed, U.S. diplomatic cables leaked to Wikileaks are credited with instigating the democratic revolt in Tunisia, which became a catalyst for the “Arab Spring” movements across the Middle East and North Africa. And despite government claims of severe damage done to national security, the government has yet to identify any specific person harmed because of the leaks, and Defense Secretary William Gates reported that no sensitive intelligence sources or methods had been revealed. Gates also called the later leak of diplomatic cables “embarrassing” and “awkward,” but said the consequences for U.S. foreign policy were “fairly modest.” Yet the government subjected Manning to uncharacteristically harsh and clearly retaliatory conditions of pre-trial confinement that a State Department spokesman called “ridiculous and counterproductive and stupid.”
The egregious detention of Manning is no anomaly but just one facet of the Obama Administration’s war on whistleblowers. Also named in the report is former NSA official Thomas Drake, FBI linquist Shamai Leibowitz, former CIA officer Jeffrey Sterling and State Department Stephen Kim.
Of the five, Leibowitz’s case is probably the least known. According to the report, Leibowitz “received 20 months in prison after pleading guilty to charges of leaking classified information to an unnamed blogger. Though what he divulged remains unknown even to the sentencing judge, Leibowitz stated that, “[t]his was a one-time mistake that happened to me when I worked at the FBI and saw things that I considered a violation of the law.”
The report describes the bogus nature of this war on whistleblowers. Noting what is known as the “Bob Woodward rule,” it describes how government officials, to influence, take credit or deflect blame for a decision or policy, leak classified information routinely. Very few of these releases of classified information are prosecuted:
That exposing internal wrongdoing or failures of government policy are aggressively investigated and prosecuted while other potentially more damaging leaks are not only adds to the perception that these prosecutions are simply another form of whistleblower retaliation. For example, in September 2009, Bob Woodward of the Washington Post obtained a leaked copy of a confidential military assessment of the war in Afghanistan that included General Stanley McChrystal’s opinion that more troops were necessary to avoid mission failure. The purpose of this leak was undoubtedly to manipulate the policy debate by putting public pressure on President Obama to comply with the commanding general’s preferred strategy. Amid the mountains of innocuous and illegitimately classified documents the government produces each year, this leak involved one of the small categories of documents that are appropriately kept secret: a war planning document. Yet, the Pentagon showed little interest in discovering who was responsible for leaking the war plans—even as prosecutors relentlessly hounded critics of the national security policies for revealing much less harmful information. The failure to investigate or prosecute the vast majority of officials who leak classified information demonstrates the arbitrary and discriminatory fashion in which the Justice Department is now prosecuting whistleblowers.
This passage affirms the reality that there is such a thing as “good leaks” and “bad leaks.” “Good leaks” make the government look better in the eyes of the public. They help an agency or institution in government establish a narrative that the public does not understand. “Bad leaks” reveal information that creates the potential for scandal. They disrupt abuses of power and require the government to conduct oversight of operations to ensure they are not engaged in lawless activity.
It should go without saying if government has such a fear of leaks or whistleblowing it should not keep so much information classified. But, the perpetuation of what the ACLU calls in its report a “Cold War secrecy regime” is conscious. The US government sees secrecy as an integral part of being a world leader, a moral authority for other countries, which those in power believe do not understand freedom and liberty like the United States.
As the report points out, “According to the Information Security Oversight Office (ISOO), the government made a record 76,795,945 classification decisions in 2010, an increase of more than 40% from 2009.” It notes “derivative classification” has “exploded,” which means “99.7% of classification decisions are not made by the government’s trained ‘original classification authorities’ (OCAs), but by other government officials or contractors who may have received little or no training and wield a classification stamp only because they work with information derived from documents classified by OCAs.’ And, document reviews by ISOO showed that 65% of the documents examined had been improperly classified.”
This is all costly, as the report emphasizes, but the price is worth it to a government that wishes to conduct counter-terror programs that depend on detainee abuse and torture, which is outside the law. It is acceptable for a government that does not want extraordinary rendition and warrantless wiretapping to be known because they would surely invite calls for oversight, making it harder for the programs to run “efficiently” and “properly.” In fact, Obama has given the Attorney General and the Secretary of Homeland Security the ability to designate “highly classified Special Access Programs,” which the ACLU finds to be troublesome since these are programs “primarily focused on domestic rather than foreign threats” and are “more likely to include programs targeting citizens.”
President Obama has learned that there are government policies and programs that operate on and outside the fringes of the law, which certain policymakers and officials find must be kept secret because they are viewed as essential to the so-called war on terrorism. Candidate Obama criticized Bush’s state secrets policy. But, in a case challenging warrantless wiretapping, Attorney General Eric Holder invoked “state secrets” to get the case dismissed. Candidate Obama praised whistleblowers, even including a “whistleblower protection platform” in his agenda. Now, suggesting Obama has any interest in protecting whistleblowers would be laughable.
In December 2009, President Obama did issue an Executive Order (EO) on classification. This indicated that his administration understood there was a need to make changes to what was kept secret and what wasn’t. But, this (EO) has done little to fix the problem of overclassification. And, here’s a nightmare tale for freedom of information advocates:
There were over 400 million documents in a backlog of material that was scheduled for automatic declassification on Dec. 31, 2009 under a Clinton-era executive order. Obama’s EO pushed the deadline for releasing the backlogged materials to the end of 2013 but it also created new automatic declassification requirements for material 25, 50 and 75 years old, so an increasing number of new documents will become eligible for declassification each year as the NDC works against the backlog. While the NDC evaluated an impressive 83 million documents by December 31, 2010, only 12 million were released to open shelves at the National Archives and the backlog remained at over 334 million documents. Other government declassification programs declassified an additional 29.1 million documents, which represents a slight increase over last year, but it pales in comparison to the 204 million documents declassified in 1997.The Kyl-Lott Amendment to the 1999 Defense Authorization Act adds to this burden by requiring an arduous document-by-document review of every record scheduled for automatic declassification to ensure nuclear weapons information is not inadvertently disclosed.
Essentially, the government is making the task more and more cumbersome for any agency in charge of declassifying material, and the government is classifying more material than it can ever declassify.
At this moment, the ACLU report concludes, the government must confront the “WikiLeaks phenomenon.” A large magnitude of classified information can be easily transferred and immediately posted to the Internet. And:
Today, a single cleared individual can now access a huge volume of secret documents, download them onto a small and easily transportable memory medium like a memory stick, and zap them around the world over the Internet—even as the amount of material labeled secret grows, and the number of people with security clearances reaches into the millions. That means that if the government is going to keep all that information bottled up, it is going to have to impose draconian security measures that put it increasingly at odds with the rest of modern society. The Pentagon’s predictable reaction to the leak has already been to impose a new regime of rules around the access to information and memory devices by those who access classified information around the world.
The problem with the notion that the US government might embrace the “WikiLeaks phenomenon” is it flies in the face of the traditional attitude of government toward American society. Government officials, military spokesmen, corporate executives, and think tank intellectuals need secrecy to conduct the affairs of imperial and global politics. They need their day-to-day dealings to be kept from the public so they are not bothered by the citizenry or populist politics, which might force them to divert from whatever grand plan they have for the world.
The ACLU report concludes that secrets now hold value for a shorter period of time. It cites a 1970 Defense Department study, which found “classified scientific and technological information could only be expected to be kept secret for a few years—with one year being the most “reasonable” assumption.” This study concluded, “More might be gained than lost if our nation were to adopt… a policy of complete openness in all areas of information.” But, presidential administrations since 1970 have made a conscious choice, despite recommendations from the Coolidge Committee in 1956 and the Moynihan Commission in 1997 and studies like the 1970 DoD study, to not address the problem of excessive secrecy in government.
The result is a world where organizations like WikiLeaks thrive and ad-hoc, underground and loosely defined organizations like Anonymous flourish. The US government cannot escape this growing trend of openness. The US government will either open government up and become a society that upholds the same values of free society that WikiLeaks trumpets or the US government will further clampdown on flow of information, effectively ensuring the service WikiLeaks provides to the world is vital and that it, in cooperation with various media partners, continues to evolve as a media organization.