(photo: Ninja M)

In a Los Angeles Times op-ed published today, J. William Leonard, who worked for five years as the director of the Information Security Oversight Information Office when George W. Bush was president, calls on the Obama administration to sanction “those who inappropriately classify information, and it needs to take far greater care in what it decides to label secret.”

Leonard’s argument is essentially the following: There is no problem with the administration’s position against any leaks of war plans to the press. However, the administration has waged a war on whistleblowers—people like former National Security Agency (NSA) official Thomas Drake, who did not leak plans that would provide information to an enemy or put “sensitive intelligence sources and methods” at risk of exposure.

He calls for the application of “discernment”—the distinguishing of “truly sensitive information that can be used to harm our nation from that which cannot.”

Currently, the strong impulse within the U.S. government is to overclassify. The administration needs to begin sanctioning those who inappropriately classify information, and it needs to take far greater care in what it decides to label secret. Otherwise, it will continue to find itself prosecuting cases it can’t win and denying the public access to information it should possess.

A recent ACLU report on government secrecy highlighted the denial of public access to information, which the Obama administration has been perpetuating. 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.” And, “derivative classification” has “exploded,” meaning99.7% 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.”

Leonard points out, “Unauthorized disclosures of classified information and inappropriate classification of information” are punishable by “administrative or other sanctions,” and explains he can think of “no case in which an official was sanctioned for inappropriately classifying information.” He notes under a 2009 Executive Order issued by Obama unauthorized disclosures and the improper classification of information are “equal violations.”

The effect of Obama’s executive order on classified information was an attempt to address a systemic problem in government. But,  the ACLU secrecy report makes clear it has barely done what it was supposed to do. For example, one provision of the executive order states “no information may remain classified indefinitely.” The report says, however, “Sections governing automatic declassification of records at 25 years retain broad exemptions—some of which are actually expanded under the new EO, allowing more material to remain classified for longer periods.”

Additionally, records that meet “exemptions” are to be declassified after 50 or 75 years. Yet, those records may have “further exemptions.” The likelihood of deterring government abuse, misconduct or waste is severely diminished because anyone responsible would have retired from government by the time such records were declassified or they would be dead.

The lack of checks against government officials who improperly classify is likely a result of what the ACLU report characterizes as a “system devoid of independent oversight has always been a major part of the over-classification problem, as the multitude of secrecy studies since 1956 confirm.”

In the opening of the book 63 Documents Your Government Doesn’t Want You to Read by Jesse Ventura, the former independent governor of Minnesota, emphasizes this fact: “The number of new secrets rose 75 percent between 1996 and 2009, and the number of documents using those secrets went from 5.6 million in 1996 to 54.6 million last year.” And, now “there are an astounding 16 million documents being classified Top Secret” by the US government each year.

That can’t be reasonable or remotely acceptable. Such a figure should lead one to presume the government is increasingly finding reasons to classify anything and everything these days. A good recent example is the ACLU’s attempt to have twenty three US State Embassy cables that have already been released by the media organization WikiLeaks declassified.

The government absurdly claims the cables do not “describe federal government activity.” What “activities” do they assert have nothing to do with the actions of the federal government?

  • descriptions of interference with the Spanish investigation of CIA rendition flights and prosecution of Bush administration officials for torture of detainees;
  • urging Germany to drop arrest warrants for the rendition and torture of Khaled El-Masri, an innocent German citizen;
  • attempts to pressure the Italian judiciary to drop international arrest warrants for the CIA’s kidnapping and rendition of Egyptian citizen Abu Omar in Milan;
  • diplomatic meddling in response to investigations of CIA rendition programs throughout IrelandPortugalSwitzerland, and the Netherlands;
  • international admissions and negotiations regarding the use of drones throughout Pakistan and Yemen.

It is good that someone of Leonard’s stature has come forward. Sanctions for those improperly classifying information would be an appropriate step in advancing the cause of open government. Firing those who seek to conceal information that should be made public would be an even better step.