The Dangers in Classifying the News

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Deepinks Blog / EFF

The Dangers in Classifying the News

“When everything is classified, then nothing is classified…The system becomes one to be disregarded by the cynical or the careless and to be manipulated by those intent on self-protection or self-promotion.” ~ Justice Stewart, New York Times v. United States, 1971.

Last week, the White House issued the so-called ‘WikiLeaks’ Executive Order, which mandates better security for the nation’s classified computer systems. While ensuring that the government has better security over its own systems is a good goal, it fails to address an equally important problem: the American government’s addiction to overclassification, which goes far beyond the appropriate and effective means necessary to safeguard real secrets.

The Order, announced nine months ago, was put on “a relatively fast track” by the administration, according to Secrecy News, yet the much more meaningful changes to the classification system President Obama pledged to implement at the very beginning of his presidency have been all but ignored.

In 2009, President Obama famously promised “an unprecedented level of openness” in his administration, and a lynchpin in his open government plan was an overhaul of the government’s bloated secrecy system. In a memo on classification on May 27, 2009, he directed all government agencies to aggressively tackle the problem of overclassification and find ways to reduce the number of classified documents. Included in his proposals were a National Declassification Center and “the possible restoration of the presumption against classification."

He wrote the memo for good reason. The amount of sensitive information held by the government at the end of the Bush Administration was extraordinary, as Suffolk Law Professor Alastair Roberts illustrates, using the largest leak in U.S. history—the WikiLeaks cache—as a starting point:

[T]he leaked State Department cables might have added up to about two gigabytes of data—one-quarter of an eight-gigabyte memory card. By comparison, it has been estimated that the outgoing Bush White House transferred 77 terabytes of data to the National Archives in 2009.  That is almost 10,000 memory cards for the White House alone. The holdings of other agencies are even larger.

And the problem is even older than that.  Several US Commissions, including one chaired by Senator Moynihan in the mid-90s and the 9/11 Commission in the last decade, found that unnecessary classification was rampant. EFF’s FOIA work is often thwarted by government claims under Exemption 1 of the Freedom of Information Act, which prevents the release of classified information.

Unfortunately, besides the most peripheral and cosmetic changes, government secrecy has only increased since Obama took office.  Last year, as part of their Washington Post series and subsequent book Top Secret America, Dana Priest and William Arkin reported, “An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances.” Yet incredibly, when the government released its official count as part of an intelligence community report to Congress two months ago, the number of people holding the Top Secret clearance had ballooned to 1,419,051.  And the same report noted that 4.2 million people hold some level of security clearances for access to classified information.

Document classification, already at record highs under the Bush Administration, has continued to explode as well. The government classified a staggering 77 million documents in 2010, a 40% increase over the previous year.

Overclassification causes a myriad of problems. It can open the government up to ridicule, like when the CIA recently refused to release a single passage from its study on global warming, claiming it would harm national security. It can stifle public debate, like two months ago when the CIA tried to censor the memoir critical of its post-9/11 tactics (despite the fact that much of the information that had already been revealed in Congressional testimony).  It can encourage waste and incompetence, as it has at the Department of Homeland Security, where even the budget and number of employees is classified. And most critically, it can be used as a veil to hide illegal conduct, such as the NSA's warrantless wiretapping program.

With so much information stamped “secret,” leaks to the media are inevitable.  On October 4th, the New York Times reported on just that: the “growing phenomenon” of public but classified information.

The older and larger drone program in Pakistan, for instance, is a centerpiece of American foreign policy, discussed daily in the news media — but it cannot be mentioned at a public Congressional hearing. The State Department cables published by WikiLeaks can be found on the Web with a few mouse clicks and have affected relations with dozens of countries — but American officials cannot publicly discuss them.

Nowhere was this absurdity starker than when the media reported on the death of Yemen’s alleged al-Qaeda leader Anwar al-Awlaki, a U.S. citizen, at the hands of a (classified) C.I.A. drone. The evidence against him, the panel of U.S officials who decided he was to be put on a “kill list,” and the legal memo “authorizing” his killing were all “Top Secret,” despite the extraordinary constitutional implications of extrajudicially killing an American citizen.

While technically secret, these stories were plastered over the front pages of newspapers every day for one reason: leaks from government officials to journalists. Leaks of classified information, both helpful and damaging to administrations, have been commonplace for decades, and the Obama administration is no different.

But while high-level White House officials continually leak Top Secret information to justify their covert actions and to combat criticism, Obama’s Justice Department is also engaged in an unprecedented campaign to prosecute lower-level whistleblowers that leak information to the press in the name of public interest. This is in contradiction of another pledge Obama made to protect and strengthen whistleblower protections during his 2008 campaign. His administration, in just two and a half years, has indicted five leakers under the Espionage Act. That’s more than every president since Richard Nixon—combined.

In addition, the Justice Department is currently trying to indict WikiLeaks for publishing classified information—a case that has huge First Amendment implications and could potentially criminalize portions of national security journalism.

By keeping everything “secret” and selectively prosecuting leakers, Obama is, as Glenn Greenwald put it,  “trumpeting information that makes the leader and his government look good while suppressing anything with the force of criminal law that does the opposite.”

The government’s secrecy obsession has many remedies, however. J. William Leonard, George W. Bush’s former “classification czar,” thinks overclassifiers should be sanctioned. The Brennen Center just released a series of innovative proposals—from requiring a written explanation every time a document is stamped ‘secret,’ to allowing authorized clearance holders to win cash prizes for successfully challenging an improperly classified document.

Or Obama could just implement the ideas he already proposed two years ago.

Jennifer Lynch

Jennifer Lynch is a staff attorney with the Electronic Frontier Foundation and works on EFF’s FOIA Litigation for Accountable Government (FLAG) Project.

Trevor Timm

Trevor Timm is a co-founder and the executive director of the Freedom of the Press Foundation. He is a writer, activist, and legal analyst who specializes in free speech and government transparency issues. He writes a weekly column for The Guardian and has also contributed to The Atlantic, Al Jazeera, Foreign Policy, Harvard Law and Policy Review, PBS MediaShift, and Politico. Follow him on Twitter: @TrevorTimm

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