Written by Trevor Timm
The US classification system is “dysfunctional” and “clearly lacks the ability to differentiate between trivial information and that which can truly damage our nation’s well-being.” Those are not the words of EFF, nor any other government transparency advocate, but instead came from the former classification czar himself.
J. William Leonard, who was in charge of the secrecy system under President George W. Bush, has recently become its most virulent critic. Buoyed by a massive bureaucracy that stamps virtually everything secret, he says it’s so bad the government actions are hurting democracy. And the government, in recent days, has only proven him correct.
Leonard’s complaints stemmed from a recently declassified memo from a now-defunct Espionage Act case against NSA whistleblower Thomas Drake, of which he said, “I have never seen a more willful example” of inappropriate classification. Though a judge rejected Leonard’s lawsuit to make it public, the Washington Post obtained the memo through a Freedom of Information Act request this week. Here’s how they described it:
The now-declassified two-page memo is titled “What a Wonderful Success,” and it contains praise from Gen. Keith B. Alexander, director of the NSA, for agency employees involved in the [warrantless wiretapping] program. Two paragraphs were marked “secret.” One of them praised the merits of the program and spoke of getting members of Congress to see how it worked. In the other, a team member was lauded for “an excellent job” of briefing Alexander on the program.
Some secrets, indeed. Secrecy expert Steven Aftergood described it as “utterly innocuous and practically devoid of meaningful content. The idea that someone risked decades of prison over this document is an indictment of the agency and its classification policy.”
Amazingly, that may not have been the most absurd secrecy news this week. In another court decision on Monday, a federal judge rejected the ACLU’s lawsuit to force the State Department to declassify 22 of its diplomatic cables. All 22 cables, which had already been published in full by WikiLeaks, have been in the public domain for more than 18 months, with many featured on the pages of newspapers around the world.
The government offered no evidence as to why declassifying the already-public cables would harm national security and never had to acknowledge the cables were genuine, yet the judge ruled in their favor without even reviewing the cables for, say, evidence of alleged wrongdoing or the motive to hide embarrassing information, which are both supposed to be improper reasons for classification or continued classification. As the ACLU’s Nathan Freed Wessler put it, “the government is free to continue pretending that the contents of State Department diplomatic cables already disclosed by WikiLeaks are secret.”
The controversy over leaks has spilled into the Presidential race, and instead of pointing out the obvious and systemic problems of withholding too many secrets, Mitt Romney and President Obama are arguing about who would be a more secretive president.
Meanwhile, the government is busy creating still more secrets under a bigger umbrella. Spending on classification is now approaching $11 billion, double what it was ten years ago. That’s also a 10 percent increase from last year and a 30 percent increase since Obama took office. And as the New York Times pointed out, that total “does not include the costs incurred by the Central Intelligence Agency, the National Security Agency and other spy agencies, whose spending is—you guessed it—classified.”
Additionally, a new intelligence report to Congress shows that the US issued a staggering 4.8 million classified security clearances last year—which comes out to about one in every 50 Americans. That number is a 3 percent increase on the year before, and as Steven Aftergood remarked, the 2010 number “astonished observers because it surpassed previous estimates by more than a million.”
Of course, the number was just an estimate given all the myriad of classification guides of each agency, some of which are secret themselves. Wired’s David Kravets explained: “In other words: the roster of people who are allowed to know secrets is itself so secret, it’s impossible to even assemble a single, decent list.”
President Obama, for his part, promised to reform this system when he came into office, acknowledging in a memo on his very first day in office that the classification process is broken. For an administration that promised to be the “most transparent in history,” it’s getting harder and harder to not come to the opposite conclusion.
Trevor Timm is an activist at the Electronic Frontier Foundation. He specializes in free speech issues and government transparency. Before joining the EFF, Trevor helped the longtime General Counsel of The New York Times, James Goodale, write a book on the First Amendment. He has also worked for the former President of the ACLU and at The New Yorker. He graduated from Northeastern University and has a J.D. from New York Law School.
Trevor also curates the Twitter account @WLLegal that reports on legal news surrounding WikiLeaks, the right to publish classified information, and other freedom of the press issues.