[Infowarrior] - Too Many Secrets

[Richard Forno]

Los Angeles Times
August 10, 2011 

Too Many Secrets

The United States government is overzealous in classifying information.

http://www.latimes.com/news/opinion/commentary/la-oe-leonard-classified-information-20110810,0,5688807.story

By J. William Leonard

Every 6-year-old knows what a secret is. But apparently our nation's
national security establishment does not.

Consider this strange case from earlier this year. On June 8, the National
Security Agency, a top-secret government spy agency, heralded the
"declassification" of a 200-year-old publication, translated from the
original German, on cryptography. It turns out, however, as reported by
Steven Aftergood of the Federation of American Scientists on his blog
Secrecy News, that the 1809 study had long been publicly available and had
even been digitized and published online through Google Books several years
earlier. In fact, the 19th century study had not met the government's own
standards for classification in the first place.

The day after this odd "declassification," the government's four-year
prosecution of NSA whistleblower Thomas Drake under the Espionage Act
collapsed when the government withdrew charges. The official explanation was
that the government had to drop its prosecution to protect sensitive
information about the NSA's targeting of a particular telecommunications
technology that the judge would have compelled it to disclose.

But in my opinion, the classified information Drake was charged with having
possessed illegally -- like the 1809 study -- never should have been
classified in the first place.

Drake, once a high official at the NSA, was prosecuted because, as the
government put it, he was found in "unauthorized possession of a document
relating to the national defense, namely, a classified e-mail."

The charges stem from Drake's leaking of information to a journalist. Drake
acknowledges that he approached a Baltimore Sun reporter with information,
but he insists that he never offered any classified information. "I went to
a reporter with a few key things: fraud, waste and abuse," he said in an
interview with the New Yorker.

Having served as an expert witness for Drake's defense, I have read the
email in question, and it clearly does not meet even the minimal criteria
for classification, namely that it "reasonably could be expected to result
in damage to the national security."

Various government officials involved in the Drake case have made the point
that individual employees do not get to decide on their own that information
they have access to should be declassified; that is the government's role.

Still, government officials are obligated to follow the standards set forth
by the president through a 2009 executive order. They are not allowed to
exceed its prohibitions and limitations in deciding what to classify.
Classifying information that should not be kept secret can be just as
harmful to the national interest as unauthorized disclosures of
appropriately classified information.

In fact, the executive order governing classification treats unauthorized
disclosures of classified information and inappropriate classification of
information as equal violations, subjecting perpetrators to comparable
administrative or other sanctions in accordance with applicable law.

But while government workers, members of the military and government
contractors are routinely disciplined or prosecuted for unauthorized
disclosures, I know of no case in which an official was sanctioned for
inappropriately classifying information.

The Obama administration, which has criminally prosecuted more leakers of
purportedly classified information than all previous administrations
combined, needs to stop and assess the way the government classifies
information in the first place.

The president has said he will not tolerate leaks to the media of war plans
that could harm our troops. Of course such actions shouldn't be tolerated,
but that is in no way what Drake did. Classification is a critical national
security tool. The ability to deny information to an enemy and to protect
sensitive intelligence sources and methods is vital to our nation's
well-being.

To be effective, however, this tool must be applied with discernment,
distinguishing 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.

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J. William Leonard spent 34 years working for the federal government in
national security, including five years as director of the Information
Security Oversight Office during the George W. Bush administration.