[Infowarrior] - The Broken System of Classifying Government Documents

[Richard Forno]

The Broken System of Classifying Government Documents

Abbe David Lowell

http://www.nytimes.com/2016/02/29/opinion/the-broken-system-of-classifying-government-documents.html

EVERY few years, a news event demonstrates how dysfunctional, arbitrary and counterproductive the country’s system of classifying information really is. Sometimes it’s an article or book about government conduct that causes hand-wringing among intelligence officials. Sometimes it’s a prosecution under the nearly 100-year-old Espionage Act for mishandling classified information, instead of for actual spying. Now we have calls for prosecuting Hillary Clinton because, when she was secretary of state, she had documents on her private email server that have since been declared top secret.

Mrs. Clinton, along with others accused of mishandling classified information, argues that government information is “overclassified” and that it is poorly labeled, making it impossible to know what is actually top secret. They are right. This debate might prove useful if it forces the government to deal with a bigger issue: the need for a saner system for classified information.

Too much information is classified, and those restrictions last too long. Right now, there are thousands of people in the government who can classify information. Think about the reality: A person can put a “classified” stamp on a document and ensure it is kept secret, or can leave it unclassified, subject to disclosure, and later be accused of having revealed something needing protection. No one risks any real penalty for using the stamp; the only punishment comes from not using it. The result is overclassification.

One person’s decision may not be consistent with that of another. Many times, I’ve seen information in a document marked “top secret” that is easily available on the Internet. Similarly there are numerous examples where the exact same paragraph is marked “secret” in one document but left unclassified in another. Yet people have been prosecuted for disseminating such information, and at trial, the government blocks them from using the unclassified document as a defense.

Moreover, the courts will not accept the argument that information should not have been classified in the first place. Given how almost random the decision to classify is, this is astounding.

Classifications typically last 10 years. There is no real system for reviewing decisions, so information that was stale weeks after it was classified remains secret for years longer. The government may prosecute someone for discussing information that was classified long ago for a reason that is no longer valid. Here, too, the inappropriate length of classification is not a defense.

Often, the motive for classifying something is to protect not that information, but its source. For example, a document states that Kim Jong-un of North Korea had a hamburger for lunch. That is not information that has to be protected, but that we know that he ate it reveals a source that needs protecting. This is where the classification system has to operate properly because real lives and methods are in peril. Yet this kind of information, in my experience, is typically not what is being protected.

The laws used to charge improper dissemination of classified information also subject people to the most selective prosecution imaginable. Consider these real examples.

A high-ranking official gives behind-the-scenes intelligence to a reporter in hopes of putting the administration in a good light. No one is charged. But a lower-ranking official tells a different reporter classified information calling attention to a Middle Eastern terrorist organization and is charged with a felony.

The former head of the C.I.A. gives classified information, including code words for intelligence programs and war strategy, to a biographer with whom he is in a relationship and then lies about it. He is allowed to plead guilty to a misdemeanor. But a State Department analyst who speaks to a reporter about the threat of North Korea’s nuclear program, and then lies about it, is charged with a felony and serves 11 months in jail.

In Mrs. Clinton’s case, people can reasonably assert that in using a private email server she thwarted open government rules or risked the possibility that sensitive information would be disclosed. But the idea that she violated laws about classified information is simply wrong. Any investigation based on after-the-fact determinations of classification would do nothing to protect national security and would distract from the need to reform classification laws.

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