By J. William Leonard
3:18 AM EDT, August 18, 2011
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 Mr. Drake was charged with having possessed illegally — like the 1809 study — never should have been classified in the first place.
Mr. 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 Mr. Drake's leaking of information to a journalist. Mr. 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 Mr. 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 Mr. 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.
J. William Leonard spent 34 years working for the federal government in national security, including a five-year stint as director of the Information Security Oversight Office during the George W. Bush administration. This article originally appeared in the Los Angeles Times.
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