The scale of American overclassification
By Nathan Fuller. January 5, 2012.
In his closing statement two weeks ago, PFC Bradley Manning’s defense attorney David Coombs said of the information released, that it is all out in the public, and yet it hasn’t caused any harm. “If anything, it’s helped,” he said. Coombs called the government’s warning about the impact of the releases a “Chicken Little response” — a response the media has picked up on. He said officials were saying the “sky is falling, the sky is falling” over and over. But, he said, “The sky has not fallen, is not falling, and will not fall.”
He alludes to an inconvenient truth that is not well hidden, but also not well understood by many reporters seeking to summarize the WikiLeaks story. The sky is not falling because most of the documents WikiLeaks released should not have been classified in the first place. The U.S.’s classification system is poorly regulated, to say the least, as hundreds of thousands of documents are unnecessarily classified every year.
President Obama’s Executive Order 13526 clearly states:
“In no case shall information be classified… in order to: conceal violations of law, inefficiency, or administrative error; prevent embarrassment to a person, organization, or agency… or prevent or delay the release of information that does not require protection in the interest of the national security.”
Unfortunately, the government is not following its own laws. Using these standards to assess actual classification practices, an internal government review by the Information Security Oversight Office (ISOO) found that, in 2009, 35% of the classified documents examined did not meet the classification criteria.
The problem with poor oversight of government classification has been growing for decades – at least since Nixon’s administration prosecuted Daniel Ellsberg for leaking the Pentagon Papers – but since 2001 it has exploded. To understand how this happens, it helps to know some specifics about our classification authority structure and process.
Currently, more than 4.2 million people have classification clearance, while 1 million hold Top Secret clearance. But even though there are literally millions of low-level government employees and contractors with the authority to classify documents, most of these classification decisions will never be reviewed by a second party.
Furthermore, so many documents are classified in part due to what the Brennan Center for Justice calls the “skewed incentive structure” of the system, wherein officials face no repercussions for classifying documents that don’t meet the criteria, but there are severe consequences for failing to keep sensitive information secret. Whenever remotely unsure, officials err on the side of caution.
One of the ancillary effects of WikiLeaks releasing thousands of diplomatic cables is that it calls more public attention to just how increasingly massive and harmful America’s culture of overclassification really is.
Bradley Manning’s defense requested dozens of witnesses who the military investigation officer chose not to compel to testify at the hearing. Some of the most important witnesses were being called upon to testify directly to this problem of overclassification.
For example, Coombs asked that retired Defense Secretary Robert M. Gates testify
“that the Afghanistan and Iraq SIGACT releases did not reveal any sensitive intelligence sources or methods. He will also testify that the Department of Defense could not point to anyone in Afghanistan or Iraq harmed due to the documents released by Wikileaks. He will testify that the Afghanistan and Iraq SIGACTs are simply ground-level field reports that document dated activities which do not disclose sensitive information or our sources and methods. [He] will also testify that the initial public descriptions of the harm to foreign policy due to the publication of diplomatic cables were ‘fairly significantly overwrought.’”
Government officials are well aware of the problems with staff being able to improperly classify documents without repercussions. Some seek to address it, and some use it to their advantage. Criticisms of the U.S. government’s classification system have come from high-ranking government authorities on a recurring basis for decades. A number of congressionally commissioned reviews have requested that the problem be addressed, and even former Bush Administration CIA Director Porter Goss admitted, “We overclassify very badly.”
President Obama directed a 2009 memo to address overclassification, but the problem has increased under his presidency. According to the ACLU‘s ‘Secrecy Report’ issued this year (PDF), the U.S. classified 76,795,945 documents in 2010, the most in history and eight times as many as were classified in 2001. It’s also 300 times more than were released in Cablegate, which was the largest leak of documents in U.S. history at 251,287. Classifying that many documents is incredibly expensive. According to the Information Security Oversight Office, the government spent more than $10 billion on classification in 2010 alone (PDF).
Overclassification on this gigantic scale has real ramifications for policy. As the Brennan Center argues, overclassification “jeopardizes national security,” “prevents federal agencies from sharing information internally, “contributed to intelligence gaps in the months before the September 11, 2001, attacks,” and “corrodes democratic government” by hiding valuable information from national discussions.
WikiLeaks reveals exactly how this extensive secrecy shapes foreign policy. Glenn Greenwald highlighted reports suggesting that WikiLeaks’ release of a diplomatic cable chronicling U.S. soldiers’ summarily executing several Iraqi civilians, including small children, strained relations between the United States and Iraq and encouraging Iraqi leaders to reject the Obama administration’s deal to keep U.S. troops after the 2011 deadline. As Greenwald says, “whoever leaked that cable cast light on a heinous American war crime and… thus helped end this stage of the Iraq war.”
Several governmental and independent figures have recommended remedies for this system, including requiring officials to justify classification, auditing classifiers’ records, and cash prizes for spotlighting documents that are unnecessarily classified. But as Jennifer Lynch and Trevor Timm of the Electronic Frontier Foundation argue, none of these would be necessary if the Obama administration followed through on his 2009 transparency proposals. The issue is gradually gaining traction in Congress, though. In a December, 2010, hearing on WikiLeaks, Rep. John Conyers pushed back against calls to prosecute WikiLeaks founder Julian Assange, citing overreach “by the Executive Branch when it comes to classifying documents.”
If the Obama Administration wants to show it’s serious about addressing overclassification and to regain some credibility regarding its ability to protect whistle-blowers, it needs to acknowledge David Coombs’ closing argument explaining why PFC Manning is being unfairly and arbitrarily overcharged.
In his closing words, Coombs implored the military to “give the government a reality check,” and to live up to its own professed standards of openness and accountability.
Let’s tell them, he said, quoting former Supreme Court Justice Lois Brandeis’ famous call for transparency, that “sunlight is the best disinfectant.”