US a nation of secrets - and leaks: Experts

Fordham Law in The Economic Times, October 17, 2012

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NEW YORK: The United States is simultaneously becoming enmeshed in ever-increasing government secrecy -- and a complex culture of leaks, experts said Tuesday.

The two trends result in a confusing landscape where officials reveal secrets, while prosecuting others for doing much the same thing, and no one is quite sure how to cope with the rapid expansion of non-traditional media outlets like WikiLeaks.

Experts told a conference at Fordham Law School in New York that an unwritten arrangement between government and the public on how to manage state secrets has been foundering since September 11, 2001, and that there is no clear solution in sight.

Steven Aftergood, head of the secrecy project at the Federation of American Scientists, said the drive to classify documents is rampant and "often, very often faulty."

To illustrate the veil of secrecy that has fallen across government, he recalled that "20 years ago I used to be able to call up officials in national security agencies to ask them about their programs, ask them questions... have a conversation like a normal human being."

Then, "immediately after 9/11, the Department of Defense withdrew its telephone directory," he said.

Another panelist, retired federal judge James Robertson, described "a serious addiction problem with security."

"We're just drowned in secure information, classified information," he said.

As government officials push more -- often useless -- information behind the classified wall, the greater the difficulty in policing the inevitable leaks, he said, and the greater the potential for alienating the public.

"I myself am concerned by the amount, the banality, and the cost of secure information that we try to bottle up in this country," he said. "Some of what is leaked is banal and some of it is seriously damaging to national security. And who is going to decide which is which?"

Leaks have been increasingly in the news. They range from the massive dump of classified information by WikiLeaks, to whistle-blowing, and deliberate White House feeding of inside information to favored media outlets such as The New York Times.

David Pozen, a Columbia University law professor who until recently worked for the US State Department, said the government at the highest levels can be one of the most enthusiastic leakers.

"The White House wants to plant stories," he said.

That in turn may explain what he calls the remarkably low level of enforcement against the mass of other leakers. By turning a blind eye, this helps give the administration's own semi-official leaks the illusion of authenticity when they appear in the press.

"Being permissive about leaks gives you a more robust possibility... (to) plant leaks," he said.

Despite President Barack Obama's promise on election four years ago to bring unparalleled transparency to the White House, his administration has overseen the prosecution of six leaking cases. While that may seem a tiny number, it's double the previous total under all US presidents put together.

Kenneth Wainstein, a lawyer who served as homeland security advisor to president George W. Bush, denied suggestions that the government is waging war against freedom of information.

"There's been a lot of talk about a record number of leak prosecutions, but I think it's difficult to say the press is in any way diminished," he said. "The Justice Department has shown restraint."

But Scott Shane, a New York Times national security correspondent who knows the government-media leaks machine firsthand, said the six prosecutions under Obama were "beginning to chill reporters."

Experts disagreed whether organizations like WikiLeaks should be shown the leniency enjoyed by traditional media outlets when they publish leaked classified information.

Shane said that the WikiLeaks saga was different to an old-fashioned newspaper expose, but noted that the Times was among the newspapers that collaborated closely with the renegade outfit.

"There is a distinction (but) I'm very uncomfortable with the idea that there is a very clear-cut distinction, he said. "I spent months writing stories based on the documents that in effect they stole."

If WikiLeaks founder Julian Assange were to end up being prosecuted in the United States, "I'll be looking over my shoulder," Shane said.