We dance round in a ring and suppose,
But the Secret sits in the middle and knows.

The Secret Sits, Robert Frost

The recent WikiLeaks (tsunami would be a better word) of about 77,000 diplomatic cables and intelligence reports raised a recurring issue of American law and policy.

A disturbed young man in our military in Europe turned over classified government documents to WikiLeaks (ironically, an organization dedicated to transparency that does not disclose its address or officers’ names). It, in turn, passed them on to
The New York Times, as well as reputable British and German press organizations.

Most, not all, of the documents were published. There was wide public interest in the disclosures, and expected outrage by government officials and others. Threats of indictments against Wiki founder Julian Assange were made, in the United States for the disclosures and in Sweden for improper sexual behavior. So far, the sky has not fallen.

Sabotage or free press? This is not a new question; nor is it one that has been resolved in earlier comparable situations.

During World War II, the
Chicago Tribune was investigated but not indicted for reporting secret government naval intelligence. It ran anti-war stories mentioning our breaking encrypted Japanese messages about its armada at Midway in 1942, and an account on Dec. 6, 1941, of United States military plans in Europe. The government threatened, but backed off, indicting the Tribune under the Espionage Act of 1917. One can hardly imagine a situation more warranting of prosecution than the disclosure of secret wartime maneuvers.

When the notorious Pentagon Papers were leaked and published by
The New York Times and The Washington Post, the United States Supreme Court refused to enjoin publication of that Vietnam War history. It was a cause célèbre and became a landmark victory for freedom of the press. Erwin Griswold, the solicitor general who argued against publication for the government, wrote years later in The Washington Post that the documents did not threaten national security, as he had argued to the court, but unearthed a cover-up of the government’s failed policy.

The only example of a successful prosecution for comparable behavior involved Samuel Morrison’s publication in
Jane’s Defense Weekly of three classified photos of a Soviet nuclear submarine. He was convicted under the Espionage Act and served two years in prison.

A recent case involving Stephen Rosen, an AIPAC lobbyist (I represented him in his forthcoming book about this experience) was thrown out by a federal trial judge. But only after Rosen lost his job and suffered for over a year over his pending indictment. He had been invited to lunch by a mid-level Defense Department official who offered him classified information, which Rosen took and passed on to the press and to an Israeli diplomat. The Washington press establishment supported Rosen’s defense, arguing that he had done no more than every journalist in Washington does, having lunch with government sources and panning for golden gossip.

Pulitzer awardees James Risen and Eric Lichtblau, and
The New York Times (Lichtblau also is my client), were pressured by the government for a year about their disclosures of some of the Bush administration’s anti-terrorism practices. When their exposé appeared, neither they nor the Times were prosecuted. Scooter Libby was snagged in the Valerie Plame incident, but not for sabotage. Judith Miller went to jail for contempt, while the leaker in the State Department and his journalistic microphone were never charged. Go figure.

There also is a relevant body of law on state secrets. It began in a 1953 case,
Reynolds v. U.S. An Air Force test flight including civilian engineering experts crashed in Georgia, killing the four civilians. The Air Force accident report noted safety irregularities and maintenance problems. When the civilians’ families sued, the secretary of the Air Force swore it was a secret mission and disclosure of its report would endanger national security. Lower courts ordered that the report be turned over.

The Supreme Court ruled that it must remain secret. It was the Cold War era. Chief Justice Vinson and a majority of the court held that even the justices should not see the report, abdicating their judicial role by blindly accepting what turned out to be a bogus claim. The families settled their case.

In 1996, the by-then-adult child of one of the deceased civilians found the declassified accident report online. It showed no state-secrets information, but a cover-up of government negligence. Since
Reynolds, the state-secrets defense was raised in 67 cases, cited in 600 others, precluding justice to litigants on the word — secret — of their antagonists in government. The state-secrets defense has been used to cover up egregious extreme rendition in recent cases challenging those excessive practices.


Before deciding whether disclosure of government documents is in the public interest and to be applauded and protected, or is harmful to the country and to be deplored and suppressed, consider the threshold question — is the document properly deemed secret and worthy of concealment in the first place? Washington columnist Martin Schram asked of one Wiki leak: What was so secret about the Taliban shooting heat-seeking missiles at United States helicopters? The Taliban knew about it. Our government knew — we sold them the missiles to fight the Russians. Only the American public didn’t know. Would our national security be imperiled if the public knew? Might revealing covered-up facts of the Afghan war be useful as American foreign policy is assessed?

The key question is how the classification process works in the first instance. How do we protect real state secrets and sift out falsely claimed ones? Who should decide this question?

The system of classification of documents expanded exponentially from the FDR years and World War II forward. Eventually, this system grew into what is currently a $7 billion-a-year government machinery. Over 4,000 officials are authorized to classify documents. They do so at a rate of about 17,000 daily, over 15 million yearly. In addition, over 3 million employees with security clearance — mostly military, defense and contractors — have the power to declare a derivative classification. They do so if they use, excerpt or paraphrase information in a classified document. Experts have testified these folks do so 55,000 times a day, over 20 million times a year, creating a secondary market in secrets. There also is a body of “pseudo-classifications” adding to the culture of secrecy — “sensitive” and other labels are used. And all classifications are subjective, so classifiers may have differing judgments about what is and is not classifiable, as Washington-based archives specialist Tom Blanton has documented.

Five times in the second half of the last century, prestigious, nonpartisan, blue-ribbon committees of experts — most recently the Moynihan Commission — reviewed the classification system. Each time, each concluded that we vastly over-classify. All urged major reforms, but they have not come. If as much as 90 percent of the documents now classified were declassified, as experts and insiders have suggested, those remaining classified would have a perception of legitimacy, more likely to be respected. Even the most ardent free-press advocates respect our nation’s security.

The policy pendulum has swung back and forth between secrecy and transparency. Under the Clinton administration, declassifications expanded, classifications were reduced, FOIA processing was accelerated. Under the recent Bush administration, the opposite occurred. When President Obama was sworn in — at the stroke of midnight, Jan. 21, 2009, an executive order to all executive departments and agencies announced a new policy of openness and transparency. That hopeful intention has not been realized, to date. In fact, the Obama administration has followed prior Bush policies in the state-secrets area.

All institutions tend to operate for the benefit of their administrators, more than for their clients. With regard to classification of government records, a rational policy of openness, one that does not jeopardize national security, is possible. 1.) The currently proposed state-secrets legislation in the U.S. Senate should be passed, requiring judges to decide independently, case by case, what contested records must be kept secret. 2.) All executive agencies should be given a finite timetable (one year) to review and reclassify truly sensitive information, after which public records should be available to the public. 3.) Our Freedom of Information Act should be reformed so that requests are processed swiftly. Mexico processed 36,000 of 40,000 requests within 24 hours via e-mail under its comparable law. Our FOIA requests can take years and are costly and uncertain.

Ronald Goldfarb is a Washington attorney and author. His recent book, In Confidence: When to Protect Secrecy and When to Require Disclosure, was published by Yale University Press in 2009.