President Obama came to the White House pledging to change the culture of government secrecy. But last year, the nearly 77 million government documents were deemed too sensitive public consumption –- a 40 percent increase in classifications from the year before. J. William Leonard, the government’s former “Classification Czar” joins Kojo to talk about how this critical national security tool is used and abused.

Guests

  • J. William "Bill" Leonard Former director of the Information Security Oversight Office (ISOO)

Transcript

  • 13:06:40

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. A day after he took office in 2009, President Obama issued a memo to every government agency declaring his commitment to an open and transparent government. It's been a hard commitment to keep. Though the administration has an open government plan and created a website for data, Wikileaks, whistle blowers and challenges to security have continued to cultivate a government culture steeped in secrecy.

  • 13:07:22

    MR. KOJO NNAMDIIn fact, last year alone, nearly 77 million documents were classified by the U.S. government, a 40 percent increase from the year before. Statistics like that, obviously, have civil liberties groups up in arms. But the enormous amount of classified information in Washington is also of grave concern to someone who might surprise you. J. William Leonard, who was responsible for overseeing the classification system under the George W. Bush administration, now says government secrecy is going too far.

  • 13:07:57

    MR. KOJO NNAMDIHe joins us in studio. William Leonard is former director of the information security oversight information office. He oversaw that office or he was director of it from 2002 to 2008. Bill Leonard, thank you so much for joining us.

  • 13:08:11

    MR. J. WILLIAM "BILL" LEONARDWell, my pleasure, Kojo.

  • 13:08:13

    NNAMDIThe ISOO, I guess, is an acronym that's probably going to come up a lot in this conversation. So if you hear it, understand that it's the Information Security Oversight Information Office. You spent 34 years working for the federal government in national security, including five years as the head of that office. What compelled you to come out of retirement and go public with your concerns about the over classification of government documents?

  • 13:08:42

    LEONARDWell, Kojo, I've been retired now for about three years. And fortunately, I've had the opportunity to move onto an entirely different career separate from the national security world and...

  • 13:08:53

    NNAMDIBut two cases in particular...

  • 13:08:55

    LEONARDTwo cases in particular.

  • 13:08:56

    NNAMDI... (word?) you out of retirement.

  • 13:08:57

    LEONARDThe day after I retired, I actually received a letter from the defense attorneys in what's known as the AIPAC criminal investigation, espionage case. That was a case, if your listeners recall, where there were two lobbyists, individuals who didn't even have a security clearance, who were charged with violating the espionage act because government officials reportedly had passed on to them classified information and then these two lobbyists, in turn, passed the information on to others to include newspaper reporters and representatives of a foreign government.

  • 13:09:38

    LEONARDI very reluctantly got involved in that case. After 34 years in the federal government, the last thing I thought was the very first thing I would do would be oppose the very same government in a criminal trial. But slowly but surely, working with the defense attorneys and looking at all the evidence in the case, I became very concerned because quite frankly, what these individuals were accused of passing along, clearly in my mind, did not meet the qualifications or standards for classification.

  • 13:10:14

    LEONARDAnd quite -- it was, in my view, an overstretch on the part of the federal government to use the espionage act in this case and to charge these individuals without a security clearance, would somehow, some way violate the espionage act. And ironically, what I firmly believe, after spending my entire adult life working with the classification system, overseeing the classification system trying to make sure that it was effective, I saw in that case, the AIPAC case, that the government's actions, the actions of the prosecution was actually undermining the integrity of that case by stating that information that clearly didn't meet the standards was somehow, someway, covered by it. And...

  • 13:10:59

    NNAMDIOf course, the government later dropped the charges.

  • 13:11:01

    LEONARDThe government later dropped the charges ostensibly because the judge insisted that some of the information they wanted to withhold from the jury, they would not be able to. But I think, in that case in particular, I think the prosecution came to a realization that even 12 typical Americans sitting as a jury as the defendant's peers would likewise come to the conclusion that there was nothing sensitive about this information from a perspective of national security.

  • 13:11:35

    NNAMDIIf you'd like to join the conversation, you can call us at 800-433-8850. Do strict secrecy laws protect us or make us less safe? 800-433-8850 or you can go to our website, kojoshow.org, and answer that question right there. The other -- the second case that got your attention is in the news right now. It's about Thomas Drake, the NSA whistle blower. Tell us about that case.

  • 13:12:01

    LEONARDThat's correct, Kojo. That was a case -- again, as I mentioned, I've moved on into an entirely different career. I have a full time job. I guess, because of my involvement in the AIPAC case, the public defenders for Mr. Drake gave me a call and asked if I could provide assistance. And I demurred. I said, I'm busy. I have a full time job as it is. Fortunately, Mr. Drake had mentally, very competent public defenders, but very persistent.

  • 13:12:27

    LEONARDAnd so they would not take no for an answer. And slowly but surely, in response to repeated entreaties, I became more and more involved in the case. And quite frankly, I'm glad that I did because by doing so, first and foremost, I was able to be part of a team that was able to preclude a great injustice being carried out if -- in terms of the prosecution of Mr. Drake, again, under the espionage act.

  • 13:12:55

    LEONARDBut even more important, again, I saw the government doing a very fundamental overreach in this regard, in terms of the information that Mr. Drake was accused of disclosing, which I was able to read as a member of the defense team, as an exponential expert witness for the defense team. Clearly, this information would not cause damage to national security should it be subject to (unintelligible) ...

  • 13:13:22

    NNAMDIAnd this case bothered you particularly because one of the classified documents that Mr. Drake was accused of unlawfully retaining was actually declassified during the case. But the government continued to use it against him, since it was, get this, classified at the time of the incident.

  • 13:13:40

    LEONARDAnd the actions of the government, in that case, to declassify that e-mail while the prosecution was still underway, was unprecedented. Before my last job overseeing the classification system, I was in the Pentagon and one of the responsibilities I had there was to oversee all of their counterintelligence programs and investigations that the department of defense was involved with.

  • 13:14:04

    LEONARDAnd I can tell you from every espionage act prosecution that I'm -- was intimately familiar with, under no circumstances would the government even consider declassifying evidence before the case was completed because, obviously, it undermines the very worry of fundamental aspect of your case. So for the government to do that, in this case, I think was, A, a recognition that, once again, they would not be able to convince 12 typical Americans, sitting as a jury.

  • 13:14:38

    LEONARDBut the fact that they continued to claim that it was properly classified at the time of Mr. Drake's indictment and at the time it was found in his home, really served as a tipping point for me. Because in my 34 years, I've seen many egregious examples of what were classification but I have never seen a more deliberate of the misuse of the classification system as I did in this case.

  • 13:15:07

    NNAMDIAnd William Leonard spent five years as the head of the office that classifies government information. He joins us in the studio to talk about over classification of documents. He is the former director of the information security oversight information office. And we're taking your calls at 800-433-8850.

  • 13:15:25

    NNAMDIIf you work in the government, have you seen classification overused where you work? 800-433-8850. How have e-mail, the internet and the advent of sites like Wikileaks, complicated, seemingly, dated laws like the espionage act which goes back to World War I and our classification system, which dates back to World War II?

  • 13:15:47

    LEONARDWell, Kojo, what you just pointed out is, I think, the fundamental challenge facing the classification system today. The classification system is fundamentally the same system that we used for the Manhattan project, over 70 years ago, at the beginning of World War II. Fundamentally, it has not changed. It is a product of the industrial age. And since it has not received any sort of fundamental reform or reassessment, what we are essentially trying to do is to apply a system developed for and in the industrial age to the information age.

  • 13:16:25

    LEONARDAnd it just doesn't work. And I think what people have saw is a consequence of the Wikileaks situation as a perfect example because if you review any of that material, you'll see a combination of very banal mundane information that should never have seen the beginnings of any sort of classification markings or whatever.

  • 13:16:48

    LEONARDBut you'll also see some very sensitive information. And the fact that the system today is -- it cannot be very discerning, cannot differentiate between that information which is truly sensitive and that which is not really serves to undermine the integrity of the entire process.

  • 13:17:05

    NNAMDIYou need to put your headphones on because I'm about to head to the telephones. We'll start talking with Michael, in Washington, D.C. Michael, you're on the air. Go ahead, please.

  • 13:17:14

    MICHAEL(unintelligible) differentiate...

  • 13:17:16

    NNAMDIHi, Michael, you need to listen on your telephone and turn your radio down so you can hear us in real time. Michael, are you there?

  • 13:17:24

    MICHAELYes.

  • 13:17:25

    NNAMDIGo ahead, please, Michael.

  • 13:17:27

    MICHAELYes. I was calling in reference to some documents that I was trying to obtain during World War II documents on the Eisenhower fire on the Cold War era. And the guy told me I had to get a congressional hearing or something to get these -- documents specifically dealing with how Eisenhower had used the Muslim Brotherhood to basically fight one of the Muslim groups in Turkey. Now, I mean, in Egypt now who went to the West, particularly in Germany and how they set up shop in Germany and took that model and came over here with assistance.

  • 13:18:00

    MICHAELUnfortunately, the President here, Eisenhower, at that time when he's fighting the Cold War, they had a secret meeting in '53 at the White House and I was trying to get these documents open. And I almost -- for over eight years now, I had no success in doing that. I'm trying to figure out how can I get these documents over the secret meeting that Eisenhower had with Saeed Ramahdan at that time in '53 when he came to the United States.

  • 13:18:27

    NNAMDIWell, it's funny that you mentioned that they said you would have to do something with Congress because one of the things I'd like Bill Leonard to address is whether Congress or the courts have a role in questioning how information is classified or, something we'll get to later in the broadcast, the state secrets privilege, how that's been used in both the Bush administration and now the Obama administration? Or do they simply leave these things, like it would appear the rest of us do, up to the executive branch?

  • 13:18:54

    LEONARDWell, Kojo, when I was in the government and had the opportunity to testify before Congress on that very topic, I was rather vocal in advocating the position that the classification system was the unilateral authority of the President, derived from his article two, constitutional authority as commander and chief and chief executive responsible for foreign relations. Since then, and especially in some of the things I've seen since I've left government, I've begun to evolve and change my views on that.

  • 13:19:30

    LEONARDIn fact, I think that is -- I think one of the core problems is that all too often, the two other co-equal branches of government just automatically deferred to the executive in this area. And as a result, the executive is allowed in courts and before Congress simply to assert that information requires protection in the interest of national security without the need to demonstrate, without even a need to demonstrate that the executive is adhering to their own rules and regulations.

  • 13:20:02

    LEONARDAnd, I think, as we've seen in the two cases I've mentioned, the AIPAC case and the Drake case, I think those are examples where we have judges, I think very appropriately, beginning to push back. And that just simply -- accepting a simply assertion by a representative of the executive government -- executive branch of government that this material requires protection. And the same goes for Congress as well, too.

  • 13:20:28

    NNAMDII was about to say, you mentioned the courts, but are we seeing any efforts by Congress to place more checks and balances on how documents are classified?

  • 13:20:35

    LEONARDVery, very little. There -- you almost have to -- you have to go back literally to the time of Daniel Patrick Moynihan before you can see a member of Congress who felt so strongly on this topic. And even his efforts, unfortunately, fell short in terms of doing any sort of fundamental reform.

  • 13:20:57

    LEONARDThere's been some attempts here, for example, in the homeland security arena to try to instill some discipline. But by and large, Congress continually, on certain key issues, have had battles back and forth with executive branch agencies with respect to what information can be shared with the public and what cannot.

  • 13:21:17

    NNAMDIGoing to take a short break, but that shouldn't stop you from calling 800-433-8850 because we'll be coming back to this conversation. We mentioned Wikileaks. Do you think sites like Wikileaks help or hurt our democracy? 800-433-8850. You can send us a tweet @kojoshow, e-mail to kojo@wamu.org or simply go to our website, kojoshow.org, join the conversation. If you have called, stay on the line. We will get to your calls. I'm Kojo Nnamdi.

  • 13:23:45

    NNAMDIWe're discussing whether or not government documents are over classified and inviting your calls at 800-433-8850. Do strict secrecy laws protect us or make us less safe in your view? 800-433-8850. Our guest is J. William Leonard, former director of the information security oversight information office from 2002 to 2008. That's the office that classifies government information. He joins us in studio.

  • 13:24:13

    NNAMDIAs the country's classifications czar from 2002 to 2008 in the Bush administration, Bill Leonard, didn't you see some of this kind of broad over classification of documents going on in your office?

  • 13:24:26

    LEONARDYes, Kojo. I think especially in post 9/11 environments.

  • 13:24:31

    NNAMDII was about to say, you occupied that office in the post 9/11 period.

  • 13:24:34

    LEONARDExactly. And there was a tremendous growth in the amount of information that was classified. During that period, we heard quite a bit of emphasis, of course, on the topic of information sharing. But that was information sharing internally within the government, making it easier to share classified information between various government agencies and things along those lines.

  • 13:24:59

    LEONARDBut there was, in fact, a very significant growth. As a matter of fact, during this period, I had the opportunity to testify before Congress, as I did many times, and my co-panelist was my successor at the Pentagon. And response to a specific question from the committee chair about her estimation as to over classification, she estimated that about 50 percent of all classified material was over classified, but then she went on to say that, well, as a department of defense, they were fighting two wars and they -- and she thought it was entirely appropriate in those circumstances to err on the side of caution.

  • 13:25:39

    LEONARDI chose that moment to interject and said that that was the first time I ever heard of ever being the part of any implementation strategy. And, in fact, I tried to point out that if ever we got it right, it would be at a time of war where you really want to make sure that you're protecting the information that needs to be protected and not overburdening the system with information that shouldn’t be in there in the first place.

  • 13:26:03

    NNAMDIBefore I go to the phones, and we will get to the phones very shortly, how big is our national stash of classified documents and who processes, stores and catalogs all of this stuff? A lot of our listeners might be surprised to hear that nearly all classification decisions are not made by the government's trained classification authorities, but by other officials and contractors who may have little or no training in classification, whatsoever.

  • 13:26:30

    LEONARDThere's about three million individuals within our country who have security clearance as a -- one sort or another. That includes government workers, members of the military, as well as defense contractors. And when you think about it, that's, I believe, about the combined population of Rhode Island, Montana and Alaska all together. Imagine if everyone in those states had security clearances.

  • 13:26:54

    LEONARDOut of that three million, there's only a little over 2,000 individuals who have been specifically designated as what is known as original classification authorities. That is the officials who have the ability to say yes, this particular fact or this particular event or this particular capability is, in fact, classified at a certain level. The rest of those three million people are supposed to simply implement those decisions made by those 2,000 individuals.

  • 13:27:25

    LEONARDAll too often, though, unfortunately, they have a tendency to apply their own judgment independently. And especially when you think that the system, right now, is biased in terms of penalizing people for under classifying or for failing to classify, everybody knows that if they fail to classify something that should be or not -- don't do it at the proper level, they're going to get in trouble with their boss.

  • 13:27:54

    LEONARDBut never, under no circumstances, have I ever been aware of somebody getting in trouble the other way, in terms of applying classification that shouldn't. So all the bias' that are built into the system is to encourage people to err on the side of caution as...

  • 13:28:09

    NNAMDIToward secrecy.

  • 13:28:10

    LEONARDYes.

  • 13:28:11

    NNAMDIHere is Bill in Alexandria, Va. Bill, you're on the air. Go ahead, please.

  • 13:28:16

    BILLYes, hello. I've, I guess, worked on and off, I guess, for over 20 years on the defense side of the intelligence community. And I have a few serious -- and part of this has to do with the (word?) of the intelligence community, that if you own this information, you essentially are creating empires and you're perpetuating their job. Everybody these days want to skip, these secure classified department information facilities. And if you have a skip, you know, you have your own personnel and payrolls to perpetuate this.

  • 13:28:49

    BILLAnd it's really gotten out of control after 9/11. And a lot of times, you know, I try to tell people they -- and I can give you a perfect example. Somebody would just translate something from a foreign newspaper and they would classify it. And oftentimes, they do secret no for the word national. And I would say, you have to add some value to this. You just can't do a straight class translation. What is your assessment, what is the value that you're added to those?

  • 13:29:12

    BILLBut, you know, the powers that be, these people got delegated under the original classification authorities, they essentially say, well, I have the authority to do and I'm going to do it and that's just the way it was. And that's essentially the way things have gone now. It's just, everybody has a prerogative to classify something and it's just completely gotten out of...

  • 13:29:28

    NNAMDIThis is -- you're talking about information that was made available, publicly, in a newspaper that...

  • 13:29:34

    BILLPublicly...

  • 13:29:34

    NNAMDI...happens to be in a foreign country?

  • 13:29:36

    BILL... (unintelligible) perfect example is foreign newspaper translations, they're kind of -- they're straight off the internet, whether somebody's translating a French newspaper or, you know, Algerian or something like that. All's they're doing is their translating it. What -- I mean, your speaker will know, FBI (word?) what he used to do which essentially, they would just classify. And I would say what are you people doing? That you haven't added any value to this and you come to some assessment based on -- that's, you know, logically classifiable.

  • 13:30:05

    BILLI mean, theoretically, but you just can't just willy-nilly classify stuff. And that...

  • 13:30:10

    NNAMDIWell, I'm glad you used the words willy-nilly because Bill Leonard, I'm asking, what do these sometimes untrained contractors and government employees use as a guide for determining what to classify? Not willy-nilly.

  • 13:30:24

    BILLI believe the guide that, I think, is used more than anything else is, is this something I would like to read about on the front page of the Washington Post? That is the guide that people use. And...

  • 13:30:38

    NNAMDIAnd if I don't...

  • 13:30:39

    LEONARD...and if I don't, well, then it's not a sure -- it's not a failsafe approach, but a surefire way to make sure it doesn't get on the front page of the Washington Post is to assign a classification marking to it.

  • 13:30:50

    NNAMDIBill, thank you very much for your call because document reviews conducted by your former office, the Information Security Oversight Information Office, in 2009, discovered violations of classification rules, such as they are, in 65 percent of the documents examined, with several agencies posting errors of more than 90 percent. What do you say about that?

  • 13:31:14

    LEONARDThis audit was the result of -- some of your listeners may recall a number of years ago, that some of the intelligence agencies, it was ascertained that they were actually removing documents from the open shelves at the National Archives that had previously been made available to the public, and now, in retrospect, the intelligence agencies and defense agencies were having second thoughts about that.

  • 13:31:41

    LEONARDWe conducted an audit of that, and what was disturbing is that the people who did these removals were people with training, were people with access to the most up-to-date classification and declassification guides. But yet, even under those circumstances, they could only get it right two-thirds of the time. And even those things that they got right, technically, may have met the standards for classification, but in no way, shape, or form should have ever been removed from the open shelves.

  • 13:32:12

    NNAMDIBill, thank you very much for your call. We move on to Ted in Washington, D.C.. Ted, you're on the air. Go ahead, please.

  • 13:32:17

    TEDHi, Kojo. I have a question for Mr. Leonard, just sort of -- you kind of alluded to this earlier, but we're talking about how some of this history of how this process has really expanded so dramatically in the last ten years. And obviously, you can point some of that to 2001, what -- you know, that seems to be kind of a cop-out almost, as to sort of the history for why this is happening. And I'm kind of curious, is there a larger sort of force that's driving this explosion throughout this sort of period in time, or is it really just, everyone's just sort of paranoid about things and everyone's just like do it, do it, do it?

  • 13:32:57

    LEONARDWell, Ted, there is, I think, a proverbial culture of secrecy that permeates a large part of our government and, in fairness, to this explosion of classification post 9/11, really there's also been a general explosion of information in general since 9/11, in terms of you know, wasn't that long ago that email was something new and exotic and things along those lines. And so clearly, the application of information technology and the ability to create more and more information has contributed to this as well.

  • 13:33:34

    LEONARDBut again, from my perspective, that speaks only all the more to the need to do a fundamental reassessment and a fundamental reform in terms of the approach -- in terms of how we protect information that can, in fact, harm our national security.

  • 13:33:49

    NNAMDIYeah, I'm thinking of a combination of the fear following 9/11 and the explosion of information following 9/11, the combination leading to a tendency, it would appear, on the part of a number of officials to try to simply be more secretive at a time when it's now virtually impossible to be more secretive, given the explosion of the internet.

  • 13:34:13

    LEONARDIn fact, Kojo, I would submit that post 9/11, secrecy has done more harm to our national security and our nation's well-being than all of the espionage cases in that intervening ten years. Just think, for instance, you know, it was ten years ago this summer that the infamous president's daily brief, the highly classified daily intelligence brief that the president receives, it was ten years ago this summer that one of those daily briefs was entitled, Bin Laden determined to strike in the U.S. Now just stop to think, if just those words, instead of appearing in a top secret code word, president-eyes-only document, had appeared on the front page of Washington Post or the New York Times, just think how different the world would be today.

  • 13:35:06

    LEONARDEven if it did nothing more than just dissuade 19 people from getting on an airplane a month later, it would have had a profound effect. And there's just been numerous examples of those in the intervening ten years where tremendous harm has occurred because of secrecy.

  • 13:35:22

    NNAMDITed, thank you for your call. We move on to Frank in Centreville, Virginia. Frank, your turn. Hi, Frank, you're on the air. Go ahead, please.

  • 13:35:31

    FRANKOkay, thank you. Listen, I’m a retired U.S. diplomat. After 30 years service, I want to tell you a very short story of over classification. In 1968, I was duty officer at the American Embassy in Rome when the Russians invaded Czechoslovakia. I received a cable that in its entirety read, inform American citizens not to travel to Czechoslovakia. What was it classified? Top secret.

  • 13:36:02

    FRANKHow was I supposed to inform Americans if it were top -- well, of course, it really wasn't. There's a tendency among people in the government to play James Bond, and I agree with Bill Leonard that over classification is the biggest sin of the present system.

  • 13:36:19

    NNAMDIThank you very much for that anecdote, Frank, and for your call. Since Frank mentioned top secret, let's take a step back for a second and talk about the levels of government classification. First, what are the minimal criteria for classifying information?

  • 13:36:34

    LEONARDWell, in order for information to be classified, first of all, it has to fall into one of several categories, which are obvious, like military plans and diplomatic relations and things along those lines. The second standard is, is that the information has to be developed by or for or otherwise under the control of the U.S. government. And this -- the prior caller that made reference to foreign newspaper articles being classified is a perfect example of somebody trying to classify information that doesn't even...

  • 13:37:07

    NNAMDIThat's already public.

  • 13:37:08

    LEONARD...that's already public. The next standard is, is that it has to be designated as requiring protection by one of those 2000 approximately government officials who have original classification authority. And last but not least, the original classifier has to be able to identify or describe what is the reasonable basis in which it can be expected that should the information be subject to unauthorized disclosure, that some sort of harm to national security would occur.

  • 13:37:43

    LEONARDAnd that is the grounds where I think, you know -- especially going back to the two criminal prosecutions I was involved with -- where the government clearly came up short in terms of being able to show any identifiable harm, should the information those individuals had been charged with be disclosed.

  • 13:38:02

    NNAMDIAnd what's the distinction between a document classified as confidential, one classified as secret, and another classified as top secret?

  • 13:38:11

    LEONARDConfidential is the most basic level of classification, and all a classifier has to show is that damage could be expected. Secret is the next highest level, and for that, the standard is a little bit higher, but still nebulous, and it's serious damage. And then top secret, which of course is the highest level of classification, the standard is extremely grave damage to national security. Now, there are only three levels of classification, and...

  • 13:38:39

    NNAMDIExcept if you go to the movies a lot or if you read the newspapers a lot, you'll see the phrase, above top secret, from time to time.

  • 13:38:46

    LEONARDExactly, exactly. And that refers to what's really known as a special access program, and people refer to that as code word information, or things along those lines. But it's not really a separate classification, there's only those three. And within each of those classifications, usually at the top secret level, if information is particularly sensitive and the government agency involved wants to create an exceptionally small compartment in which that information is handles, that's usually what we know as code word or special access program information.

  • 13:39:20

    NNAMDIAnd Frank, how were you ultimately able to inform people that they should not travel to Czechoslovakia? I guess...

  • 13:39:29

    FRANKOh, I was able to release the information without, of course, referring to classification. We started to call people, we started to put out bulletins. I have found in 30 years of service that people like to be James Bond. It gives them some power to over classify. It's the same attitude of clerks at DMV or peace officers who sometimes like to see applicants squirm. It's the tyranny of clerks. Bill Leonard is on the right track and I wish him the greatest of...

  • 13:40:07

    NNAMDIThank you very much for your call, Frank.

  • 13:40:10

    LEONARDI guess Frank could have just referred to it, don't travel to that country southeast of Germany.

  • 13:40:16

    NNAMDIAnd with that, we're gonna have to take another short break. When we come back, we'll continue this conversation with Bill Leonard, and take your calls at 800-433-8850. Should penalties for leaking government information vary depending on what kind of information was made public? And should there be penalties for over classifying information? 800-433-8850.

  • 13:40:39

    NNAMDIAgain, you can go to our website kojoshow.org. Join the conversation there. If you have already called, stay on the line, we will get to your call. We still have a few lines open, so you can call us at 800-433-8850. I'm Kojo Nnamdi.

  • 13:42:49

    NNAMDIBack to our conversation with J. William Leonard. He's former director of the Information Security Oversight Information Office which he directed from 2002 to 2008. That's the office that classifies government information. He joins us in studio, and we're inviting your calls at 800-433-8850. What kind of discipline do you think should be used against government officials who over classify documents?

  • 13:43:15

    LEONARDI mentioned before, Kojo, that all the incentives right now are for over classifications since people are routinely, be them government employees, members of the military, defense contractors, they were routinely disciplined or even criminally prosecuted for failure to either properly to classify information that should be, or improperly handling classified information. To my knowledge, no one has ever been held accountable. Nobody has ever been subject to sanction for inappropriately applying classification to information in the first place.

  • 13:43:53

    LEONARDEven though the president's own standards that are set forth in an executive order, and in the case of President Obama it was issued in late 2009, even though the president's own standards clearly state that a violation of the classification rules in either direction, be it failure to -- be it an unauthorized disclosure of classified information, or be it the application classification controls were clearly inappropriate, the president's own rule says that they're equal violations and should be subject to equal sanctions.

  • 13:44:27

    LEONARDAnd yet no one, again, has ever been, which is why in the criminal prosecution we discussed briefly before, the Drake prosecution, I have actually filed a formal complaint with my former office asking them to ascertain to what extent government officials at both the National Security Agency as well as the Department of Justice, have in fact inappropriately applied classification controls to information that clearly does not warrant those controls.

  • 13:45:02

    NNAMDIHave you gotten a response yet?

  • 13:45:03

    LEONARDI have yet to receive a response.

  • 13:45:05

    NNAMDIAnd can the response be, no, that information is classified?

  • 13:45:11

    LEONARDThe response, as far as I'm concerned, is going to be a true test as to whether or not that provision in the executive order is utterly feckless, or whether it does in fact have any effect. But if we are to restore balance to the system, I think it's critical that individuals be held to account when they over classify or improperly classify information.

  • 13:45:31

    NNAMDIThe state secrets privilege is a common law evidentiary rule that permits the government to block discovery in a lawsuit of any information that if disclosed would adversely affect national security. The Department of Justice, under the administration of George W. Bush, radically expended the way it used that state secrets privilege to prevent the declassification of information. And one day after he took office, President Obama sent every agency a memo detailing his commitment to openness in government.

  • 13:46:06

    NNAMDIHere's an e-mail we got from Jonathan. "The strangest part of this discussion for me is that President Obama talked about how he would have a transparent government. He even formed the open government initiative. But in fact, from what I understand, the Obama administration's government is even more restrictive than the Bush administration's. Please have your guest comment on this issue." Has the president's reality lived up to his rhetoric, his promise?

  • 13:46:33

    LEONARDWell, Kojo, a couple of things, I think, can be said. Clearly, this administration has chosen to pursue alleged leakers by utilizing the Espionage Act to prosecute them. And this administration, the Obama administration, has prosecuted more individuals for leaking under the Espionage Act than all other administrations combined in the history of the republic.

  • 13:47:01

    LEONARDIn addition to that, what you refer to as the state secrets privilege, this is something that again is routinely invoked, by this administration and prior administrations, and it's an example of where I believe there is over deference if you will on the part of the courts to allow the executive to just come in and assert this.

  • 13:47:26

    LEONARDFor example, there was a state secret case two or three years ago known as the Horn case, involving an ex, I believe, Drug Enforcement Administration official who was based in Thailand, and had brought suit against the deputy chief admission and then the former CIA station chief because his apartment in Thailand was allegedly bugged.

  • 13:47:53

    LEONARDThe government moved to dismiss that case under a state secrets claim because the identity of the CIA station chief would be highly classified information. The judge upheld it. It went all the way to the Court of Appeals. The Court of Appeals upheld the government motion to withhold that information. Unbeknownst to everybody though, it turned out two years before this case, the identify of this CIA official had been declassified by this CIA.

  • 13:48:19

    LEONARDAnd if you had simply Googled his name, you would have seen that he appeared on "The Charlie Rose Show" a couple of years before. And the Judge rightfully called this a fraud upon the court.

  • 13:48:33

    NNAMDIAt the beginning of his term, President Obama also ordered that government workers should err on the side of turning over documents that are requested under FOIA, the Freedom of Information Act. Have we been seeing more of those granted?

  • 13:48:49

    LEONARDMy understanding is yes. That there has been -- when you take a look at the numbers and what have you, there has been an increase in the amount of information that is released pursuant to FOIA. But again, the challenge is, is that the fact that people have to go through these laborious processes in the first place to have access to information that should be routinely shared, defies I think some reasonable expectations in this area.

  • 13:49:19

    NNAMDIOn to the telephones. Here is Nick in Winchester, Va. Nick you're on the air. Go ahead, please.

  • 13:49:25

    NICKHi, thank you, Kojo. One of your previous callers, and like him, I'm a former foreign service officer, and a lot of this -- a lot of this discussion depends on two things. One is the change of technology from 1968 say, back when we had to type everything and corrections were a pain in the neck and other parts of the anatomy. The second thing is that it's not just a question of classification, at least while I was the government.

  • 13:50:04

    NICKIt was also an issue of distribution. So you had things like (unintelligible) and that sort of thing, in addition to whatever the classification might be. I once made a mistake in releasing an (unintelligible) cable, not only to someone else in the executive branch, but somebody from the congressional side of the government, and this caused a great deal of mischief in that case because this -- well, it's the GAO, and they were on their own initiative investigating all sorts of things in connection with the Army.

  • 13:50:51

    NICKPardon me. And having gotten hold of that cable, they edit out and started making all sorts of questions. We would just as soon not have had to respond, and the unofficial at -- the high official at the embassy whom I respect very, very much, was furious, and he was all set to shoot off a rocket that would probably have terminated my career. I'm just as glad he was talked out of it.

  • 13:51:30

    NNAMDIWell, I'm glad you used the phrase, we would not -- we would rather have had not to respond to because I get the impression, Bill Leonard, that a lot of classification has to do with not only what people do not want to see on the front page of the Washington Post, but uncomfortable questions to which they would much rather not respond.

  • 13:51:55

    LEONARDYou're absolutely right, Kojo. I mean, I think it's human nature that most of us don't like to have someone looking over our shoulder all the time questioning what we do, or what we say at any given moment and especially if you work in the government. And in that regard, the classification system is a convenient way, in terms of limiting the second guessing. It certainly does limit the ability of, for example, Congress, to exercise oversight of elements of the executive branch.

  • 13:52:30

    NNAMDINick, thank you very much for your call. We move on to Jerry in Alexandra, Va. Jerry, you're on the air. Go ahead, please.

  • 13:52:39

    JERRYYes, good afternoon. I just wanted to state that information created by the government, information and data, lives in a limbo called CUI, controlled unclassified information, and it's not releasable until it's classified. So even though confidential, secret and top secret are certain classifications, the controlled unclassified information label does restrict a lot of the output of information and data. And I'll take my comments off the air.

  • 13:53:09

    NNAMDIControlled unclassified information, the operative word being controlled.

  • 13:53:13

    LEONARDAbsolutely, Kojo. And this is a -- has been a growing problem for the past ten years or more. This is something -- this is a series, a system outside the national security classification system, and most of the information that falls into this rubric would be information that the Congress themselves has said that they want to make sure it's properly protected.

  • 13:53:38

    LEONARDFor example, sensitive information dealing with transportation security issues. Privacy act information. Information that somewhere along the way Congress has passed a law that obligates the executive to protect it. But also included in that is a lot of home grown labels that many agencies have come up on their own. Now, President Obama, to his credit, has attempted to get all this under control by bringing it into a single system, known as controlled unclassified information. But it's a daunting task, and one that I think is going to take many, many years to get under control.

  • 13:54:17

    NNAMDIJerry, thank you very much for your call. We got this e-mail from John in Ashburn who says, "The problem goes way back. In the early 1960s, Jack Anderson had an article in Parade magazine regarding the overuse of the classified stamp. As an example of how the government was wasting time and resources by going to ridiculous extremes, he said that the military would not release to him information on how much peanut butter was being purchased by the armed forces on the theory that this data could be used to calculate the exact number of people serving in the armed forces.

  • 13:54:49

    NNAMDIAnderson pointed out that he could walk over to the Soviet embassy on 16th Street where there undoubtedly was a file documenting the exact strength of every branch of the various military services."

  • 13:55:00

    LEONARDWell, actually, Kojo, it goes back even further than that. In 1951, at the height of the Cold War, there was a statutory commission known as the Right Commission. Now, keep in mind, this was just within ten years of the Manhattan Project. And back in 1951, this commission identified as over classification as being -- placing the nation's security at increased risk. And here we are 60 years later still fighting the same battles.

  • 13:55:27

    NNAMDIHere's Tom in Alexandria, Va. Tom, your turn.

  • 13:55:33

    TOMHi, Kojo. I -- I actually have a slightly different question now that I've heard so many guests who have covered topics that I wanted to discuss, which is I've about 15 years of experience in the classified space, both in the military, and then as a contractor. And I recently went back to school at Georgetown to get a public policy degree. And one of the things that you sort of -- they teach at Georgetown is that if you control over information, that's actually a form of power, and the information may -- it's kind of the ultimate source of power.

  • 13:56:03

    TOMAnd how much of this is just the system protecting itself from accountability? I mean, isn't this sort of you've let the genie out of the bottle by creating classification? It's a way of, you know, ensuring that parts of the government are permanently outside of public scrutiny, at least until your past the point at which, you know, any form of public scrutiny could have on an impact to policy.

  • 13:56:25

    TOMAnd, you know, you can see that reflected in our history with, you know, the things we've done in Latin America with helping to depose Mossadegh in Iran. There's all sorts of funny business that the U.S. got involved in that the citizenry themselves may not necessarily have been okay with had they had the benefit of the full scope of the argument.

  • 13:56:45

    NNAMDIBill Leonard?

  • 13:56:46

    LEONARDYes, Kojo. Tom is absolutely right. As a matter of fact, the perfect example of that is, depending upon how you to refer to it as the NSA Terrorist Surveillance Program, or the NSA Warrantless Wiretap Program. That's a program -- two years ago the IGs of the five intelligence agencies released a report that said how the classification system was abused in that case. And what it effectively did was conceal what the attorney general himself during the Bush administration said was a violation of the Federal Intelligence Surveillance Act.

  • 13:57:19

    LEONARDAnd the classification on that case is an example of how damage to our nation's interest can actually occur from oversecrecy. Because if people recall, in that particular instance, we had almost the greatest constitutional crisis since Watergate because the attorney general, the deputy attorney general, the director of the FBI, and other senior officials came within hours of resigning in protest over this fact, and the president himself did not realize it because the secrecy system was keeping information from him and from other people in the government who needed to know it.

  • 13:57:54

    NNAMDII'm afraid we are almost out of time, but I do have to ask you, have you heard anything from the Obama administration now that you've been speaking out about over classification?

  • 13:58:03

    LEONARDNo, I have not. I look forward at the very least to hearing a reply to my complaint.

  • 13:58:07

    NNAMDIJ. William Leonard is a former director of the Information Security Oversight Information Office, which he headed from 2002 to 2008. That's the office that classifies government information. He joined us in studio. Bill Leonard, thank you so much for joining us.

  • 13:58:21

    LEONARDMy pleasure, Kojo. Thank you.

  • 13:58:22

    NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.

Related Links

Topics + Tags

Comments

comments powered by Disqus
Most Recent Shows

Cubed: A Secret History Of The Workplace (Rebroadcast)

Wednesday, Dec 17 2014Like the nature of white-collar work itself, the concept and design of the office has evolved over more than a century, from the counting-houses of nineteenth-century clerks to the cubicles we love to hate. Author Nikil Saval joins us to explore the history of our workspaces.

Amy Webb on Tech Trends for 2015

Tuesday, Dec 16 2014The tech future is now, and big trends for 2015 include wearable devices and lots of new security options. Amy Webb has been tracking the industry for more than a decade and she shares short- and long-term predictions.