Government Secrecy Is a Farce By Ivan Eland

May 29, 2006

Over the weekend, Attorney General Alberto Gonzales made a draconian threat to prosecute journalists for writing about the National Security Agency’s (NSA’s) clandestine and illegal monitoring of U.S.-overseas telephone calls. That threat shows what an Orwellian farce the government’s classified information system has become.

Gonzales is threatening to prosecute reporters under the 1917 Espionage Act. This anachronistic act was passed during World War I to make it illegal for unauthorized personnel to receive and transmit national defense information. The law is also currently being used to prosecute two lobbyists from the American Israel Public Affairs Committee (AIPAC) for obtaining and transmitting classified information they received from a U.S. Defense Department employee. The lobbyists’ lawyers have filed a motion in court arguing that the law is an unconstitutional breach of the First Amendment right to free speech.

A successful prosecution in the AIPAC case could open the floodgates to indict journalists for publishing classified information leaked to them by government officials. The government would have an easier time prosecuting reporters than it does uncovering and indicting often-anonymous leakers. In fact, the threat of being prosecuted might make reporters less inclined to protect sources, thereby flushing out the leakers, or making officials more reluctant to leak in the first place.

The casual observer might conclude that reducing the amount of classified information in the media might be a good idea. But the revelation of the unconstitutional NSA domestic spying program shows that leaks by conscientious officials can, at times, have positive effects. And the public shouldn’t assume that all, or even most, of the information the government shields from public view needs to be secret.

Classification can hide facts embarrassing to the U.S. government or keep information from the American public that is common knowledge among foreign governments. An example of the latter was President Jimmy Carter’s revelation on television that the United States had spy satellites, which the nations of the world had long known.

Officials working for both Democratic and Republican administrations have routinely and predictably exhibited contradictory behavior toward classified information—on the one hand, regularly leaking highly classified information for political or policy gain and, on the other hand, attempting to stifle leaks of embarrassing information. The most famous case of the latter was President Nixon’s team of Watergate “plumbers,” which was originally set up to plug leaks.

Such schizophrenic behavior was recently on display at the confirmation hearing of General Michael Hayden, nominated for director of the CIA. General Hayden said that he would only respond to Senator Dianne Feinstein’s pointed questions about embarrassing government spying activities and prisoner interrogation methods in a committee session closed to the media and public. But in response to one of Senator Feinstein’s questions, General Hayden eagerly took the opportunity to talk about the Iranian threat in open session. Similarly, government officials keep the cost of the overall U.S. intelligence budget classified, even though it is widely known to be about $44 billion. Yet they have no problem leaking to the media to brag about the tripling of clandestine intelligence officers in the field or the opening of 20 percent more secret CIA stations around the world—information that actually might be of some use to terrorists and foreign intelligence agencies.

Yes, there is some information that should be classified—for example, intelligence officers in the field (or their foreign sources and contacts) could be killed if their identities were revealed. Yet the same Bush administration that may well prosecute reporters for writing about its illegal warrantless spying program conspired at the highest levels to expose the identity of a CIA field officer for political gain. The evidence seems to indicate that Vice President Dick Cheney was interested in CIA officer Valerie Plame’s occupation.

But the over-classification of much government information makes officials cynical about keeping much smaller amounts of legitimately sensitive data under wraps. Thus, a massive declassification of government information would make the remaining secrets more secure and less open to political manipulation. Unfortunately, the Bush administration is classifying ever more information.

More important, in a democracy, where the supposed rulers—the people—need the maximum information possible to make good decisions, the amount of information that is withheld from the public should be minimal. And if the government cannot keep its data secret, government officials, not journalists, should be the ones who are prosecuted.

Alvaro Vargas Llosa is a Senior Fellow and director of The Center on Global Prosperity at the Independent Institute. He is the author of Liberty for Latin America.

Robert Higgs is Senior Fellow in Political Economy at The Independent Institute, author of Against Leviathan and Crisis and Leviathan, and editor of the scholarly quarterly journal, The Independent Review. Click here for a bio on Dr. Higgs, the noted economist and historian.

William Marina is Research Fellow at the Independent Institute in Oakland, Calif., and Professor Emeritus of History at Florida Atlantic University.

David T. Beito is a Research Fellow at The Independent Institute, Associate Professor of History at the University of Alabama, and co-editor of the book, The Voluntary City: Choice, Community and Civil Society.

William Marina and David T. Beito belong to "Liberty and Power," a group blog at the History News Network.

For further articles and studies, see the Center on Peace & Liberty and OnPower.org.

Nicolas Heidorn is a public policy intern at The Independent Institute in Oakland, California.

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