A DISCUSSION OF LAW AND JOURNALISM

Classified “Top Secret”: From the Absurd to the Criminal

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By Trevor Timm

In 1960, a Congressional commission studying government secrecy released a report in which it concluded our nation’s classification system was so abused by government officials that it had become “the first refuge of incompetents.” That conclusion was on full display earlier this month when the Pentagon announced it would buy all 10,000 copies of a book on the War in Afghanistan to prevent classified information from being released to the public. But because some copies were released early, we got a glimpse of the government’s heavy-handed and inept approach to secrecy.

Operation Dark Heart, written by former Defense Intelligence Agency official and Army Lieutenant Colonel Anthony Shaffer, was originally scheduled for release on August 31. Lt. Col. Shaffer went through pre-publication review with the Army in January to make sure he was not disclosing any national security secrets. The Army suggested changes and redactions and then signed off on the book’s release.

In July, however, the Defense Intelligence Agency, Central Intelligence Agency (CIA), and National Security Agency read the manuscript and identified more than 200 passages that they claim “could reasonably be expected to cause serious damage to national security.”   But there was no way for spy agencies to stop its publication, since over 100 copies of the book had already been shipped out to reviewers and online bookstores, so the government decided to buy and destroy all 10,000 copies of the first printing and then redact the information they deemed classified for the second edition.

The government’s decision to censor the book has gained widespread media attention and criticism, but the larger problem of overclassification has not been given the attention it deserves.

Fortunately, many recipients of the first edition of Operation Dark Heart were newspapers, so we know exactly what the government did not want us to see. And it is now quite evident that many of the “serious” national security violations might be better described as “laughable.” Among the redactions are: the nickname and location of National Security Agency headquarters (“The Fort” has been no secret for over half a century;  it is also widely known to be located in Fort Meade, Maryland); the location of a CIA training facility in Camp Perry, Virginia, a fact you can find on Wikipedia; the name and abbreviation of the Iranian Revolutionary Guard Corps, which as the Times points out is “routinely mentioned in news articles;” and the abbreviation for “signal intelligence,” (the cleverly disguised “Sigint.”)  Even Lt. Col. Shaffer’s now defunct code name “Stryker” was deleted along with its inspiration: a John Wayne character from the 1949 movie The Sands of Iwo Jima.

Lt. Col. Shaffer, who initially cooperated fully when the Pentagon said they wanted to buy the first edition and edit the second edition, changed his tune when the fully scrubbed version was revealed. “When you look at what they took out, it’s lunacy,” Shaffer said.

But these seemingly unnecessary blackouts should not come as too much of a surprise because, to those who administer it, our nation’s classification system is quite literally a joke. This fact came to light when the top secret Pentagon Papers were leaked to the New York Times and Washington Post in 1971. Leslie Gelb, the main author and editor of the Pentagon Papers, freely admitted as much when asked why Presidential speeches, public policy papers, and even clippings from the New York Times were stamped with the highest classification “Top Secret.” Mr. Gelb explained that when he first started working at the Pentagon, his secretary asked him how he wanted to classify a particular document. When he asked her what his options were, she told him “Official Eyes Only,” “Secret,” and “Top Secret.” So he replied with enthusiasm, “Top Secret!”

He further explained, “Out of that, the sergeants and the Navy chiefs we had working on this, they started to stamp even the newspapers as Top Secret as kind of a joke.” To fix the problem he said, “we would have had go to through page by page to do it and it was too much work.” Needless to say, they didn’t.

But while classifying—or refusing to de-classify—already-public material may sound amusing and absurd, it can have devastating consequences.  In the Pentagon Papers case, it became clear that much of the information the government was trying to prevent from being released was merely embarrassing—for example, comments disparaging South Vietnamese officials—rather than legitimate national security secrets like troops movements or codes. Such classification is antithetical to the principles of the First Amendment, as Justice Douglass pointed out in his concurring opinion in New York Times v. United States. “The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be.”

Even worse, the government can use the classification system to cover up corruption and outright crimes. Both the Bush and Obama Administrations have successfully argued in federal court that entire lawsuits can be dismissed even if there is illegal activity perpetrated by the government as long the subject of the lawsuit is a “state secret.” The most recent example of this egregious manipulation of the classification system occurred in September 2010 case Mohamed v. Jeppesen, when five plaintiffs sued an airline company for participating in the CIA’s secret “extraordinary rendition” program. The Washington Post’s Dana Priest described the program as such:

Members of the Rendition Group follow a simple but standard procedure: Dressed head to toe in black, including masks, they blindfold and cut the clothes off their new captives, then administer an enema and sleeping drugs. They outfit detainees in a diaper and jumpsuit for what can be a day-long trip. Their destinations: either a detention facility operated by cooperative countries in the Middle East and Central Asia, including Afghanistan, or one of the CIA’s own covert prisons — referred to in classified documents as “black sites,” which at various times have been operated in eight countries, including several in Eastern Europe.

The kidnappings were widely reported on in the media and President Bush acknowledged the program’s existence. And despite the fact the plaintiffs relied entirely on publicly available documents and statements from foreign governments corroborating their claims  of wrongful imprisonment and torture, the lawsuit was ultimately dismissed because the underlying subject matter was considered a classified “state secret.”

As the plaintiffs’ counsel lamented, “The only place in the world where these claims can’t be discussed is in this courtroom.”

Mohamed v. Jeppesen makes clear that the ability of the government to classify virtually anything it wants is especially disturbing for the rule of law. As a previous court ruling acknowledged, “This sweeping characterization…has no logical limit—it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.”

Yet despite the clear penchant for abuse of the classification system, the practice is increasing. In 2004, the government classified over 15 million documents, more than twice the amount they classified in 2001. It is also clear this much of this information isn’t that secret anyways. As part of its July exposé entitled “Top Secret America,” the Washington Post reported that an  “estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances.”

In Lt. Col. Schaffer’s situation, ironically, the government probably gave more attention to the supposed secrets by censoring the book than by just by letting it go to print. As Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, said on September 9th, “It’s an awkward set of circumstances. The government is going to make this book famous.”

Sure enough, two weeks later, you could find an uncensored copy on eBay for $2000, and the pre-orders for the next edition have risen to #2 on Amazon’s best sellers list.

And anyone who wishes to read the original edition—for free—will soon be able to, as Wikileaks announced it has a copy. “Burn all the books you want, Nazi punks,” Wikileaks declared. “We already have a copy.”

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