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Wikileaks, Government Prosecutions, Secrecy

Jack Goldsmith
Monday, February 20, 2012, 8:19 AM
In his NYT column today, Bill Keller argues that Wikileaks “was a hell of a story and a wild collaboration, but it did not herald, as the documentarians yearn to believe, some new digital age of transparency.

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In his NYT column today, Bill Keller argues that Wikileaks “was a hell of a story and a wild collaboration, but it did not herald, as the documentarians yearn to believe, some new digital age of transparency. In fact, if there is a larger point, it is quite the contrary.”  After bemoaning the Obama administration’s clampdown on digital information and its relatively aggressive pursuit of government leakers, he states the larger point: “The most palpable legacy of the WikiLeaks campaign for transparency is that the U.S. government is more secretive than ever.” Keller is right that the Wikileaks phenomenon was overblown.  Bradley’s Manning’s leaks of hundreds of thousands of classified documents and related information were the result of the government’s unbelievably lax digital security system.  Assange’s enterprise for receiving and distributing the information depended on this “push” model of leaking that the government has moved aggressively to prevent. But it does not follow that the government is more secretive than ever.   Yes, the government is bigger than ever.  Yes, it classifies more information than ever.  And yes, it is pursuing leakers more aggressively than ever.  But the government by many other measures is losing the war against leaks.  The size of the secrecy bureaucracy makes secrets harder than ever to keep.  So too do modern information technologies, which enable journalists and non-journalists around the globe to watch, collaborate, and report on "secret" USG activity like never before.  They can also use massive databases and search capabilities to uncover government action, as they did, for example, in uncovering the CIA’s “secret” prisons.  We read about intimate details of covert actions and other classified programs on the front pages of newspapers so often that we have become inured to the fact that this information is not supposed to be in the public realm. Despite the government crackdown on the Manning model of leaking, moreover, secret information in digital form is easier than ever to push out simply because it is so easy and cheap to copy and distribute.  More importantly, such information is also easier than ever to “pull” (i.e. steal), as the government’s massive losses of classified information by cyber theft in recent years attests.  Much of this information is stolen by foreign nations and never published.  But as the rise of hacktivists like Anonymous shows, individuals and organizations can, do, and increasingly will, steal and then publish secret government information. As for the unprecedented wave of government prosecutions:  They are a response to what the government views as a national crisis caused by the unprecedented leaking of classified secrets in the last decade.  The aggressive prosecutions have not been terribly successful to date, and the government has suffered many high profile losses.  It is clearer today than ever how many political, legal, and factual hurdles stand in the way of prosecuting leakers.  Thus, while the criminal investigations into leaking have chilled some government leakers, others are no doubt encouraged by the government’s difficulties in following through.  And the prosecutions do very little in any event to stop leaking of secrets that do not take documentary form, as the regular revelation of classified secrets on newspaper front pages make clear. The messy truth about secrecy and disclosure is well captured by secrecy maven Steve Aftergood, whom Keller invoked, and who in an interview for my forthcoming book said:
The classification system is not an iceberg, it’s a volcano.  It is not a static frozen mass, but a dynamic churning system that is constantly erupting.  New material is absorbed into it at an astonishing rate, while other material is ejected—through a variety of authorized or unauthorized mechanisms—nearly as quickly.
Keller and others in the press focus on the mass of material absorbed into the secrecy system, and react with alarm when the government takes steps to make the information harder to get.  The government focuses on how quickly information is ejected, and reacts with alarm when the press takes steps to cull this information.  These two sides have been competing, with hyperbolic claims by both, since the founding of our nation.  The phenomenon is difficult if not impossible to measure.  My sense of the competition is that the government is obviously able to classify more than ever because of its sheer size and because of the unthinkable amounts of information generated and stored by modern technologies; but that the government also, at the same time, has a harder time than ever keeping important secrets related to national security.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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