Our nation's secrets, stuck in a broken system

By Jack Goldsmith
Friday, October 22, 2010

Bob Woodward's "Obama's Wars" contains remarkable revelations about the inner workings of the administration's national security team and the development of its policy on Afghanistan and Pakistan. Equally remarkable is how much classified information is in these revelations -- so much classified information, in fact, that it calls into question the legitimacy of the presidential secrecy system.

The fireworks begin in Chapter 1, which recounts President Obama's post-election intelligence briefing from Mike McConnell, director of national intelligence in the Bush administration. Several highly classified programs and their code names are described. Subsequent chapters reveal classified reports, memorandums, conversations, programs, meetings and the like.

Woodward unquestionably received much of this information from senior government officials (just as he seemed to receive classified information from officials for his books about the Bush era). One cannot assume that the information came from the people being quoted or from the authors or recipients of documents; much of it could have come from second- and third-hand sources.

Information becomes classified when someone with authority in the executive branch determines that its revelation would cause "exceptionally grave damage" (in the case of top-secret information) or "grave damage" (in the case of secret information) to national security. Overclassification is rampant. But a great deal of the information revealed in "Obama's Wars" -- such as a "breakthrough" National Security Agency eavesdropping technology -- seems indisputably properly classified and includes things that the government should want to keep secret.

Government employees pledge not to disclose classified information, and breaches of the agreement can be enforceable by civil or criminal sanctions. Some senior national security officials can declassify information or delegate in writing the authority to declassify. It is conceivable that these officials declassified some of the information given to Woodward, but it is hard to imagine that they declassified most or all of it.

President Obama sat for an interview with Woodward for the book. He comes across in the book as circumspect, and he expressly refuses, when asked, to discuss classified information. The White House has said recently that the president did not authorize his aides to disclose classified information to Woodward. Still, because the White House clearly gave the green light to cooperate with Woodward, we should not expect a leak investigation anytime soon.

Yet even if the giant disclosures of classified information have no legal consequences, they still harm national security by delegitimizing the presidential classification system.

Director of National Intelligence James Clapper recently criticized leakers of classified information, saying that President Obama had expressed "great angst" about the bevy of leaks surrounding reported terrorist threats in Europe. Such messages are weakened, however, by the seemingly opportunistic top-level leaking reflected in Woodward's book.

The problem is not just hypocrisy. Classified disclosures from people near the top indicate a lack of seriousness about national security secrecy that inevitably influences the respect that lower-level officials give security classifications in their discussions with journalists. The secrecy system then "becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion," as Justice Potter Stewart wrote in the Pentagon Papers case.

The Woodward disclosures are especially incongruous because the Obama Justice Department is engaged in an unprecedented number of prosecutions of lower-level officials for their disclosures of classified information. An attorney for Stephen Jin-Woo Kim, one official under indictment, has said this month that Kim will challenge his indictment in light of top officials leaking classified material to Woodward. This legal strategy is not likely to succeed. But the optics for the government, to put it mildly, are not good.

Promiscuous leaking also influences the media. Government officials often disclose classified information to journalists to help further some foreign policy goal or for less attractive reasons. This practice makes the media inured to the leaks and disrespectful of security classifications when deciding whether to publish information that the government wants to keep secret. The Woodward disclosures can only confirm the media's skeptical attitude toward the government's secrecy system.

Finally, as the government frequently complains to the media when faced with unwanted leaks, these revelations will dissuade allied intelligence services from cooperating with the United States for fear that it does not keep secrets.

"The hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained," Justice Stewart noted. Woodward's book reveals a secrecy system that is truly ineffective, one that massively overclassifies at the same time that it tolerates open and selective leaking from the top about important secrets that is not obviously principled or in the national interest but that does render the system non-credible.

The writer, a professor at Harvard Law School and a member of the Hoover Institution's Task Force on National Security and Law, served as an assistant attorney general in the George W. Bush administration.

© 2010 The Washington Post Company