Too many secret government documents, former DOJ official says

Posted by Marisa Taylor on October 9, 2013 

Kenneth Wainstein,a former federal prosecutor, is advising the Obama administration on what government documents should remain classified.

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Snowden broke law, but leak forced "reappraisal" of secrecy

As the first appointee to head the Justice Department’s National Security Division, Kenneth Wainstein once weighed whether to indict suspected terrorists, spies and leakers of classified information. Now, the former federal prosecutor will be advising the Obama administration on what the government should keep secret and what it should declassify. McClatchy talked to him about his recent appointment to the Public Interest Declassification Board and about the prosecution of government employees who spill secrets.

Q: With the NSA revelations, many Americans have mixed feelings about Edward Snowden’s leaks and worry that the government is classifying too information. Do you acknowledge that there’s a growing mistrust of the classification process? If you see that, what do you make of it?

A: I don’t know that there’s a growing mistrust. There’s an inherent tension in our government. Our democracy is built on transparency, on the notion that the public gets to decide how the government operates. But there is segment of government operations that necessarily must remain secret to remain effective and that’s just the fundamental tension. The classification program is one way of balancing that tension and it tries to calibrate those two values – the need for transparency with the need for secrecy and that balance is never going to be struck absolutely perfectly. The question is whether the balance that has been struck by the classification program needs to undergo a more fundamental shift or a smaller refinement or somewhere in between.

Q: How do you feel about it?

A: You mentioned mixed feelings about Snowden. I don’t think there should be any mixed feelings about whether what he did was a crime. In my view, you can be very strongly in the pro-transparency camp and the declassification camp but still believe that leaking things without authority is not the right way to do it. That’s where I believe the responsible voices are on this issue.

A by-product of this leak is that it has forced a reappraisal of the classification system and the extent to which the government can educate the public about its classified programs and do so in a way that won’t compromise sources and methods. The problem is doing it in practice. It’s very difficult with some of these programs because it doesn’t take much disclosure to undermine their effectiveness.

Q: Steven Aftergood, who runs the Federation of American Scientists’ Project on Government Secrecy, described you as “an honorable public servant,” but “not the first or second person most people might think of to help advance ‘public interest declassification.’” Do you have a role in what he calls “public interest declassification”?

A: Absolutely. I come to this job with an understanding of our intelligence operations and the need for secrecy for those operations, but also an appreciation for where there could be more disclosure about programs without compromising them. I see that as my mandate – to advance both of those objectives.

Q: While you were in government, did you ever become frustrated because you felt certain information should not be classified?

A: There’s no question that overclassification is a problem. That’s an inherent problem in the system. I saw things that would get classified that didn’t need to be, not because anybody was being malicious or anybody was doing anything for nefarious reasons, but because of the human aspects of the system.

Q: In your experience, what was the reason for documents being classified that perhaps shouldn’t be?

For example, when you write a memo, there are going to be data points that are classified and data points that aren’t classified. Not everything in the document is going to be classified. The easier thing to do is to classify the whole document. In theory, it would ideal to have a system where every sentence is parsed out, right? But that’s hard to do when you look at the volume of information that’s being generated especially post 9/11. It’s just impossible to go through and classify every piece within every document. As a result, you get stuff that’s overclassified at the front end. It’s safer to classify something than to not classify something.

Q: What role should the prosecution of media leaks have in this debate over what should be declassified and what’s in the public’s interest to know?

A: If you’re a government employee who is entrusted with classified information, you’ve got an obligation to protect that information. You’ve agreed to protect it and you have to protect it. Prosecutions are ways of deterring people from breaking those obligations. That’s a distinct issue from declassification.

But when it comes to leak prosecutions, it’s not black and white. In fact, unfortunately, it’s quite gray. That’s why there’ve been so few brought, even though at any given time there might be a lot of leak investigations going on. You have to look at a lot of different variables when deciding whether to prosecute a leak case: the damage that was done by the leak, the intent of the leaker. If someone was leaking for money, that would probably be looked at differently than someone who was leaking for what he or she thinks is a patriotic motive. As a prosecutor, you look at a lot of different things. Sometimes it’s an evidentiary issue – whether the evidence is sufficient and whether you can get the evidence in, given how classified it is.

Q: Do you weigh the public’s interest in the information that was leaked and whether it served the public good? For example, would you weigh whether Snowden’s actions triggered a broader debate about classified programs that the public should have known more about?

A: I think prosecutors would look at the intent of the leaker and what that person was intending to do.

But you wouldn’t have consensus that (the Snowden leak) was the best way to bring about this debate and that there hasn’t been damage. Just last week, for example, there was talk about how al Qaeda has shut down some of its communications because of a leak. I wouldn’t say it’s a given that it’s in the public interest that these disclosures are out there.

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