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WASHINGTON, DC - MAY 15: (EDITORS NOTE: Retransmission with alternate crop.) U.S. President Barack Obama (L) and Attorney General Eric Holder attend the National Peace Officers' Memorial Service at the U.S. Capitol May 15, 2013 in Washington, DC. Obama, Holder and other members of the administration are being criticized over reports of the Internal Revenue Services' scrutiny of conservative organization's tax exemption requests and the subpoena of two months worth of Associated Press journalists' phone records. (Photo by Chip Somodevilla/Getty Images)
Image: Getty Images

State secrets

Michael Knigge
June 10, 2013

When he took office, Barack Obama vowed to create the most open government in history. That promise is being undercut by revelations about US surveillance efforts and the administration’s tough stance against leakers.


On his very first day in the White House, President Obama sent signed memoranda to all ministers and government agencies. His government promised to establish an "unprecedented level of openness." They would all work together to "ensure the public trust and establish a system of transparency, public participation, and collaboration."

Fast forward five years, and the same administration is being pilloried for having a "secrecy fixation" and labeled an "abject failure on transparency" in the media. And yet President Obama himself in a Google Hangout appearance earlier this year reiterated his conviction that his administration was the most transparent in history. So who is right?

Real information vs. raw data

That depends on what you consider transparency, say experts working on governmental accountability and openness.

"If we are talking about the proactive release of data and information, there has been an unprecedented amount of information posted on websites and shared with the American people and the world," notes Angela Canterbury, public policy director at the watchdog group Project on Government Oversight in Washington, DC.

So if you measure government transparency by the technical release of data, as well as the launch of operational measures to improve the administrative work flow of handling so-called Freedom of Information Requests by the media, the Obama administration has made some important strides.

WASHINGTON, DC - JANUARY 08: Pfc. Bradley E. Manning is escorted from a hearing, on January 8, 2013 in Fort Meade, Maryland. Manning attended a motion hearing in the case of United States vs. Pfc. Bradley E. Manning, who is charged with aiding the enemy and wrongfully causing intelligence to be published on the internet. He is accused of sending hundreds of thousands of classified Iraq and Afghanistan war logs and more than 250,000 diplomatic cables to the website WikiLeaks while he was working as an intelligence analyst in Baghdad in 2009 and 2010. (Photo by Mark Wilson/Getty Images)
Bradley Manning is the most famous espionage caseImage: Getty Images

Keeping quiet about national security

If, however, you measure openness by the dissemination of real information about governmental conduct rather than simply data, and by policies and procedures, the Obama administration looks more like a clam than a sieve.

"Particularly when it comes to national security, which is one of the core areas of concern in the United States, they have been both secretive and aggressively controlling when things come out," says Yochai Benkler, law professor and co-director of the Berkman Center for Internet and Society at Harvard University.

While media and government transparency advocates take issue with the some concrete issues, such as the government's massive clandestine drone program, they find the Obama administration's general attitude toward transparency in the national security arena even more worrying.

"I would say the president really has grown what we would call the national security state and made the secrets there proliferate," says Canterbury. "I think we have one America that looks like a democracy and has a lot of openness in the government, and then we have this national security state. But this national security state is threatening to envelop the rest of the government."

Treating leakers as spies

As proof of the administration's quest for secrecy, experts cite the harsh tactics applied against those who divulge what the administration considers sensitive information. Since taking office the Obama administration has brought six cases under the Espionage Act against government employees accused of leaking information - twice as many as all other administrations combined since the Act was passed in 1917.

ARCHIV - ILLUSTRATION - Durch eine Lupe ist am 30.11.2010 auf der Internet-Seite von Wilileaks das Wort «Secret» zu sehen. Wikileaks wurde im Jahr 2006 als Enthüllungsplattform von digitalen Politaktivisten aus Europa, Australien und den USA gegründet. Welche Rolle der Australier Assange dabei gespielt hat, ist nicht zweifelsfrei bekannt, weil aus den Reihen von Wikileaks widersprüchliche Angaben dazu vorliegen. Foto: Oliver Berg dpa +++(c) dpa - Bildfunk+++
The Wikileaks document release rocked the USImage: picture-alliance/dpa

Now there may well be a seventh. The latest revelations about the United States' massive surveillance program were allegedly made by Edward Snowden, a former CIA employee. Snowden explained that he leaked the information because he believed the public should be informed about the extent of the surveillance. Snowden is currently in Hong Kong, and hopes to be granted political asylum.

The Espionage Act was intended to prosecute individuals for aiding the enemy. Curiously, in all six Espionage Act cases brought by the Obama administration defendants were accused of leaking information not to a foreign government, but to journalists.

While the case of Bradley Manning, charged with disseminating large amounts of military secrets, is the most famous, others are more incisive of the government's hard line against leakers. Three years ago Shamai Leibowitz, a translator working for the FBI, was charged under the Espionage Act and sentenced to 20 months in prison for leaking classified documents to a blogger. With Leibowitz pleading guilty, even the presiding judge did not know the precise information that got Leibowitz 20 months in jail.

Targeting journalists

There was also the Drake case. Thomas Drake, a National Security Agency (NSA) official, was charged under the Espionage Act with leaking information to a local journalist about two clandestine eavesdropping projects that he considered a massive waste of government money - which eventually proved to be true. After four years of investigation all ten original charges against Drake were dropped by the government in 2011. Drake only pled guilty to one misdemeanor of unauthorized use of his computer.

FILE - In this April 13, 2011, file photo, shows former National Security Agency official Thomas Drake speaking at the National Press Club in Washington. Government information leaks and collisions with the media date back decades and decades. Think back to the Pentagon Papers. Drake, who admitted to giving inside information to The Baltimore Sun about a major government electronic espionage program, was given a year's probation and community service in July 2011. (AP Photo/Jacquelyn Martin, File)
All original charges against Drake were droppedImage: picture-alliance/AP Photo

Still unfolding are at least two other instances in which the Obama administration is going after leakers - and journalists. In the AP case, the Justice Department secretly seized a large batch of phone records of AP journalists in various US cities in pursuit of a suspected leaker. And in another recent incident, the government obtained a search warrant for the private email account of Fox News journalist James Rosen who had reported classified information about North Korea.

Scare tactics

Harvard law professor Benkler sees a clear pattern in the government's behavior against leakers. With the advent of the Internet, he argues, it has not only become technically easier to distribute classified information: the rise of new media outlets has also made it nearly impossible to keep secrets.

"You can't pick up the phone up and call the New York Times and bring them in the Oval Office and persuade them to postpone publication of the NSA wiretaps by a year the way you could even seven years ago, because things will be out on the Net," says Benkler.

"And so the only place to stop this is at the source, by scaring the living daylights out of leakers and breaking up the myth of Deep Throat [the pseudonym of the Watergate whistleblower - Ed.] and Daniel Ellsberg [the Pentagon Papers whistleblower - Ed.]."

While Benkler and Canterbury believe the administration is not just overreaching in its quest to quell leaks but also undermining and potentially criminalizing the work of journalists, Rahul Sagar feels the Obama administration is getting a worse rap than it deserves.

Necessary secrets

Sagar, an assistant professor of political science at Princeton University and author of the forthcoming book "Secrets and Leaks: The Dilemma of State Secrecy" argues that one can not ignore the historical context and recognizes that today covert actions play a much more important role than they did in the last two or three decades.

"What the Obama administration is doing is dealing with a whole new world in which more has to be kept secret," says Sagar. "And their zealousness and their concerns about the most recent AP case and indeed Wikileaks are not unfounded. These are secrets that need to be kept. And the Obama administration, I think, is not doing anything particularly egregious to try and stem leaks."

For David Pozen, an associate professor of law at Columbia University, the jury is still out on what is driving the government's aggressive stance against leakers: "It's hard to tease out the causal factors. And depending on which one is driving the uptick in enforcement might give us very different answers as to whether it is going to continue or not."

US whistleblower goes public over surveillance

Legacy of leaks

Due to the government's harsh tactics and the comparatively high number of cases it has brought against leakers, coupled with the media's broad coverage of these incidents, it's easy to get the impression that in the Internet Age leaking has become the favorite past time for government employees.

Not true, says Pozen. "All evidence suggests that the rate has always been quite high, actually."

"And yet the laws against leaking are almost never enforced," notes Pozen in his forthcoming article "The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information." "Throughout US history, fewer than a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice."

Given this historical precedent and the fact that the Obama administration is paying, politically and strategically, a very high price for its behavior, Pozen doubts whether the Obama administration will continue with its aggressive pursuit of leakers.

His colleague Benkler certainly hopes so: "The idea of going criminally after leakers is to bring a very heavy hammer to a very delicate balancing job. It is essentially to try to make sure that leakers are afraid well beyond 'am I willing to give up my job for this?'"

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