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Jack Goldsmith's Washington Post Op-ed echos (without credit) Michael Isikoff's recent piece by highlighting the double standard of Obama's position on leak prosecutions in light of the national security information revealed in Bob Woodward's new book, Obama's Wars.

However, Goldsmith's take misses in one major way with the argument that  

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

Goldsmith overlooks that what delegitimizes the value of classified information is over-classifying volumes of information that have nothing to do with national security and everything to do with covering government misconduct, not the leaking of information within the public interest.

While Goldsmith does recognize that over-classification is a problem, his argument falls short because it is the over-classification, not the leaking, that undermines the classification system and endangers national security.

In his conclusion that high-level leaks undermine the classification system, Goldsmith fails to mention the case of Thomas Drake, which involves a leak that was clearly in national interest and clearly did no harm the United States.  Whistleblowers now subjected to Obama's record-breaking war on leakers, such as Thomas Drake, protect national security by disclosing government wrongdoing.

Goldsmith's argument suggests that Obama's clamp down on leaks would be better if all leaks (including those in Woodward's book) were equally investigated and all leakers equally prosecuted.  However, the double standard of Obama's position on leaks on is not faulty for letting high level leakers off the hook, but for prosecuting whistleblowers like Drake, Shamai Leibowitz (the FBI linguist sentenced to 20 months in prison for giving classified information to a blogger), Steven Jin-Woo Kim (the state department official accused of leaking North Korea's nuclear activities). As I noted when Isikoff released his piece:

Of course, the answer is not to prosecute all "leaks" but to clearly distinguish between leaking (when [George W] Bush officials revealed [Valerie] Plame's name) and whistleblowing (when Thomas Drake went through proper channels to disclose government waste).

Over-classification, in particular the classification of illegal or embarrassing government conduct - not leaking - is the real problem plaguing our classification system. And Obama's "war on leakers" undermines not just the classification system, but our entire democracy, by prosecuting whistleblowers who bring government wrongdoing to light.  

Originally posted to Jesselyn Radack on Fri Oct 22, 2010 at 05:50 AM PDT.

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Comment Preferences

    •  What does Goldsmith mean by: (0+ / 0-)

      "presidential classification system" (emphasis added)?

      If you are older than 55, never take a sleeping pill and a laxative at the same time!

      by fredlonsdale on Fri Oct 22, 2010 at 06:23:04 AM PDT

      [ Parent ]

      •  Presidents (including Obama) (2+ / 0-)
        Recommended by:
        Garrett, Terra Mystica

        have pretty consistently argued that the executive branch should have exclusive control over classified information.

        The Canary in the Coalmine is available for purchase at

        by Jesselyn Radack on Fri Oct 22, 2010 at 06:31:20 AM PDT

        [ Parent ]

      •  Executive Orders frame the system. We don't have (1+ / 0-)
        Recommended by:

        an "official secrets act" as does the UK. The law on secrecy is very general and requires a very high level of both intent to damage and proof for criminal prosecution. Most of the "teeth" in our secrecy framework is the Executive Branch as "employer" rather than wearing the law enforcement hat. That system has advantages and disadvantages when compared to the very official legal systems in some allied countries.

        There is much more likelihood of truly egregious misbehavior being exposed in ours than say in the UK where the Official Secrets Act has sharp teeth, even for a reporter stumbling on something; there is no D Notice here. I consider that an advantage, excepting where something that really should be secret is exposed. In the past we have relied on "responsible journalism" to protect such. We don't seem to have much of that left so there is an actual risk.

        A disadvantage is whipsawing E.O. standards depending on the Chief Executive and increasingly the party from which that person comes. Clinton cured some long standing problems with over classification, overly long classification and before the actual actions could be completed Bush went the opposite direction with some ridiculous attempts to close stable doors after horses were galloping all over the countryside.

        The author is correct. Almost nothing weakens the system more than over classification and, in my opinion, poorly thought out original classification by the originating authority. When people handling such material constantly see some pretty insane things without any logic, at least in current conditions, then there is an inevitable sense that it really is not all that important. It is the old counterfeit scenario where the bad devalues the good.

        As with so much else we do not take an analytical systems approach to the problem. There is far too little analysis up front on precisely what is being protected and what elements must go into its protection. Sometimes the original guidance puts a vault door on a room with drywall for sides. In others it builds a vault for a Crackerjack toy. Then we allow far too much political intrusion into what should be a carefully constructed protection for the things that really do need to be protected--and, contrary to some opinions I see here, there are some things that must be protected at least for a time.

        The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

        by pelagicray on Fri Oct 22, 2010 at 08:19:55 AM PDT

        [ Parent ]

  •  Are there legal penalties? (2+ / 0-)
    Recommended by:
    tle, allenjo

    I don't know classification law, but it seems to me that there should be legal penalties for making the decision to classify someone else's law breaking behavior - accessory after the fact?

  •  Daniel Ellsberg (3+ / 0-)
    Recommended by:
    lysias, CitizenOfEarth, allenjo

    was charged with espionage, conspiracy and theft, and faced a sentence of 115 years in prison. A judge dismissed all charges because the government illegally wiretapped his phone and burglarized his psychiatrist's office.

    Government wiretapping and burglarizing are now legal under The Patriot Act.

  •  the point is, as always... (3+ / 0-)
    Recommended by:
    tle, Terra Mystica, allenjo

    How can there be meaningful oversight of government action by the public when the government keeps secrets from the public? Isn't it the power to keep secrets itself that undermines our democracy, not merely the (guaranteed) abuse of that power.

    Of course, (one dains to argue, dain dain... ) a subsequent elected government may declassify the secrets, and perhaps even prosecute.. but then again, why would they? Indeed if we can't even see to the later prosecution of aiders and abettors of TORTURE, what oversight is demonstrated to lie in a subsequent government?

    So, did our foundling fathers miss a trick by failing to establish a fourth branch to oversee the other three branches?

  •  That's a separate issue (0+ / 0-)

    I mean, it's a fine policy argument and I might even support you, but it doesn't bear on the guilt or innocence of any of the people you defend in your diaries.  I doubt it's a legally cognizable defense against a charge of leaking classified information to say it shouldn't have been classified.

    The most impressive thing about man [...] is the fact that he has invented the concept of that which does not exist--Glenn Gould

    by Rich in PA on Fri Oct 22, 2010 at 07:05:09 AM PDT

  •  Unfortunately there is no legal penalty (0+ / 0-)

    for over-classifying documents (correct me if I'm wrong). So the modus operandi of crooked politicians will be to Over-classify everything so it is never seen by public eyes.

    Talk about enabling the crooks.

    It's funny that Bush didn't seem to understand that. Of course, Bush's solution was to send Karl Rove to the White House basement to wipe the WH email severs clean. "Opps, our emails up and disappeared, like a fart in the wind."

    But your flag decal won't get you Into Heaven any more. They're already overcrowded From your dirty little war. - Flag Decal, John Prine

    by CitizenOfEarth on Fri Oct 22, 2010 at 07:25:48 AM PDT

  •  I think the problem with secrecy is secrecy. (5+ / 0-)

    I have come to question just what these bastards are hiding.  I advocate open and honest government...for a damned change.  What would be the outcome if we dropped all the government secrecy crap?  Would the commie-islamofascists eat us in our sleep?

    I think the outcome would be government that works and actually serves the people.

    These secrets are not good.  WTF are they hiding?  And who are they covering up for?

    •  More likely (2+ / 0-)

      we'd discover proof that the capitalist-corpro-fascists are indeed eating us alive, even as the opiates of the MSM keep us contently sedated.

      But your flag decal won't get you Into Heaven any more. They're already overcrowded From your dirty little war. - Flag Decal, John Prine

      by CitizenOfEarth on Fri Oct 22, 2010 at 07:35:01 AM PDT

      [ Parent ]

    •  You really think we should publish a "how to" (0+ / 0-)

      on certain weapons? Really want the consequences of "Hi people, we are going to move some personnel along this route tomorrow" so prepare your explosives? Really think it is a good idea to publish the name and photo of an undercover agent? If you do you are obviously one of those people ideologically so opposed to reasonable classification that discussion is hopeless.

      If so, I'd like to get your take on being placed in a situation where your ass is on the line and being protected by some cover of classification. In a sense it is on the line as some classification is helping keep things out of the hands of those seeking to harm our society.

      The red herring of "political secrets" is often thrown out here and gained credence with Bush's insane policies that discredited legitimate secrets while engaging in little things like exposing Valerie Plame. Let's take that one and the Bush defenders take.

      She had been undercover on nuclear proliferation matters, talking with foreign sources in social settings among her duties. She is alive and well. Consider some of her sources, those from places with a take no prisoners approach. We do not know and may never know if any were faced with "You were often seen talking to that woman" by people you would not want to spend fifteen minutes with in an "official" way. Her "cover" was not just for her. Blowing that, even years after the activity and even the lifetime of some of her "sources" could have very nasty consequences for living, maybe not now, humans.

      The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

      by pelagicray on Fri Oct 22, 2010 at 08:34:16 AM PDT

      [ Parent ]

  •  Started with Reagan (1+ / 0-)
    Recommended by:

    The problem has other important ramifications--scientific research, for example, being classified that shouldn't be. This is an impediment to progress.

    "Grab a mop!" --the President.

    by sillia on Fri Oct 22, 2010 at 07:35:35 AM PDT

  •  Anyone who releases that many documents (0+ / 0-)

    should be tried for treason. There's whistleblowing, then there's actively undermining the public trust. 400,000 documents with a SECRET classification is not whistleblowing.

    Good policy is good politics

    by AZ Independent on Fri Oct 22, 2010 at 07:54:58 AM PDT

    •  As the diary says, (2+ / 0-)
      Recommended by:
      lysias, CitizenOfEarth

      the Problem With Secrecy is Over-Classification Not Leaks.
      In the 75000 documents previously released by Wikileaks, no harm was shown to have come of it. Contained in the documents was plenty of evidence of real crimes, none of which seem to subject to any investigation. Only the "crime" of passing on this information gets any attention. That is the violation of public trust.

    •  ok and anyone presecuting pointless wars (2+ / 0-)
      Recommended by:
      lysias, artisan

      to enrich the MIC should also be tried for treason. Oh that's right, running wars to enrich corporations is legal. Never mind.

      But your flag decal won't get you Into Heaven any more. They're already overcrowded From your dirty little war. -- John Prine (also flag lapel pins)

      by CitizenOfEarth on Fri Oct 22, 2010 at 08:16:16 AM PDT

      [ Parent ]

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