In the end, it may have been the unpredictability and loss of control in the WikiLeaks case that most rattled the bureaucracy. Although the government lost both its civil and criminal cases involving the Pentagon Papers, it is remarkable in retrospect to what extent it managed to control the process at the time. In both New York and Washington, federal courts halted publication of the documents for almost two weeks—in effect granting a prior restraint on the free press—while government lawyers attempted to prove that grievous harm to national security was at stake.
The US government has seemed bewildered—helpless, really—in the face of the WikiLeaks disclosures. To seek even a temporary halt in publication by The New York Times would have been pointless, since other organizations outside the reach of the US judicial system could easily pick up the slack. Whereas it took a photocopying session followed by a plane trip to keep the Pentagon Papers moving from one newspaper to another, WikiLeaks could stay ahead of the game with just a few keystrokes on a computer.
The WikiLeaks disclosures draw attention to an important lesson: the old-fashioned notion that democracy cannot function effectively without the informed consent of the governed, which requires timely access to accurate information across a broad spectrum of official activity. That access is more threatened than ever, as the mountain of needlessly classified government documents grows daily, and the result is to increase public suspicion and weaken government’s credibility. As a commission chaired by Moynihan said in its 1997 report, “[t]he best way to ensure that secrecy is respected, and that the most important secrets remain secret, is for secrecy to be returned to its limited but necessary role. Secrets can be protected more effectively if secrecy is reduced overall.”
On the surface, President Obama urged greater transparency in government when he came into office, and at the end of 2009, he issued an Executive Order requiring outside review of agencies’ classification guidelines and forcing those who create classified documents to identify themselves openly. But because the order allows top officials to delegate those decisions to an unlimited number of subordinates, it may make government even more opaque. Ironically, Manning’s alleged massive dump of documents to WikiLeaks seems to have resulted from a post-9/11 “reform” introducing greater sharing of material among agencies in an attempt to prevent terrorism.
Good intentions and noble rhetoric notwithstanding, Obama officials have gone after more alleged leakers of government secrets than any other recent administration. Since World War II, there have been only ten criminal indictments brought under the Espionage Act for the unauthorized disclosure of classified information; half of them were initiated during the still-young Obama presidency. The likelihood of success in such cases is low—only one of those indicted has been convicted, so far—but the prospect of intimidation and suppression of public debate is high. Only cynicism can result.
Those who would create greater respect for the sanctity of properly classified information would do well to heed the words of the late Erwin N. Griswold, former solicitor general of the United States, in a February 1989 Washington Post op-ed column in which he recanted, nearly eighteen years after he had tried, on Nixon’s behalf, to prevent the continued publication of the Pentagon Papers:
It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another. There may be some basis for short-term classification while plans are being made, or negotiations are going on, but apart from details of weapons systems, there is very rarely any real risk to current national security from the publication of facts relating to transactions in the past, even the fairly recent past.