Keeping secrets, telling lies

While liberal pundits in the US assert their devotion to democratic principles by revelling in decrying the abuses of any tyrannical government other than their own (especially if that government is out of favour with the US) the Obama administration continues to distinguish itself as one dedicated to maintaining fear-mongering and secrecy in all matters – from the profound (its drone policy, for instance) to the trivial. 

In 1998, Warren F Kimball, the Chair to the Advisory Committee on Historical Diplomatic Documentation wrote a letter to then-Secretary of State Madeleine Albright warning of the dangers the intelligence community – particularly the CIA – posed to the integrity of historical documentation by its resisting declassification of state documents over 30 years old. 

“If sufficient documentation cannot be declassified to provide the broad outlines of those covert activities, then any US government documentary compilation about our foreign policy in situations where such activities took place will be so incomplete and misleading as to constitute an official lie.”   

In 1998, the year Kimball sounded his clarion call, the government had overseen 193 million pages declassified – a near-record high, second only to the previous year. However, just over a decade later – in 2011 – only 26 million pages, a record low, have been made available to the public. 

Encouraging declassification

The extent of the “lie” of which Kimball forewarned, but could not imagine, was in the making at the time. In 2001, the government initiated the clandestine Reclassification Program, which continued through 2006 and administered the reclassification – that is, reverting documents once declassified to classified status – of 55,000 pages. 

Matthew Aid, an expert on the National Security Agency, revealed the staggering breadth of the well-concealed Reclassification Program in 2006. Aid wrote via email to me: 

“The simple fact of the matter is that vast amounts of information that were publicly accessible prior to 9/11 now are classified ‘Secret’. It is all very sad and very frustrating.” 

Although the programme officially ended in 2006, its legacy lingers, stated Aid:

“The reclassification program is dead, but not the all-encompassing obsession with keeping even the most mundane information a secret.” 

Reclassification – and what has subsequently been called overclassification – followed a short era of government openness. In 1995, Clinton signed Executive Order 12958, triggering a government-wide push to declassify documents over 25 years old. Aid described the brief period between 1996 and 1998 as constituting an “enormous advance in transparency“. 

In addition to encouraging declassification, the 1995 Executive Order established the Interagency Security Classification Appeals Panel (ISCAP), which Steven Aftergood, intelligence expert and director of the Project on Government Secrecy at the Federation of American Scientists, described as an “unheralded success” in 2004. 

However, a 1998 “spy scandal” as well as alleged concerns that the Department of Energy had inadvertently released documents concerning nuclear secrets justified the trend toward more government secrecy. 

Today’s “penchant for excessive secrecy”, as the ACLU described the government’s irrational zeal to overclassify, has seemingly led the current administration to resurrect the Espionage Acts, described by one historian as “that unfortunate piece of wartime legislation”. The Obama administration’s resurrection of this legislation appears to be aimed at extending and expanding the government’s secrecy programme. 

In an email to me, Aftergood commented on the government’s invocation of the Espionage Acts: 

“I think the government has adopted an extreme sort of zero tolerance policy for leaks (or rather for unauthorised leaks by lower-level employees), in which every offence triggers an all-out, ‘nuclear’ response. This has become utterly disproportionate and unjust.” 

For example, James Hitselberger is the latest in a string of defendants charged under the Espionage Act for actions that, in fact, do not involve “espionage” at all. 

Specifically, Hitselberger – who is being represented by a public defender – has been charged with unlawfully retaining national defence information, thus violating a statute that has been described as “undoubtedly the most confusing and complex of all federal espionage statutes” in a 1973 comprehensive review of the Espionage Statutes in the Columbia Law Review, written by Harold Edgar and Benno Schmidt. 

A 56-year-old privately employed linguist, Hitselberger speaks Arabic, Farsi and Russian. Before joining Global Linguist Solutions in June 2011, he spent the preceding four years renovating homes in Michigan. Before that he worked as a translator in Iraq with the Titan Corporation. 

Ability to keep secrets

In September 2011, Hitselberger was assigned to work in Bahrain where he was cleared to handle classified and secret documents. In April 2012, he was observed printing classified documents and concealing them in a dictionary, which he placed in his backpack before leaving the military base. He was quickly apprehended and asked to show the documents in question. Later that day, government agents searched his home where they found more classified documents. 

The documents Hitselberger had in his possession discussed gaps in the US intelligence on Bahrain, assessments of civil unrest in Bahrain and the locations of US armed forces in the region. 

Far from siphoning secret information to foreign nations, Hitselberger is alleged to have sent classified documents to the Hoover Institute, the conservative think-tank located on the campus of Stanford University, where he had established an archive of various writings and documents collected during his time in the Middle East. 

Aftergood wrote to me: 

“Hitselberger seems to have been neither a spy nor a leaker but rather a sort of document collector. He did not have any evident political motive or financial interest, he was just a packrat.” 

Hitselberger remains in jail as his defence team moves to dismiss the charges of espionage on the grounds that the statute is unconstitutionally vague. Although past defendants of the espionage statutes have lodged similar protests against the out-of-date law, the public defenders representing Hitselberger have constructed a particularly interesting and thorough argument, according to Aftergood. 

The defence team’s argument focuses, in part, on the notion that the statute is unconstitutionally vague in its use of the word “willful”. According to the defence’s motion, while there have been legal attempts in the past to qualify the meaning of “willful” in the statute so as to require that the defendant acted in “bad faith” or with “evil motive”, in fact the legislative history suggests that the intent of the statute was that it be applied broadly, not narrowly. 

Edgar and Schmidt wrote clearly in 1973, critiquing the impossibly wide net the law cast: 

“Neither the language nor the legislative intent of the espionage statute indicates that ‘willfully’ should be given any particular narrow meaning.” 

Thus, argues the defence, such a broad statute cannot be enforced constitutionally. In their motion, Hitselberger’s lawyers remind the court: 

“The First Amendment requires that there must be ‘narrow, objective, and definite standards to guide’ criminal enforcement.” 

The motion goes on to implore the court to consider the breach of individual liberty the Espionage Acts pose: 

“A significant governmental interest must be implicated in order to justify abridging an individual’s First Amendment rights and criminalise speech, but the Espionage Act fails to identify what that interest is or how significant the injury must be.” 

But in light of the reclassification, overclassification and wonton application of the Espionage Acts, it appears the US government’s chief interest is to entrench its ability to keep secrets, not enhance democratic principles or individual freedoms from the government.

Charlotte Silver is a journalist based in San Francisco and the West Bank. She is a graduate of Stanford University. 

Follow her on Twitter: @CharEsilver