vi. These estimates are for documents classified top secret or lower: excluding the much smaller but still very large volume of "codeword" material, the "special compartmented information" such as communications intelligence and covert operations mentioned below, end-note ii.
vii. Moreover, information within what might realistically be called "the real secrecy system" higher than top secret- the world of "sensitive compartmented information" (SCI) and "special access programs" (SAP's), including covert operations and communications intelligence-is only rarely leaked at all. That is true even when, on occasion, it urgently deserves to be exposed: like the illegal NSA warrantless wiretap programs by-passing the FISA court between 2001 and 2005, or the deceptive use of NSA intercepts to mislead Congress over the Tonkin Gulf incidents. And it can be held securely (and, as in the latter case, wrongly) for decades; see National Security Archive, Electronic Briefing Book #132 update, "Tonkin Gulf Intelligence "Skewed" According to Official History and Intercepts," December 2005.
viii. Likewise, in view of the prosecutorial and judicial trend to interpret certain paragraphs of the Espionage Act as equivalent to a broad Official Secrets Act--the Obama DOJ has brought seven such prosecutions, compared to three earlier-those paragraphs, 18 U.S.C. (d) and (e) should be repealed. (As I said, I am indulging in utopian thinking here.)
On the trend and its highly problematic (and regrettable) nature, see the two major academic surveys of the legal and constitutional issues by Harold Edgar and Benno C. Schmidt, Jr.: "The Espionage Statutes and Publication of Defense Information," Columbia Law Review, Vol. 73, No. 5, May 1973, pp. 930-1087; and their updating, "Curtiss-Wright Comes Home: Executive Power and National Security Secrecy," Harvard Civil Rights-Civil Liberties Law Review, Vol. 21, No. 2, Summer, 1986, pp. 349-408. Also for background, to see how far we have come (fallen): Melville B. Nimmer, "National Security Secrets v. Free Speech: The Issues Left Undecided in the Ellsberg Case," Stanford Law Review, vo. 26, No. 2, January 1974, pp. 311-33. (As a leading scholar of law of information, Nimmer concluded (p. 312) based on then-prevailing interpretation of the Constitution and legal precedents-contrary to all lay intuition including mine- "the statutes Ellsberg was charged with violating either cannot be interpreted to make criminal his conduct or, if so interpreted, are unconstitutional." That cannot still be asserted positively, alas, after the last quarter century of court rulings, though the Supreme Court has not yet addressed the issues directly.
For enlightening background on current Congressional interest-mainly Republican, but encouraged by administration concern over Wikileaks disclosures-see Jack Nelson, "U.S. Government Secrecy and the Current Crackdown on Leaks," The Joan Shorenstein Center on the Press, Politics and Public Policy Working paper Series, #2003-1, Fall 2002.
ix. For full discussion of the need for this explicit affirmation on secrecy agreements, its possible effects and the actual effects of the lack of any such provision in secrecy briefings and understandings, see Daniel Ellsberg, "Are Secrecy Oaths a License to Lie?" Harvard International Review, Summer, 2004.
x. I saw this directive for the first time in a visitors' waiting room of the La Tuna Federal Prison in 1971 (though it states that it was supposed to be displayed in every federal office). I was waiting to visit my friend Randy Kehler, who was in prison for his non-cooperation with the draft which had inspired me a year earlier to copy the Pentagon Papers, not then yet released. As a long-time federal employee and consultant, the notion that it had been my legal obligation to put loyalty to something, anything-specifically, to moral principles, country, the Constitution -above loyalty to Government persons (one's boss! The President!), party, or department-struck me as a revolutionary principle: which, as it happened, I was in process of belatedly enacting. If I had been made seriously aware of such a responsibility when I entered federal employment in August, 1964, might I have considered informing Congress then that my president was lying them into war that month? Instead, I got around to it seven years later, around the time I read the notice.]
Originally published at Huffingtonpost.com
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