Can WikiLeaks Be Contained?

To date, the WikiLeaks website has published hundreds of thousands of previously classified U.S. government documents — detailing events from the battlefields of Afghanistan and Iraq to diplomatic cables from the U.S. State Department. As the “scandal” develops, law Professor Kathleen Clark says the U.S. government’s response seems oddly focused on quashing information that has already been made public.

Though it would appear the genie of government secrets is out of the bottle, President Obama’s Office of Management and Budget nonetheless issued a strong directive to all government employees and contractors on Dec. 3, 2010. In the directive, he stated that government employees should not view documents marked as “classified” on their work computers, which can access the web via non-classified government systems.

Smaller agencies and at least one government contractor subsequently instructed employees not to access the WikiLeaks site under any circumstances — whether at work or at home. Then, in an astounding order that was issued and rescinded in the same day, Air Force officials took an even more extreme interpretation and suggested that Americans who had already accessed the WikiLeaks website may have violated the Espionage Act.

For Clark, an expert in legal ethics, government ethics and national security law, the government’s response to the disclosures by WikiLeaks signals how deeply the government was shaken by the release of such secret documents. Clark reveals how the WikiLeaks disclosures underscore the need for even greater legal protections for government whistleblowers — but not necessarily for the reasons you might think.

Gretchen Lee: How would you characterize the U.S. government’s reaction to WikiLeaks?

Kathleen Clark: The government is aghast at the breach of its security, and it is greatly concerned about the political repercussions on the international scene.

Lee: What do you make of the Office of Management and Budget (OMB) instructions that all government employees and contractors not view any documents that are marked classified — even the documents made public by WikiLeaks?

Clark: The government has different types of computer systems; some of which are for handling classified information, and those have special security measures. Other computer systems lack those security measures, and employees are not supposed to put classified information on them. One might say there is a system of hygiene for classified information on computers, and the idea that looking at WikiLeaks documents could interfere with this system of hygiene.

Lee: But, weren’t employees also prohibited from looking at WikiLeaks documents anywhere, no matter what the computer system?

Clark: One agency, the State Department, told employees of the U.S. Agency for International Development that accessing the WikiLeaks website from any computer would be viewed as a violation of a nondisclosure agreement.

It is not at all clear how this would violate a nondisclosure agreement — how reading a document could violate an agreement not to disclose information.

Lee: So, is an instruction like that meant to be obeyed, or?

Clark: I think it is not legally enforceable, but that does not mean it won’t have any effect on people’s conduct.

Lee: Right. You certainly don’t want to risk losing your job.

Clark: Precisely.

Lee: Is anyone else prohibited from reading WikiLeaks material?

Clark: At least one government contractor purported to forbid its employees from accessing the WikiLeaks website, either on company computers or on their personal computers. And the contractor indicated that it did this in response to federal guidelines.

Lee: So, given historical perspective, should we be surprised that this was the government’s reaction? Is this a new way of responding to information that is leaked?

Clark: You know, I think it actually is. I am not aware of the government instructing personnel or contractor personnel not to access information that is already in the public domain.

On the other hand, when something is released in an unauthorized fashion, the government often asserts that that information remains classified, even though it is publicly available. The government will say the following: “We have not officially declassified it. … We have not confirmed the accuracy of it.” But that is not the same as saying, “Do not look at this!”

Lee: Yes, it’s an interesting twist, isn’t it? How did we get here?

Clark: I don’t know the answer to that. … The challenge to the government is really substantial — there has been such an enormous breach involving more than 100,000 documents. But it is not clear that the folks with good sense have really gotten in front of this unprecedented challenge. Their reaction seems to be scaremongering.

Lee: How do you determine whether information related to national security is dangerous or is not dangerous?

Clark: The executive branch asserts that only it can decide whether information is properly classified. In general, Congress and the courts largely defer to the executive branch, but not completely. There are instances where individual members of Congress have disclosed information that an executive branch believes would harm the security or foreign policy interests of the United States if disclosed.

Lee: Can you give me an example?

Clark: The Pentagon Papers. What happened is that Daniel Ellsberg tried to disclose them, by giving them to Sen. Fulbright. But Fulbright would not do anything with them, and, ultimately, Ellsberg decided to go to The New York Times.

When The New York Times started printing excerpts from the Pentagon Papers, the government obtained a temporary injunction to prevent the Times from making further disclosures pending judicial review. While that injunction was still pending, Sen. Mike Gravel of Alaska convened a meeting of his subcommittee and started reading the Pentagon Papers into the official record.

If Gravel had simply made a speech on the steps of the Capitol, or talked to other journalists about the contents of the Pentagon Papers, he wouldn’t have been cloaked with immunity under the Constitution’s Speech or Debate clause. But by doing this as subcommittee chair, he got immunity.

This is an example of a member of Congress asserting that Congress has the authority, and the ability, to assess for itself whether a particular document can be disclosed.

Lee: WikiLeaks founder Julian Assange has identified the wholesale release of the WikiLeaks documents as “scientific journalism.” Whether or not that’s true, what’s been the role of journalism when it comes to oversight of national security issues?

Clark: The press has been key in getting information to members of Congress, particularly during the Bush administration. Members of Congress indicated that they did not have information about the warrantless surveillance program that the Bush administration put in place until The New York Times revealed it.

Similarly, members of Congress did not have access to a Justice Department legal memo claiming that torture was legal until that memo was leaked to The Washington Post. Press leaks have played an important role in Congress’ ability to fulfill its constitutional role and oversight responsibilities.

Lee: What are some of the other big-picture concepts with WikiLeaks?

Clark: One thing that is really interesting about the WikiLeaks concept is this idea of distributing the information broadly as a way of achieving accountability, as opposed to the more traditional route of leaking to a few journalists and then letting them serve as a filter.

It presents quite a challenge to the government. And it seems unfortunate that some of the government agencies are not rising to the challenge.

Lee: A challenge is not necessarily a bad thing. A challenge can cause people to do the right thing or incite them to make changes for the better.

Clark: Yes, that’s right, and I think that the government is challenged, not just on this question of how to limit access to the documents that have been leaked, but also how to make changes so that it is less likely that such a massive release will occur again.

One potentially disturbing response to WikiLeaks is that the government plans to have psychologists assess whether employees are grumpy and, if so, determine whether they can be trusted with access to sensitive information, in case that grumpiness would motivate disclosures.

Lee: How does this relate to whistleblower protections?

Clark: This phenomenon shows why it is important to protect whistleblowers, so people don’t have to resort to WikiLeaks to disclose information about wrongdoing. Instead, they could make a more targeted disclosure to a member of Congress.

Lee: Where are we going from here? Are we headed in the right direction?

Clark: Someone in the government needs to start exercising some intelligent leadership in responding to WikiLeaks from a personnel security standpoint. I think the agencies are operating in a vacuum. That OMB memo was defensible, but it was ambiguous. Some government agency officials have run with the ambiguous part and then made assertions that are not supported by the law. The Air Force Materiel Command recently did that.

It may be politically toxic to say anything except, “Nobody should access these documents.” But that is an overreaction, and it is not supported by the law. If the information is available on the Web, and you and I — outside of the government — can access it, it seems ridiculous to try to prevent contractor personnel and government employees from accessing that same information too.

So, I await some sanity.

Gretchen Lee is a freelance writer based in San Francisco.