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Tuesday, July 23, 2024 | Back issues
Courthouse News Service Courthouse News Service

Before Debate, Experts Spar on Secrecy

MANHATTAN (CN) - The United States could lift its ailing economy with a jobs program declassifying state secrets, a former federal judge joked at a secrecy debate Tuesday at Fordham University Law School.

"If we tried to enact the statute that said we're going to clean it all up, I think it would create a lot of jobs," former U.S. District Judge James Robertson said. "We're just drowning in classified information."

Robertson sat on the first of four panels examining "Government, Secrecy and National Security," a daylong conference sponsored by the Center for National Security.

His co-panelists included two government attorneys who guard those secrets, including Eastern District of Virginia U.S. Attorney Neil MacBride, whose office has been investigating WikiLeaks-related prosecutions; and Kenneth Wainstein, former homeland security adviser to President George W. Bush.

Though Robertson had a radically different position from his co-panelists, MacBride called the retired judge "one of the giants of the bench."

Nominated by President Clinton in 1994, Robertson spent 16 years on the federal bench before retiring 2 years ago.

"I served for a time on the FISA [Foreign Intelligence Surveillance Act] court," Robertson said. "Most of what appears in these highly classified, top-secret documents that I've reviewed is totally banal."

He resigned without explanation from that post in 2005.

Robertson frequently quoted former Sen. Daniel Patrick Moynihan, who said, "Secrecy is for Losers" in a treatise on the subject.

Robertson said judges have little room for discretion when an anti-leak prosecution comes on their docket.

"These cases demonstrate, if anyone needed demonstration, that the use of prosecutorial discretion is needed," Robertson said.

Robertson said the Patriot Act turned FISA judges into "potted plants."

MacBride insisted that restraint is built in, because prosecutors often balk at pursuing anti-leak prosecutions, to avoid disclosures that come from public trials.

The second panel, "Secrecy and its Many Meanings," featured Martin Lederman, allegedly the author of a secret memo authorizing the drone killing of the U.S.-born radical cleric Anwar al-Awlaki, moderating a discussion with pro-transparency advocates.

One panelist was Ben Wizner, director of the Speech, Privacy and Technology Project at the American Civil Liberties Union, which fought to expose the legal memos that Lederman reportedly hoped to keep under wraps.

Lederman framed the discussion on what he called the necessity of secrecy to protect sources and methods and honor promises of "non-acknowledgement" that the United States makes with countries and companies with which it cooperates.

Wizner said this arrangement risks falling into a "rule of impunity."

"Sometimes we shouldn't be making those promises in the first place," Wizner said.

Steven Aftergood, director of the Government Secrecy Project, said he had no trouble getting government officials to talk about programs before the Sept. 11, 2001 attacks.

"The wall between government and the public, and maybe it's a moat, was being raised," he said.

Congress has encouraged, rather than restrained, the "record number" of leak prosecutions, Aftergood said.

"Transparency doesn't emerge because nice Executive Branch people decide we want to be open with the people," he said. "It happens because of friction between branches of the government."

Instead of pushing back, Congress cheered on Obama's six prosecutions against disclosures of classified information under the Espionage Act, twice the number of cases than had been pursued by all other U.S. presidents.

"If this is oversight, it's not what we need," Aftergood said.

In a speech from the Ecuadorean Embassy in London, Wikileaks founder Julian Assange called these prosecutions a "war on whistleblowers."

David Pozel, a former adviser at the State Department, downplayed the prosecutions as "more of a special operation."

He noted that the Willard report, published in 1982, found that "the unauthorized publication of classified information is a routine daily occurrence in the United States."

The vast majority go unprosecuted because both parties have "blessed the status quo" and "feel adequately served by our leaky system," Pozel said.

The issue of government secrecy did not arise during the Tuesday night presidential debate.

Pozel sat on the panel, "Leaks and the Public's Right to Know," moderated by New York Times general counsel David McCraw, and dominated by WikiLeaks-related discussions.

"WikiLeaks became an inkblot, a Rorschach test for what you cared about," McCraw said.

He recounted a lecture he gave in China, explaining how the Times weighed disclosure with U.S. national security considerations, when a professor challenged the paper's procedures.

"Did you call the Taliban to find out about whether you'd reveal their secrets?" the professor asked, according to McCraw. "If you are really an independent medium, why are you taking sides?"

Reporter Scott Shane, one of the panelists, reported on the WikiLeaks-released cables for The New York Times.

Shane said it "would be two-faced" for him to condemn Pfc. Bradley Manning, the 24-year-old soldier charged with providing documents that allegedly fueled his stories.

Harper's reporter Scott Horton, seated next to Shane, denied that Manning was a whistleblower.

"I think a whistleblower is disclosing specific information that is disclosing a wrongdoing," Horton said. "What Bradley Manning was doing was just global."

That put him at odds with Pentagon Papers whistleblower Daniel Ellsberg, a prominent Manning supporter, an audience member said.

Horton replied that he disagreed with Ellsberg, and said he felt that the "disclosure reaped more benefits than harms to the United States" by documenting good motives of many diplomats.

He said he felt that Manning was being "demonized" for security breaches above him.

"Who authorized him to have all that access?" Horton asked. "Someone doesn't want to have us ask and explore certain questions."

The organizer of the event, Karen Greenberg, led a final panel on how secrecy concerns will be handled in the future.

The government lawyers on the panel, former FBI Investigator General Glenn Fine and former CIA lawyer John Rizzo, said the "pendulum" had swung in favor of disclosure.

"No one's going to prosecute a journalist, a U.S. journalist," Rizzo said. "It's just not going to happen."

Steven Vladeck, a professor at American University, disagreed, saying that the "net result has been less information to the public."

Vladeck said the status quo relies on prosecutors to avoid bringing forward too many cases that will chill the press.

"Political constraints are only as good as the politics of the moment," Vladeck said.

Rizzo said, "Rest assured, there are still a lot of secrets that are secret."

"Such as?" Vladeck asked.

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