Billions of Secrets to Betray

Managing state secrets is never anything short of a headache. In the United States, it has reached enormously difficult proportions. Trying Assange for treason will not create any solutions.

In 1994, the United States Senate appointed a bipartisan commission to protect governmental secrets while reducing their spread. It was supposed to examine the processes of classifying information and suggest ways that they could be adapted. The federal budget was one interested party: Declassification demanded full-time service and high costs for only a smattering of results. In the CIA alone, 230 to 300 people worked on these requests, each of which required 280 days of work, at the rate of $2.87 per examined page. This didn’t include special requests of a delicate political nature, like the assassination of nuns in El Salvador, the disappearances in Guatemala and everything having to do with Latin America in the 1970s and 1980s. These became subject to declassification more and more frequently.

The president of this commission, Daniel Patrick Moynihan, presented the commission’s unanimous conclusions in 1997, saying: “Secrecy is a form of governmental regulation. […But c]lassification should proceed according to law; classifiers should know that they are acting lawfully and properly. We need to balance the possibility of harm to national security against the public’s right to know what the government is doing, or not doing. We should establish by statute that secrecy belongs in the realm of national security and must serve that interest alone.”* Moynihan denounced a bureaucracy enclosed in a “secret culture” which allowed it to increase its own power.

Thus, the United States had more than 1.5 billion pages of classified material at least 25 years old. Each year, 400,000 new “top secret” documents have been created; according to U.S. law, divulging them could cause “exceptionally grave damage” to national security — basically, a mess. President Clinton had all documents older than 25 years declassified, save any exceptional requests to the contrary.

Like most countries, the United States has the eternal nagging concern of managing the state’s information. A centralization and redistribution to senior administration seemed like a good, reasonable solution when calls were made for transparency in the 1990s and 2000s. But it was this centralization itself which allowed PFC Manning to plug directly into the source and transfer all his findings to WikiLeaks. So we must reopen the books and address this problem anew.

In the context of this harassment, some American authorities think it would be clever to demand the conviction of those responsible for WikiLeaks under espionage law. No judicial officials have yet offered any definitive opinions on such an accusation’s feasibility. There is a high risk of stirring up waves of indignation throughout the country by clashing with the First Amendment, which guarantees the freedom of opinion and of the press.

In June of 1917, the American Congress adopted the Espionage Act, two months after entering the war against Germany, to prohibit anti-patriotic political protests. Under this act, it became illegal to distribute information that would undermine the American war effort. Any hint of insubordination, mutiny, or desertion became punishable by fine or imprisonment. The Postmaster General’s office invested itself in the right to refuse to accept any publications that ran against national interest, a right which it zealously carried out all throughout the vast national network. It was left to local prosecutors to implement the law, which opened it up to widely varied interpretations.

This act was called upon countless times within the context of the war. Its most famous victim was Eugene Debs, the president of the Socialist Party who ran for election to the White House multiple times. He was imprisoned in 1918 for the obstruction of recruitment efforts.

The Espionage Act was sent to the Supreme Court in 1919 under a question of its constitutionality as part of the appeal of Charles Schenck, a socialist militant arrested and convicted in 1917 for having distributed anti-draft pamphlets. The justices were divided. One of them, Oliver Wendell Holmes, finally tipped the scales in favor of the conviction, but specified that freedom of expression could not be suppressed except in case of a “clear and immediate danger” to governmental operation.

Since then, much has been written on this recorded legal precedent of “clear and immediate danger.” In 1927, Justice Louis Brandeis declared that only “critical circumstances” could justify the repression of freedom of expression, recognizing that the Founders had not “revered order at liberty’s expense.” He added that Americans “always have the liberty” to dispute the veracity of the aforementioned circumstances.

The question of knowing how exactly WikiLeaks will endanger the American government has a long history affecting it, with national loyalty always playing a role. Any charges pressed by the Pentagon on Assange may give overzealous patriots the impression that a simple insult could be recognized and punishable by law. However, they could also serve to add to the shambles begun in the Clinton era that is the “secret culture.”

*Translator’s note: Quotation is not an exact translation from the French; instead, it comes from Moynihan’s testimony, as recorded here: http://www.fas.org/sgp/congress/hr050797/moynihan.html. The French article’s source text was not an exact translation of any passages in the testimony. Thus, I have taken the liberty to select passages similar to the French article’s source text from paragraphs 3 and 17 of the testimony.