The most important lesson from the release of tens of thousands of pages of classified information about the war in Afghanistan seems to be getting lost: Far too much information is classified, often simply because it is embarrassing to the government.
White House press secretary Robert Gibbs said there "weren't any new revelations in the material," and nothing has been identified that is likely to be damaging to national security. The question, then, must be why so much of this material was classified and kept from the public?
The parallel to the Pentagon Papers is striking. In 1971, The New York Times and other newspapers sought to publish a classified history of America's involvement in the Vietnam War. Because it was published in the newspapers in daily installments, the federal government went to federal court to seek an injunction to stop the newspapers from publishing more. At every level of the courts, the United States claimed that publication of the classified material would cause grave danger to national security.
Ultimately, the Supreme Court ruled in favor of the newspapers, in large part because the government never could point to material that would be harmful to reveal. Whitney North Seymour Jr., the U.S. attorney for the Southern District of New York who defended the federal government, later said he kept pressing Defense Department officials for examples of material that would be damaging to release. But they never could point to any.
The Nixon administration vehemently opposed the release of the Pentagon Papers even though the documents were largely historical material about what occurred during prior presidencies. The Obama administration has decried the release of the information about the war in Afghanistan even though it appears to be primarily about what happened during the George W. Bush presidency. The reason is the same in both cases: The administrations feared the disclosures would undermine public support for the wars in question and make it harder to gain continued congressional support.
But that is not a sufficient basis for secrecy. The disclosures about the Afghanistan war include instances of U.S. troops accidentally killing civilians, corruption in the U.S.-backed Karzai government and revelations about Pakistani assistance to Afghan insurgents. Much of the information raises questions of whether the war in Afghanistan can succeed. All of this is crucial information as Congress debates how to proceed in Afghanistan and the American people make up their minds about the war. Information should not be classified simply because it is embarrassing or its revelation might make it harder for the administration to pursue its objectives.
For democracy to work, it is essential that congressional officials and the public have exactly this type of information. This was vividly illustrated during the Bush administration. When The New York Times learned that the National Security Agency was engaging in massive illegal electronic surveillance of U.S. citizens, President George W. Bush threatened the publisher and editors with possible criminal prosecution and told them they could "have blood on their hands" if they disclosed the secret program.
When The Washington Post disclosed classified information that the CIA had illegal "extraordinary rendition" camps, the Bush administration again threatened criminal prosecution. Yet, in both cases, disclosure caused no harm to national security and caused the government to stop illegal actions.
There is information that must be kept secret for the sake of national security and whose revelation must be punished. The First Amendment and freedom of information are not absolute. For example, disclosing the identity of covert agents in the field or the location of U.S. nuclear missile sites, or revealing certain aspects of war strategy. But the Obama administration has not claimed there is anything of this sort in the recently released material.
The conclusion seems inescapable that the vast majority of this material should not have been classified. The documents' release should be the occasion, once more, for a careful reconsideration of government secrecy and ought to lead to policies that ensure material is classified only if its release truly would be a risk to national security.
The free flow of information, at times, may be embarrassing to the government and may keep it from pursuing its desired policies. But that is exactly why it is so important in a democratic society.
Chemerinsky is dean and a professor at the UC Irvine School of Law.
LOS ANGELES TIMES