Documents, Leaks and the Boundaries of Expression: Government Whistleblowing in an Over-Classified Age

A slightly shorter version of this article was first published in 35 DttP 30 (2007). Reprinted with permission. © Susan Nevelow Mart, 2007.

 
       You are working in a government agency library or archive. An agency employee asks you to locate and deliver some reports that were prepared ten years ago on a highly sensitive environmental matter. The reports are marked “sensitive security information.” The reports happen to be on a matter that interests you, and you read them. Several reports discuss the actual location of an endangered species habitat. You read that, in addition to the tiny endangered animal, there is nuclear waste on the site. The reports are returned, and you decide to take another look at an especially interesting one. To your amazement, you discover that the location of the habitat has been altered and the references to the existence of nuclear waste have been changed.

     Although this scenario is imaginary, it does not stray that far from the realm of the possible. The Bush Administration did in fact replace explicit language on the dangers of global warming in a 2003 Environmental Protection Agency (EPA) report with language that was “vague and disingenuous about the scientific causes of global warming.”1That fact was made public by EPA employees.2 A whistleblower at the Federal Bureau of Investigation has accused employees of falsifying documents relating to his claims of officially sanctioned violations of citizens’ constitutional rights.3 If dedicated researchers had not made a public outcry, no one would know the story of the clandestine reclassification of over twenty-five thousand documents at the National Archives and Records Administration (NARA) pursuant to secret memoranda of understanding. 4

 
       What you should do when you discover wrongdoing while you're working for the government is partly, of course, a matter of conscience and proof. But the protections you have from retaliation if you blow the whistle on fraud, waste, deception, or other violations of the law vary. It makes a difference who your employer is, what has been uncovered, and what kind of documents are involved. It’s never easy to make the decision to be a whistleblower.5 But only insiders are in a position to expose wrongdoing, fraud, failure, or mismanagement. Daniel Ellsberg, famous for releasing the Pentagon Papers in 1971, recently wrote in the Federal Times:  
  It is a time for unauthorized truth-telling... We cannot rely on the media to tell the truth without your help. Some of you have documentation of wrongly concealed facts and analyses that are vital to a genuine public debate regarding crucial matters of national security, whether foreign or domestic.6    
       Some members of Congress agree. Representative Christopher Shays, at a Committee on Government Reform hearing titled National Security Whistleblowers In The Post-September 11th Era: Lost In A Labyrinth And Facing Subtle Retaliation, stated:  
  All Federal employees are ethically bound to expose violations of law, corruption, waste, and substantial danger to public health or safety. But meeting that obligation to "blow the whistle'' on coworkers and superiors has never been easy. Breaking bureaucratic ranks to speak unpleasant and unwelcome truths takes courage and risks invoking the wrath of those with the power and motivation to shoot the messenger. … The use of expansive executive authorities demands equally expansive scrutiny by Congress and the public. One absolutely essential source of information to sustain that oversight: whistleblowers.7    
      There is a fair amount of agreement among experts with disparate political backgrounds that excessive secrecy is actually a danger to national security. At the most basic level, law enforcement agencies need access to information to solve the crimes of terrorism. Retired FBI agent Richard Marquise, speaking to law enforcement officials about solving the bombing of Pan Am Flight 103 over Lockerbie, Scotland, said that “Pan Am 103 didn’t get solved because we were really good. It got solved because people finally sat down and said let’s share information. The 9/11 Commission wrote that “only publicity” could have “derailed the attacks,” citing a statement by the terrorists’ paymaster that had the terrorists known that Zacarias Moussaoui had been arrested at a flight school in Minnesota, bin Laden would have called off the attacks.”    
       Another reason information needs to be freely accessible is that access to all of the relevant information means both a better pool of information for decision-making and less ability to ignore the full weight of unpleasant or contrary information, which can have a disastrous effect on decision-making. One of the most famous examples of this also involves a whistle-blower: the Morton Thiokoll engineer who warned his bosses that the space shuttle Challenger was not ready for launching. The management ignored his warnings, and NASA officials, with serious financial and political reasons to proceed, accepted management’s decision.10  
       The Challenger was launched and the engineer’s predictions came trued: seven people, including school teacher Christa McAuliffe, died.11 The public, and Congress, were unaware that there had been scientific dissent until the post-crash investigation.12 This type of decision-making, where the decision makers are insulated “from external forces that would challenge the prevailing view” and where the “collective predisposition” is corrosive to critical analysis is called groupthink.13” The Senate Intelligence Committee has suggested that groupthink contributed to the flawed decision making that led to the recent invasion of Iraq.14   
       Part of the problem with access to government information, both to the public and to governmental decision-makers, is that too many documents are classified and therefore not available for public airing. We live in an era of rampant classification. In 2005 hearings before the House Committee on Government Reform, the estimates for the amount of over-classification ranged from the Pentagon’s estimate of 50%, the Information Security Oversight Office’s estimate of 60%, the 75% estimate of the chair of the 9/11 Commission, to the 90% estimate made by the National Security Council Executive Secretary under President Reagan.15  Erwin Griswold, who was the Solicitor General of the United States in the 1970s and the counsel for the United States in its efforts to suppress the Pentagon Papers, had this to say about excessive secrecy:  
  It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but with governmental embarrassment of one sort or another. There may be some basis for short-term classification while plans are being made, or negotiations are going on, but apart from details of weapons systems, there is very rarely
any real risk to current national security from the publication of facts relating to transactions in the past, even the fairly recent past.
16
   
       Over-classification is just one part of the problem. Fewer documents are being declassified.17 And the increasing use of pseudo-classification has put untold numbers of government documents out of easy reach of the public or other government personnel who might need the information for decision-making. Pseudo-classification is the practice of labeling documents with such terms as “sensitive but unclassified (SBU).”18 This type of classification is flag to agency employees responding to FOIA requests or to inter-agency requests for information to deny access, as the Department of Justice has made clear:  
  agencies maintain and control sensitive information related to America's homeland security that might  not meet one or more of the standards for classification set  forth in Part 1 of Executive Order 12958. The need to protect such sensitive information from inappropriate disclosure should be carefully considered, on a case-by-case basis, together with the benefits that result from the open and efficient exchange of scientific, technical, and like information. All departments and agencies should ensure that in taking necessary and appropriate actions to safeguard sensitive but unclassified information related to America's homeland security, they process any Freedom of Information Act request for records containing such information in accordance with the Attorney General's FOIA Memorandum of October 12, 2001, by giving full and careful consideration to all applicable
FOIA exemptions. (emphasis added).19
   
       The number of types of SBU has increased exponentially. One agency alone – the Centers for Disease Control - has twenty-seven categories of SBU.20 And there are over fifty SBU classifications in use by a wide range of agency officials.21 The problem is enormous. A recent report, Pseudo-Secrets: A Freedom of Information Audit of the U.S. Government's Policies on Sensitive Unclassified Information, found that not one federal agency reports on the use or impact of sensitive unclassified information policies, that 29% of the agencies reviewed, including the Department of Homeland Security’s (DHS) 180,000 employees, allows any employee to mark a record as SBU, and that all but eight agencies implement their policies without either statutory authorization or administrative rulemaking. 22  
       When National Security Archive director Thomas Blanton released the report to the House Subcommittee On National Security, Emerging Threats, And International Relations, he testified that:  
  The bottom line is of all this, I think you can conclude by the diversity of policies and the lack of coordination and the lack of any kind of commonality, the decentralized nature of the administration, I think neither Congress nor the public can tell for sure whether these kind of markings and safeguards are actually protecting our security or being abused for administrative convenience or cover-up. That is the bottom
 line.
23
   
       Non-partisan research supports the conclusions reached by the National Security Archive’s audit The Government Accountability Office (GAO) looked at how twenty-six federal agencies handled SBU information in a 2006 report titled Information Sharing: The Federal Government Needs to Establish Policies and Processes for Sharing Terrorism-Related and Sensitive but Unclassified Information, and concluded that the agencies are using different SBU designations:  
  …to protect information that they deem critical to their mission … For most designations there are no governmentwide policies or procedures that describe the basis on which an agency should assign a given designation and ensure that it will be used consistently from one agency to another. Without such policies, each agency determines what designations and associated policies to apply to the sensitive information it develops or shares. More than half the agencies reported challenges in sharing such information.24    
       The Congressional Research Service, the public policy research arm of the Congress, released a report titled “Sensitive But Unclassified” Information and Other Controls: Policy and Options for Scientific and Technical Information, noted that federal agencies don’t have: “uniform definitions of SBU or consistent policies to safeguard or release it, raising questions about how to identify SBU information, especially S[cientific] and T[echnical] information; how to keep it from terrorists, while allowing access for those who need to use it; and how to develop uniform nondisclosure policies and penalties.25  
       If you are a potential government whistleblower, it may make a difference whether or not the documents that support your need to blow the whistle -- the violations of law, corruption, waste, or other matters posing a substantial danger to public health or safety -- are classified or are SBU.  
      Classified Documents  
       For a government employee, releasing classified national defense or atomic information to a foreign government or agent of a foreign government isn’t whistleblowing, it’s a crime.26 The Defense Department employee who leaked the classified information to two lobbyists with the American Israel Public Affairs Committee (AIPAC) pleaded guilty to “passing classified information.”27 Much more controversial is the federal government’s attempted prosecution of the two AIPAC lobbyists for violating the provisions of the Espionage Act, for receiving the information and passing it on to the press, “in violation of 18 U.S.C. § 793 (d), (e) and (g).”28

 
       Since the case involves conversations more than documents, the prosecution has raised alarm among journalists, who say the law’s “ broadness collides with First Amendment protections because it could criminalize even casual conversations about anything that might harm the armed forces.”29 The district court will allow the case to proceed against the two former lobbyists, although the court will require the government to prove that the defendants willfully committed the prohibited conduct.30 When the information exchanged involves intangible information, the government must prove that the defendants had reason to believe the information "could be used to the injury of the United States or to the advantage of any foreign nation.31 While this is a fairly high standard, some commentators believe the District Court failed to give the First Amendment implications of the case sufficient weight.32 The case has not yet gone to trial, so the story is far from over.  
       Government lawyers haven’t ruled out using the law to prosecute members of the press for publishing classified leaked information, but admit that there has there has never been such a prosecution.33 But threatening reporters with prosecution under espionage laws if a story with classified information is printed has certainly happened before. In one instance, James Risen and Eric Lichtblau of the New York Times were threatened with prosecution when they broke the National Security Agency (NSA) wiretapping story. Risen doesn’t think his stories “have harmed national security nor, he said, has anyone made a serious case that any story written or broadcast in the past 25 years has done so.”34 There was, of course, a whistleblower involved in the NSA wiretapping story.35  No one would know that the NSA was listening to the conversations of American citizens without a warrant would have surfaced without a whistleblower, and it is information that all Americans need to know.  
 
     For the government employee, leaking classified documents to the press is a more complex matter. It can result in prosecution. Daniel Ellsberg was prosecuted for leaking the Pentagon Papers, and was prepared to go to jail.36  The case against him was dismissed because of the government’s misconduct.37 According to former Attorney General John Ashcroft, “Although there is no single statute that provides criminal penalties for all types of unauthorized disclosures of classified information, unauthorized disclosures of classified information fall within the scope of various current statutory criminal prohibitions.38 As Steven Aftergood has commented, “if you leak information to the press, the person who leaks the information is subject to penalties while the person who receives it is not.” 39 The Espionage Act or a claim of executive authority does not prevent the publication of the classified information, as the Supreme Court held in the Pentagon Papers case:”…The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.40
 
       So the whistleblower is the person facing potential prosecution. The fact that a document is marked “classified” has so far been sufficient to satisfy the prosecution’s burden of proof that a defendant “communicated” information, so it is not up to the whistleblower to determine whether or not the classification determination is correct.41 Whistleblowers who release classified information to the public do so at great risk. That has not prevented a steady stream of mostly anonymous whistleblowers from leaking information that they consider to be of major importance for the public to know. Why do they do it? The words of one whistleblower may explain it:  
  My boss, the one who told me to lie to the FBI. He got a promotion. You know what I do now? I deliver pizza. … So, I think I was crazy to blow the whistle. Only I don’t think I ever had a choice. It was speak up or stroke out. So all I can say is that I wouldn’t do it again if I didn’t have to. But maybe I’d have to. I don’t know.42    
      Reclassified Documents  
       Even though a whistleblower isn't the one who determines whether or not a document is properly classified, the glare of publicity on leaked but improperly classified documents may lead to declassification. That’s what happened when General Taguba’s scathing report on interrogation procedures at Abu Ghraib and the now infamous photographs of prisoner abuse by American military personnel were made public. When the Taguba Report was leaked by an anonymous whistleblower, it was classified “secret.” 43 According to the American Federation of Scientists: “By classifying an explosive report on the torture of Iraqi prisoners as ‘Secret,’ the Pentagon may have violated official secrecy policies, which prohibit the use of classification to conceal illegal activities.”44 The majority of the Taguba Report has now been declassified, and the Department of Defense has revised its classification standards.45  But at the time of the original leak, the government was calling for the prosecution of the whistleblower.46
 
       Internal Complaints  
     What about whistleblowers who complain of wrongdoing within their government organizations? Although there are bureaucratic channels for reporting misconduct in federal agencies, the fate of whistleblowers who make internal complaints has never been a happy one.47 Sibel Edmonds, a contact translator for the FBI who complained about possible spying in her unit, is living refutation of that old maxim of jurisprudence: there is no wrong without a remedy.48 Edmonds had evidence of some strange goings on in the translation department and was worried that one of the translators was a spy; she passed her suspicions along to her supervisors, and eventually to the Office of Professional Responsibility and the Office of the Inspector General, both set up to investigate claims of internal wrongdoing.49 She passed a polygraph test, but so did the target of her complaints. Edmonds was fired.50  Every attempt Edmonds has made to seek redress for her treatment by the FBO have been blocked by a very broad use of the “states secret” privilege’ the government has successfully claimed that the entire subject matter of Edmonds’ lawsuits are state secrets.51 According to Anne Beeson of the ACLU, who was representing Edmonds, the states secret privilege is normally used to block the production in open court of specific evidence the government believes would harm national security, but the lawsuit can usually go forward even if every piece of evidence can’t be used.52 Not in Edmonds case.
 
       The state secrets privilege has been successful despite the fact that Edmonds had testified before Congress in unclassified briefings, so that the basic subject matter of her allegations was actually known to all.53The FBI attempted to retroactively classify letters posted on the Internet by members of Congress regarding the briefings; the letters were removed from Congressional web sites, but in the settlement of the FOIA lawsuit that followed, the government agreed that the retroactive classification was ineffective.54 Edmonds has yet to have her day in court.  
       Other whistleblowers have testified about the retaliation they have faced. Army officer Anthony Shaffer, who blew the whistle on some unutilized pre-September 11th intelligence information, told a House Government Reform subcommittee about the retaliation he faced, adding:  
  I became a whistle-blower not out of choice, but out of necessity," Shaffer said. "Many of us have a personal commitment to ... going forward to expose the truth and wrongdoing of government officials who - before and after the 9/11 attacks - failed to do their job. 55    
          Federal intelligence whistleblowers have been called the “undead,” stripped of their security clearances and unable to work.56 Haig Melkessetian is one of the undead, relegated to a lesser job, for testimony about MZM, a government contractor in Iraq, that eventually led to the downfall of the Representative Randall Cunningham. 57 There are so many “undead” that in 2004 Sibel Edmonds founded the National Security Whistleblowers Coalition., and it now has over sixty members.58  
       Limitations on Workplace Speech  
    Some employees who complain to their superiors about illegal or improper activities, and are retaliated against, file lawsuits. Whistleblower suits usually include civil rights claims that First Amendment rights of free speech have been violated. The Supreme Court recently decided a case that limited employees’ First Amendment protections when the government is the employer. In Garcetti v. Ceballos, a deputy district attorney filed a civil rights complaint alleging he had been retaliated against at work for writing a disposition memorandum in which he recommended dismissal of a case for what he felt was governmental misconduct.59 In dismissing the attorney’s First Amendment claims, the Court rejected “ the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties.”60  
       The plurality (four of the nine justices) in Garcetti felt that existing whistleblower protection laws and labor laws would “protect those who seek to expose wrongdoing.” 61 In one of the dissents, the Court noted that there is no comprehensive state or federal scheme that protects whistleblowers, so that some First Amendment protection is needed.62  Protected whistle-blowing is “defined in the classic sense of exposing an official's fault to a third party or to the public.”63  Garcetti leaves a government employee with more comprehensive legal protection by speaking in a public forum or going to the press with allegations than if the employee complained to a supervisor.  
       Whistleblower Protections  
       The Garcetti decision led to swift Congressional action. The 109th Congress had introduced a number of whistleblower protections laws, including a stalled Senate Bill, S. 494, the Federal Employee Protection of Disclosures Act, which had provisions reversing the effect of Garcetti.64 Following the Garcetti decision, the Senate voted 96-0 to add the bill as an amendment to the 2007 National Defense Authorization Act, to try and get the bill through. 65 Although the bill was not passed, it was just re-introduced in the 110th Congress as S. 274.66  To keep up on bills protecting whistleblowers, the Government Accountability web site at www.whistleblower.org is a valuable resource.  
       The current Whistleblower Protection Act 67 is one of a patchwork of federal laws protecting government employees from retaliation. There are over fifty statutes that may apply in specific employment contexts; a survey of these laws, as well as useful links for whistleblowers, is available at WhistleblowerLaws.com. The site also lists states that have laws that protect whistleblowers, either by a public policy exception to the “employment at will” doctrine, by specific statutory protection for whistleblowers, or by explicit statutory protection for government whistleblowers. The National Conference of State Legislatures has a fifty state guide with links to each state’s whistleblower laws at www.ncsl.org/programs/employ/whistleblower.htm. If you are thinking of becoming a whistleblower, the Government Accountability Project has a guide titled Blowing the Whistle: Twelve Survival Strategies.68  
       Not a Whistleblower  
       Most of us will never have to make the decision about whether we should become whistleblowers or remain silent. And whistleblowers have a terrible time; the effects on work and life are usually disastrous. But getting information out to the people who need it is a pretty normal role for librarians, and there have been librarian-whistleblowers. A dissident KGB archivist smuggled thousands of secret files of the former Communist party to the west.69  Fortunately, there are other ways to help make sure that access to government information is not blocked Getting involved in professional organizations and public interest groups and working on information policy are ways to work for continued public access to information. Librarians have been on the front lines of that battle for quite some time.  
       References  
  1. House Committee on Government Reform, Subcommittee on National Security, Emerging Threats, and International Relations, Too Many Secrets: Overclassification as a Barrier to Critical Information Sharing, 108th Cong. 2nd sess, Aug. 24, 2005, Statement of John F. Tierney.  
  2. John Roberts, “White House Guts Global Warming Study,” CBS News, June 13, 2003, http://www.cbsnews.com/stories/2003/07/24/politics/main564873.shtml
 
  3. House Committee on Government Reform, Subcommittee On National Security, Emerging Threats, And International Relations, National Security Whistleblowers In The Post-September 11th Era: Lost In A Labyrinth And Facing Subtle Retaliation, 109th Cong. 2nd sess., Feb. 14, 2006, Statement of Michael German, http://purl.access.gpo.gov/GPO/LPS73777.  
  4. National Archives and Records Administration. Information Security Oversight Office, Audit Report: Withdrawal of Records from Pubic Access at the National Archives and Records Administration for Classification Purposes, Apr. 26, 2006, http://www.archives.gov/isoo/reports/2006-audit-report.html; Memorandum of Understanding (MOU) Between the National Archives and Record Administration and the United States Air Force, Mar. 3, 2002, http://www.archives.gov/declassification/mou-nara-usaf.pdf; Memorandum of Understanding (MOU) Between the National Archives and Record Administration and the Central Intelligence Agency, Oct. 26, 2001, http://www.gwu.edu/~nsarchiv/news/20060419/mou-nara-cia.pdf. It was researchers and historians who blew the whistle. Matthew Aid, et al. to J. William Leonard, 17 Feb. 2006,
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB179/Aid-3-Letter_to_ISOO.pdf.
 
  5. C. Fred Alford, Whistleblowers: Broken Lives and Organizational Power, (Ithaca and London: Cornell University Press, 2001). In the book, Daniel Ellsberg “said that his former friends and colleagues regarded him with neither admiration nor censure but with wonder, as though he were a space-walking astronaut who had cut his lifeline to the mother ship.” Ibid, 5.  
  6. The Pentagon Papers are more formally known as House Committee on Armed Services, United States-Vietnam Relations, 1945-1967: A Study Prepared by The Department of Defense, 92nd Cong. 1st sess.,
1971, Committee Print 71-H202-14. Major portions of the classified Pentagon Papers were leaked to the New York Times, and revealed that the Johnson Administration had lied to the American public about the extent and timing of United States involvement in the war in Vietnam. The government tried to prevent the publication of the Pentagon papers in New York Times Co. v. U.S., 403 U.S. 71 (1971);  Daniel Ellsberg and Ray McGovern, “Nation Depends on Feds Brave Enough to Tell the Truth,” Federal Times (Oct. 25, 2004,): 25
 
  7. National Security Whistleblowers in the Post-September 11th Era, Remarks of Representative Christopher Shays, 1.  
  8.  Memorial Institute for the Prevention of Terrorism, Terrorism's Toll on Aviation: Pan Am 103 Expert Shares Lessons at MIPT, Nov. 21, 2006, MIPT Terrorism News,  on file with the author.“Terrorism's Toll on Aviation: Pan Am 103 Expert Shares Lessons at MIPT,” November 21, 2006, MIPT Terrorism News,  on file with the author.  
 

9. Thomas H. Kean and Lee Hamilton, The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks upon the United States upon the United States, U.S.G.P.O., 2004, 247, 276, 541 n.107 (2004), http://purl.access.gpo.gov/GPO/LPS51934.

 
  10. Robert G. Vaughn, Thomas Devine, and Keith Henderson, “The Whistleblower Statute Prepared For The Organization Of American States And The Global Legal Revolution Protecting Whistleblowers,” 35 George Washington International Law Review 857 (2003).  
  11. “The Crew of the Challenger Shuttle Mission in 1986,” National Aeronautics and Space Administration (2004), http://history.nasa.gov/Biographies/challenger.html.  
  12. “The Challenger Story: Aftermath,” Challenger Center for Space Science Education (2007),  www.challenger.org/students/history/aftermath.cfm.  
  13. Alasdair Robert, Blacked Out: Government Secrecy the Information Age, Cambridge and New York: Cambridge University Press, 2006, 44-46.  
  14. Ibid, 18-22.  
  15. House Committee on Government Reform, Subcommittee on National Security, Emerging Threats, and International Relations, Emerging Threats: Overclassification And Pseudo-Classification, 109th Cong 1st sess.,  Mar. 2, 2005, Statement  of Thomas Blanton, http://purl.access.gpo.gov/GPO/LPS62737.  
  16. Erwin N. Griswold, “Secrets Not Worth Keeping: The Courts and Classified Information, Washington Post, Feb. 15, 1989, A25.  
 
17. Rick Blum, Secrecy Report Card 2006, OpenTheGovernment,
http://ww.openthegovernment.org/otg/SRC2006.pdf, 3.
 
  18. Rick Blum, Secrecy Report Card 2005, OpenTheGovernment, http://www.openthegovernment.org/otg/SRC2005.pdf, 9.  
  19.Memorandum from Laura L.S. Kimberly, Richard L. Huff & Daniel J. Metcalfe, Department of Justice, to Departments and Agencies, March 19, 2002, http://www.usdoj.gov/oip/foiapost/2002foiapost10.htm#guidance. This memorandum was attached to Memorandum from Andrew H. Card, Jr., Assistant to the President and Chief of Staff, to the Heads of Executive Departments and Agencies, “Action to Safeguard Information Regarding Weapons of  Mass Destruction and Other Sensitive Documents Related to Homeland Security,” Mar. 19, 2002,  http://www.usdoj.gov/oip/foiapost/2002foiapost10.htm.  
  20. Office of Security & Emergency Preparedness, Centers for Disease Control & Prevention, “Sensitive But Unclassified Information,” July 22, 2005,  http://www.fas.org/sgp/othergov/cdc-sbu.pdf: “The purpose of this document is to provide policy and procedures to the Centers for Disease Control and Prevention (CDC) that allow for the accomplishment of our public health service mission while safeguarding the various categories of unclassified data and document information that, for legitimate government purposes and good reason, shall be withheld from distribution or to which access shall be denied or restricted.”  
  21. Blum, Secrecy Report Card 2005, 9-10.22.  
 

22. Pseudo-Secrets: A Freedom of Information Audit of the U.S. Government's Policies on Sensitive Unclassified Information (Washington, D.C.: National Security Archive, mar. 2006), I, available at
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB183/SBU%20Report%20final.pdf. Appendix IV lists sensitive unclassified information policies by agency, available at
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB183/appendix4.pdf. Some pseudo-classifications have been sufficient to shield information from FOIA requests:  Living Rivers, Inc. v. Bureau of Reclamation, 272 F.Supp.2d 1313, 1320 (D. Utah, 2003) (accepting agency's declaration that law enforcement maps of flood areas below the Hoover and Glen Canyon dams might aid terrorists in carrying out an attack) and Coastal Delivery Corp. v. Customs Service, 272 F.Supp.2d 958, 964-965 (C.D. Cal. 2003) (upholding use of exemption 2 protecting internal documents as basis for denying information regarding inspections of seaport operations because if terrorists knew how often inspections occurred, they could send their containers to vulnerable ports).

 
  23. House Committee on Government Reform, Drowning In A Sea Of Faux Secrets: Policies On Handling Of Classified And Sensitive Information, 109th Cong. 2nd sess, 2006, H. Rep. 167, available at http://purl.access.gpo.gov/GPO/LPS74879", 303.  
 

24. U.S. Government Accountability Office, "Report 0-06-385," Mar. 2006, 2.

 
  25. Genevieve J. Knezo, Congressional Research Service, Nov. 14, 2006, available at http://www.fas.org/sgp/crs/secrecy/RL33303.pdf.
The report also summarizes the laws that have been enacted to try and remedy the problem.
 
 

26.18 U.S.C. 793, 794 (2000), 42 U.S.C. 2274(a), 2275 (2000).  Federal law also makes certain other disclosures of specified national security secrets a crime. See, for example, statutes prohibiting disclosures of national defense information, intercepted communications or codes (18 U.S.C. §§ 797, 798 and 952 (2000)); statute prohibiting the unauthorized disclosure of restricted data (42 U.S.C. §2277); the Intelligence Identities Protection Act (50 U.S.C. §421 et seq.(2000)); and Internal Security Act (50 U.S.C. §783 (2000)).

 
  27. Jerry Markon, “Defense Analyst Guilty in Israeli Espionage Case,” Washington Post, Oct. 6, 2005, 2; available at http://www.washingtonpost.com/wp-dyn/content/article/2005/10/05/AR2005100501608_pf.html,  
  28.  U.S. v. Rosen, Case No. 1:05cr225, (E.D. Va. 2006), Memorandum Opinion, available at http://www.fas.org/sgp/jud/rosen081406.pdf.  
  29. Ron Kampeas , “Judge Hints he Could Dismiss AIPAC Case,”  Washington Jewish Week Online Edition, Jan. 27, 2007, available at
http://www.washingtonjewishweek.com/main.asp?SectionID=4&SubSectionID=4&ArticleID=5044&TM=539.37.
 
  30. U.S. v. Rosen, 445 F. Supp. 2d 602, (E.D. Va. 2006).  
 
31. Ibid at 625-626, quoting 18 U.S.C. §§ 793(d), (e) (2000).
 
  32. Recent Case, “Constitutional Law - Due Process And Free Speech - District Court Holds That Recipients Of Government Leaks Who Disclose Information ‘Related To The National Defense’ May Be Prosecuted Under The Espionage Act,” Harvard Law Review 120, no. 3, (2007): 821, 824: “In a case such as Rosen--in which the alleged criminal activity involved not just traditional espionage, but also behavior that implicates the very core of the rights the First Amendment was designed to protect--§ 793(e) fails to achieve the higher level of clarity mandated by the vagueness doctrine in a First Amendment context.”  
  33. Rani Gupta, “Reporters or Spies? The Prosecution of Two Lobbyists Has Raised Fears the Espionage Act Could Be Used Against Journalists: It Wouldn’t Be the First Time,” The News Media & the Law, vol. 30, no. 4 (2006): 4, available at http://www.rcfp.org/news/mag/30-4/cov-reporter.html.  
  34. Rani Gupta, “Intelligent Communication: A 1950 Espionage Law Prompted by Wartime Leaks Could Prove Dangerous to Journalists Who Report on Covert Government Programs,”The News Media & the Law, vol. 30, no. 4, (2006): 8, available at
http://www.rcfp.org/news/mag/30-4/cov-intellig.html.
 
  35. Ryan Singel, “Whistle-blower Outs NSA Spyroom, Wired (Apr. 7, 2006), available at http://www.wired.com/news/technology/0,70619-0.html  
  36. Scott L. Matson , “The Pentagon Papers, 30 Years Later: The Man Who Started It All Worries More Than Ever That An Official Secrets Act Will Keep The Public In The Dark About How The Government Handles Foreign Affairs,” The News Media & The Law, Vol. 25, no. 2 (2001): 49,  www.rcfp.org/news/mag/25-2/new-pentagon.html.  
  37. Ibid.  
  38. John Ashcroft to Dennis Hastert, “Report to Congress on Unauthorized Disclosures of Classified Information,” (Oct. 15, 2002), available at http://www.fas.org/sgp/othergov/dojleaks.html, citing United States v. Morison, 844 F.2d 1057 (4th Cir. 1988).  
  39. Bill Berkowitz, “Escalating Secrecy Wars: Punish Leakers Of Classified Documents Severely, Says CIA Veteran,” WorkingForChange (Jul. 9, 2003), available at http://foi.missouri.edu/OSA/escalating.html.  
  40. U.S. v. New York Times, 403 U.S. 713, 719 ((1971).  
  41. U. S. v. Boyce, 595. F.2d 1246, 1251.(C.A.9 (Cal.) 1979),:”Under provision of this section for penalty for unauthorized disclosure of classified information concerning design, construction, use, maintenance, or repair of any device, apparatus or appliance used or prepared or planned for use by the United States for cryptographic or communication intelligence purposes, fact of classification of document or documents satisfies classification element of offense, and propriety of classification is irrelevant.”
 
 

42. C. Fred Alford, Whistleblowers: Broken Lives and Organizational Power (Ithaca and London: Cornell University Press, 2001), 1.

 
  43. Steven Aftergood, “Torture Report May Have Broken Classification Rules,” Secrecy News  (May 5, 2004), http://www.fas.org/sgp/news/secrecy/2004/05/050504.html.  
  44. Ibid.  
  45. Steven Afterggod, “Pentagon Acknowledges, Combats Overclassification,” Secrecy News, (Nov. 11,2004), available at http://www.fas.org/sgp/news/secrecy/2004/11/110104.html; The “Taguba Report” On Treatment Of Abu Ghraib Prisoners In Iraq, available at http://news.findlaw.com/hdocs/docs/iraq/tagubarpt.html.  
  46. Rumsfeld Testifies Before Senate Armed Services Committee ,” Washington Post,
(May 7, 2004): 4, available at http://www.washingtonpost.com/wp-dyn/articles/A8575-2004May7_4.html.
 
  47. For a list of channels for reporting wrongdoing, most government agencies have online information. See, for example, the Federal Aviation Agency’s web site at http://www.faa.gov/safety/programs_initiatives/aircraft_aviation/whistleblower/complaint/. The Office of the Inspector General is another avenue for reporting problems, at http://oig.hhs.gov/
 
  48. Corpus Juris Secundum, Equity  § 120.  
  49. David Rose, “An Inconvenient Patriot,” Vanity Fair, (Aug. 15, 2005), available at http://www.informationclearinghouse.info/article9774.htm.  
  50. Ibid.  
  51. Edmonds v. Department of Justice, 323 F. Supp.2d 65 (D.D.C. 2004), Edmonds v. Department of Justice, 161 Fed. Appx. 6 (D.C.Cir. 2005), Edmonds v. Department of Justice, 126 S.Ct. 734, 163 L.Ed.2d 569 (2005).  
  52. Rose, "An Inconvenient Patriot."  
 

53. The briefings, and the FBI confirmation of some of Edmonds’ allegations, were set forth in several letters from members of Congress to the Department of Justice: “Classified Letters Regarding FBI Whistleblower Sibel Edmonds,” The Memory Hole, available at http://www.thememoryhole.org/spy/edmonds_letters.htm.

 
  54. Stipulation of Dismissal, Project on Gov't Oversight v. Ashcroft, Civ. No.1:04cv1032 (D.C. Cir. Mar. 9, 2004) (on file with author); see also Vesper Mei, U.S. Dept. of Justice, to Michael T. Kirkpatrick, Public Citizen Litigation Group (18 February 2005), available at http://pogo.org/m/gp/gp-02182005-JusticeDeptLetter.pdf (acknowledging that the letters are "releaseable in full, pursuant to the Freedom of Information Act").  
  55. James Rosen, “Military, Spy Whistle-Blowers Allege Retaliation: Witnesses tell lawmakers their careers were ruined because they didn't lie for superiors,  Sacramento Bee, Feb.15, 2006, A14.  
  56. Jeff Stein,”National Security Whistleblowers: the ‘Undead’?”, CQ Homeland Security (Jan. 26, 2007), available at http://public.cq.com/docs/hs/hsnews110-000002438709.html.
 
  57. Ibid.  
  58. Ibid; Sibel Edmonds, National Security Whistleblowers Coalition.  
  59. 126 S.Ct. 1951, 1955; 164 L.Ed.2d 689 (2006).  
  60. Ibid, 1962  
  61. Ibid.  
  62. Ibid, 1970.  
  63. Ibid.  
  64. Federal Employee Protection of Disclosures Act, S. 494, 109th Cong., 1st sess. (Mar. 2, 2005); available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s494rs.txt.pdf  
  65.“Senate Approves Whistleblower Rights Breakthrough,” Government Accountability Project, available at http://www.whistleblower.org/content/press_detail.cfm?press_id=514
 
  66. Federal Employee Protection of Disclosures Act, S. 274, 110th Cong. 1st sess., (January 11, 2007), http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s274is.txt.pdf  
 

67. Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16  (codified as amended in scattered sections of 5 U.S.C.)

 
 

68. Government Accountability Project, available at http://www.whistleblower.org/content/press_detail.cfm?press_id=59.

 
  69. Roberts, Blacked Out, 29-30.