“Why is it classified?” That’s a secret!”

            Despite breaching multiple security classification laws, former Attorney General Alberto Gonzales, who departed the office on Sept. 17, 2007 in the wake of multiple scandals, will not face criminal prosecution, the Department of Justice announced on Sept. 2. The documents, which Gonzales improperly carried to his home and failed to store in a safe, reportedly discussed aspects of the administration's top-secret wiretapping program. The DOJ investigation concluded, however, that Gonzales' breach of the classification regulations was inadvertent. (For one thing, Gonzales forgot the combination to the safe!)

            Naturally, the matter quickly became a political football. Congressman John Conyers Jr (D - MI) asked the DOJ to "explain clearly why it declined to pursue charges against Mr. Gonzales and what actions it intends to take." Conyers, a member of the House Judiciary Committee, should know better. Those with even the slightest experience with the federal government's security classification program - and surely this has to include Conyers - know that these agencies won't hesitate to stamp "Top Secret" on a ham sandwich. And while it's true that a few documents containing genuine security secrets would, if disseminated, cause arguable harm to the nation's security, the extent of overclassification is a national scandal.

            In my forthcoming book, Three Felonies a Day: How the Feds Target the Innocent (coming from Encounter Books in the third quarter of 2009), I write about my experience in defending an East German physicist, Professor Alfred Zehe, against a charge, growing out of an FBI sting, that he engaged in a conspiracy with East German officials to commit espionage. An FBI operative sold obsolete - but still classified - submarine sonar technology documents to the Communist East German embassy in the 1980s. East German officials allegedly consulted with Professor Zehe over the meaning of the documents, much as American governmental officials often consult with American academics on a variety of issues, then and now. When Zehe arrived in this country to attend a physics conference at MIT, he was arrested and charged.

            As my law partners and I prepared to defend Zehe at trial, we asked to see the documents in order to review them with an expert. The Department of Justice objected - we needed to undergo a security clearance procedure before seeing the documents. I was taken aback. It would be absurd, I told the judge, to require such a procedure, since I was a native-born American citizen, I was a member of the bar, I had no criminal record, and there was not a single reason to doubt my loyalty. Besides, my credentials aside, the documents were functionally useless and had been selected by the FBI as bait to make an espionage case against Professor Zehe. The documents, I argued, were currently in the hands of the East German Stasi, or secret police, in East Berlin, thanks to the FBI's having sold them! If the Stasi were sold the documents by the FBI, surely a presumptively loyal citizen could be allowed to see them.

            But my common sense position got nowhere. The DOJ persisted in its objection - classification regulations must be obeyed. The judge, with some apparent embarrassment, agreed. The law, as Dickens wrote, can be an ass. But surely the classification regulations and procedures take the cake - part Kafka, part Gilbert & Sullivan.

            And then there's the case of the DOJ obtaining a temporary prior restraint injunction against publication of a 1979 article in the politically radical magazine The Progressive, which purported to disclose the "secret" of how to make a hydrogen bomb virtually in one's backyard. The government actually convinced a federal district court to issue an injunction that lasted for several months while the litigation proceeded, despite the fact that the article's "secrets" had been gleaned from government libraries that were open to the public! The injunction was dissolved only when another magazine published the article, making the case "moot." (Unfortunately, the specter of "security" issues clouding jurisprudence has only gained strength since The Progressive case.) 

            The absurdities that spring from the government's obsession about keeping too many secrets can fill volumes. But best of luck to whoever writes those volumes - their de-classifying litigation against the DOJ and other government agencies tasked with keeping so much of what our government does (so often incompetently - the real reason for so much of the secrecy) would likely last a lifetime.              

            Kyle Smeallie assisted in the preparation of this piece.