Obama’s Latest View on Secrecy Overlooks Past Prosecution of Leaks

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WASHINGTON — When President Obama defended Hillary Clinton’s email practices in a television interview over the weekend by saying, “there’s classified, and then there’s classified,” he was only repeating what critics of government secrecy have long contended: that most of what is classified is merely sensitive, a little embarrassing or perhaps a policy debate still in progress.

But these are distinctions the Obama administration has not necessarily made in its treatment of classified information when dealing with news organizations, whistle-blowers or government officials accused of leaking information.

The White House has overseen some nine leak prosecutions, compared with just three under all previous presidents, drawing sharp criticism from news media advocates. The administration denounced the huge trove of confidential State Department cables released by WikiLeaks as damaging to American diplomacy, and it created task forces to counter Edward J. Snowden’s revelations about the National Security Agency – some of which involved genuine secrets, and some of which did not.

In a case involving Thomas A. Drake, a former official of the National Security Agency accused of wrongly providing information about the agency’s practices to a newspaper, the judge blasted prosecutors for putting Mr. Drake through “four years of hell.” He was sentenced to community service.

“If you’re on trial for unauthorized disclosure of classified information, you don’t get to say, ‘there’s classified, and then there’s classified,’ ” said Steven Aftergood, who directs the Project on Government Secrecy for the Federation of American Scientists.

The president, Mr. Aftergood said, may have been simply stating the truth about the subjective nature of the classification process. But his statement, delivered on “Fox News Sunday,” Mr. Aftergood said, “failed to grapple with the fact that a bunch of people in his administration have been caught up in a meat-grinder as a result of classification policy.”

During the Obama administration, a midlevel State Department official was prosecuted for telling a Fox News reporter that North Korea would most likely react to sanctions with more nuclear tests. The former director of the C.I.A., David H. Petraeus, was prosecuted for giving his mistress, who was writing a biography of him, notebooks full of classified information, though he received a light sentence, which may have reflected the view that little in the notebooks was still operationally important.

Now, though, Mr. Obama seems to have come around to the view of Robert M. Gates, his first Defense secretary, who has said that he cannot get too worked up about leaked State Department cables. “I’ve heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer, and so on,” Mr. Gates said in 2010. “I think those descriptions are fairly significantly overwrought.”

There is no evidence that Mrs. Clinton disclosed classified information while she was secretary of state; she says that nothing she sent or received was even marked as classified at the time. The Federal Bureau of Investigation is probing whether any classified information was mishandled as a result of her use of a personal email address and computer server.

Speaking about Mrs. Clinton’s case, Mr. Obama said, “There’s stuff that is really top-secret, top-secret, and there’s stuff that is being presented to the president or the secretary of state that you might not want on the transom, or going out over the wire, but is basically stuff that you could get” from unclassified sources.

But after more than seven years in office, the administration has only recently gotten serious about curbing the reflex to stamp “secret” or “top secret” on the cables that flow each day from embassies to the State Department, or course through the Pentagon.

In a memorandum issued on March 17, the director of national intelligence, James R. Clapper, asked for a “fundamental classification guidance review” that could allow information that is only sensitive for a brief time to be declassified quickly, rather than waiting the customary 15 or 25 years. He even asked whether the classification category “Confidential,” which no two government agencies seem to define the same way, should be eliminated.

In fact, Mr. Obama’s distinction between genuine secrets and vaguely secret material echoes arguments that The New York Times and other news media organizations made after the WikiLeaks disclosures, some of which were published in The Times. A substantial percentage of the 250,000 cables consisted of articles published in local news media. As officials entered them into the State Department’s system, many were marked “classified,” even though they could be found in simple Google searches.

In a news conference after the disclosure of the State Department cables, Mr. Obama pledged to energetically pursue those who leaked government secrets. “We have mechanisms in place where if we can root out folks who have leaked, they will suffer consequences, ,” Mr. Obama said at the time. “In some cases it’s criminal.”

Mrs. Clinton and Mr. Obama, in those days, did not see much distinction among classified documents. She said then that publishing the cables would “tear at the fabric” of alliances, and particularly objected to the publication of “any information that was intended to be confidential, including private discussions between counterparts or our diplomats’ personal assessments and observations.”

Some officials predicted that foreign leaders would never again have confidential conversations with their American counterparts. That turned out not to be the case, though many diplomats now say they put more information into private emails, or intelligence channels, and avoid the State Department’s official cable system.

Mr. Obama, Mrs. Clinton and other officials now find themselves making a more nuanced argument — that just because something is technically classified does not mean it is damaging. Consider, for example, the exchanges between Mrs. Clinton and several of her top aides on the July 4 holiday in 2009, just six months into the administration. The emails were among the 30,000 that the State Department released under a court order in response to a Freedom of Information Act request.

North Korea had just launched a ballistic missile, an occurrence that has become so common that it barely warrants a Situation Room meeting. Various aides offered assessments, all of which have now been redacted — though the State Department noted that many of the facts discussed had been published by news organizations. The redaction argument, department officials say, was won by the intelligence agencies, which feared that some of the information came from satellite surveillance.

It turned out that this intelligence was published days after the exchange of emails, meaning that the data sent to Mrs. Clinton could not have come from those sources. Still, those sections of her emails have been deleted, at least for now, while the agencies continue the argument.