03.18.11

Blame the Defense Department for WikiLeaks

The agency issued a mea culpa for WikiLeaks last week to little fanfare—but there still won’t be an investigation into its faulty systems. Former NYT General Counsel James C. Goodale asks, where is the outrage?

In an astounding statement before Congress, the Defense Department admitted it was partially at fault for the massive leak of government documents to the website WikiLeaks. There have been no calls, however, for an investigation into how the Defense Department could have made such a blunder.

The only investigation in the WikiLeaks matter is of Julian Assange’s activities. And that investigation seems to be going nowhere. 

We know from public reports, Bradley Manning, who allegedly leaked documents to Assange, received cables on his computer in his capacity as an intelligence analyst. These cables were sent in encrypted form. When he pulled them up to look at them, they appeared in decrypted form.

Manning then stored these decrypted cables in a separate storage device. Using this device he was able to store hundreds of thousands of classified documents in decrypted form.

He was then able to deliver them decrypted to Assange. Assange did not have to decrypt them to share them with The New York Times, The Guardian, and Der Spiegel.  He merely gave them what he had.  The Department of Defense Chief Information Officer Teri Taki told the Homeland Security Committee that this system was highly flawed and should be changed immediately. The security was much too lax. She proposed two changes.

First, no longer would storage of decrypted cables be permitted. If someone like Manning wished to save or store cables he read, absent authorization, on his computer they would be stored only in encrypted form. In this way a Bradley Manning would not be able to share the cables with someone like WikiLeaks. This is because they would be only available in encrypted form and there would be no way for someone like Assange to decrypt them. 

The government’s actions come off worse than WikiLeaks.  It has really screwed up, it has admitted it.

Taki also said that she was going to change the password system for access to cables and the like. She would issue ID cards using encryption to a selected list of those who would have access to classified material. 

This group would be large, say as many as 500,000 people. It would, however, be a group that could be monitored under the new system to insure there would be no improper storage as occurred with Manning. 

The practice disclosed by Taki is outrageous.  In the commercial world similar weaknesses in security systems with respect to stored documents are well-known.  The government should have known about them too.  Do not expect any investigation of the government’s actions soon. The government is only interested in investigating Julian Assange. 

Presently, that investigation is proceeding under the authority of a grand jury impaneled in Virginia. The grand jury is investigating Assange under the Espionage Act. It has admitted that prosecution under the Espionage Act would be difficult and that it was seeking other ways to indict Assange.  The government’s admission that prosecution under the Espionage Act would be difficult comes as no surprise with those familiar with that Act. It simply does not apply to the receipt of classified information. If it did, there would be scores of journalists in jail who cover national security matters such as Bob Woodward, James Risen of The New York Times, or Walter Pincus of The Washington Post, all of whom receive classified information on a regular basis. The reason the Espionage Act does not apply is because the First Amendment protects newsgathering activities in the national arena, including the receipt of classified information.

The government is not giving up easily, however. Last week it won a case against Twitter, forcing Twitter to give up information about WikiLeaks. What the government is looking for and expects to find is not clear. 

One wonders whether the government is huffing and puffing to cover up its own incompetence. If so, it has been effective since, as far as it is known, no one has called for an investigation into what the government has done. 

Compare the activities of Assange with the admission made by the Defense Department.  Through incompetence and carelessness, it has permitted a huge national security leak which could have been easily prevented.  On the other hand Assange has exercised his right under the First Amendment to publish, as have others including The New York Times, materials leaked to him by Manning.  If we are to balance the behavior of the government and WikiLeaks in this matter, the government’s actions come off worse than WikiLeaks.  It has really screwed up, it has admitted it, but where’s the outrage?

James C. Goodale is the former Vice Chairman and General Counsel of The New York Times.