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NSA whistleblower Diane Roark says there’s no equity under classification laws and no disincentives for those who over-classify and punish those seeking to alert the public of abuses

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JESSICA DESVARIEUX, PRODUCER, TRNN: Welcome to the Real News Network. I’m Jessica Desvarieux in Baltimore. On Thursday former secretary of state and presidential candidate Hillary Clinton appeared before a special House panel to testify about the 2012 Benghazi attacks. The media has focused on the presidential candidate’s face-off with Republicans over her use of private email and knowledge about the attacks. But our guest today says the system of classifying intelligence and the discrepancies in enforcement should be what’s truly in the spotlight. Now joining us is Diane Roark. She served as a top staff member on the House Intelligence Committee from 1985 to 2002. She fought to end the NSA’s post-9/11 warrantless wiretapping initiative and was under investigation by the FBI for more than five years. Thank you so much for joining us, Diane. DIANE ROARK: Thank you. DESVARIEUX: So Diane, it seems like it was the elephant in the room that didn’t get discussed, and that’s really talking about the stark contrast in the treatment of national security whistleblowers and Hillary Clinton’s use of private email. Can you just explain the difference in treatment, especially considering your own personal experience? ROARK: Yes. The intelligence agencies and in particular the National Security Agency are known for going after whistleblowers using classification issues. And not just classified material, but what they also call sensitive but unclassified material. In my case, when I became wrongly suspected of leaking to the New York Times about domestic surveillance, what happened was that eventually they came and raided my house and seized a lot of–my computer and a lot of other things, as well. And then refused to give back anything. Four other people also were raided, and we, none of us were guilty, and we all had to sue to be able to get back some of our materials. And they wouldn’t give all of it back. They claimed that anything that they considered classified or sensitive that had not been revealed officially, they could keep. And in fact, that if there was one unclassified but sensitive document, they could keep your entire computer. DESVARIEUX: And so Ms. Clinton, she’s released those emails and we’ve found out that 400 of those emails were classified. So Diane, what do you make of that? ROARK: I was not surprised at all to find out that a lot of them were classified because of her position. When she was using, when she was doing business emails, almost everything was sensitive. And the [inaud.] called her on this sensitive but unclassified part of that. It hasn’t even been mentioned. But it’s used as a weapon against whistleblowers. But on the classified, clearly–I don’t think she is a victim of rampant overclassification, precisely because this is such a very public, very partisan case. A lot of partisan dissent over it on both sides. And so it is under a microscope. So I don’t think the classification is going to be marginal or wrong. I think they’re going to be at pains to keep it only with what is truly classified. In our case, though, they claimed things were classified that were not. DESVARIEUX: Yeah, and let’s talk about that a little bit. Because in your article you recently wrote about how the system is broken in terms of overclassification. And that’s part of the issue, why a lot of whistleblowers come under prosecution. Can you just explain, why is overclassification such a problem? ROARK: It’s a problem because the incentives are all wrong. No one is ever disciplined for over-classifying something. For classifying it at a higher level than it should be. In fact one of the review groups that looked at this issue stated that practically everything that was classified at confidential probably should be unclassified. But nobody ever gets punished for doing it. On the other hand, if you underclassify something at a level below what it should be, you could be in big trouble. DESVARIEUX: So what do you make of the argument then, if people say, you know, it’s better to err on the side of caution? Especially when you’re dealing with highly sensitive material like national security issues? What’s your response to that? ROARK: Well, that’s precisely what they’re doing. Not to protect national security, necessarily, but to protect themselves. DESVARIEUX: Okay. So at the end of the day you see–what about in terms of our democracy? Is it hurting it? ROARK: Oh, yes. I think it’s hurting it. Another reason there is overclassification is because the executive branch hides things that are embarrassing or illegal, or contrary to competition. A lot of things like that. And these are all specifically said in the executive order, in Section 1.7 of the executive order on classification says specifically these things may not be classified. But a lot of them are. Take domestic surveillance, for one. That was classified, and obviously the American people should have known about it. DESVARIEUX: All right then, Diane, what should we be doing, then, if we want to reform the system? ROARK: Well, you have to find some way to change the incentives. And one of the ways to do that would be to punish overclassification. Another way to do it would be to exert judicial review over it. Unfortunately our system of national security law is broken, in my view, because judges are very reluctant to look at classification issues, normally. And the administration has very effectively promoted a state secrets doctrine which most people are, most judges, are very reluctant to touch. They just don’t want to put their classification judgment against that of the executive branch. However, it is common sense in many cases, whether they’re classifying embarrassing or illegal activities, and the judge won’t even review that. DESVARIEUX: So is a judge reluctant to touch it because they’re essentially political appointees? If we’re talking about on the federal level. ROARK: They are. So there’s some of that. Another problem is that once a precedent is set they keep going back to that precedent. And so it takes a very brave judge to break the precedent. And then of course the case will be appealed, and his judgment might be overturned, which is probably not good for his career. DESVARIEUX: I got you. All right, Diane. So we’re certainly going to be tracking this Hillary Clinton story. But I really appreciate you taking the time to join us. Thank you so much. ROARK: Thank you. It was a pleasure. DESVARIEUX: And thank you for joining us on the Real News Network.


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