With the third WikiLeaks dump now before us, and more promised down the road, two questions that arise are whether prosecutions of those responsible are possible and what can be done to better protect classified material. Neither question admits of easy answers. One can start, however, by noting that overclassification is a perennial problem in government, and correcting that problem would go far toward more open government better able to protect classified material.

That said, whether in families or foreign affairs, confidences are necessary, and the need to keep those confidences is inescapable.

Accordingly, one can say with certainty that any  government official who knowingly downloaded and then released classified documents to a person unauthorized to see or possess them, as Private First Class Bradley Manning is alleged to have done, can be prosecuted  under any number of federal statutes. With respect to someone like WikiLeaks founder Julian Assange, however, the issues are more complex. Attorney General Eric Holder has said that the Justice and Defense Departments are conducting a criminal investigation, presumably under the Espionage Act of 1917. That is a vague statute that may be broad enough to enable the president, under his foreign affairs powers, to go after someone who disseminates such documents.  But it has rarely been used, and never against a publisher.

The larger question, however, is how all of this was allowed to happen. Speaking from personal experience, during two brief stints at the State and Justice Departments during the Reagan administration I held a Top Secret clearance, which gave me access to highly classified materials. At that time, however, just to see those materials we had to go to the inner sanctums at State and Justice—areas that were shielded from any kind of eavesdropping—and then the materials were brought to us by agents who stayed with us while we read them.  In light of that experience, I find it incredible that a young Army PFC could download this material and go undetected for long enough to disseminate it and boast about it afterward. More than anything else, this is one more government failure. Heads should roll, but mostly the heads of those who enabled so lax a system to exist.

This morning the full Senate voted down a proposed rule that would have barred earmarks for the next two years. Part of the reason? Earmarks are transparent.

Here’s Senator Dick Durbin (D-Ill.), quoted in a Hill article:

There is full disclosure in my office of every single request for an appropriation. We then ask those who have made the requests to have a full disclaimer of their involvement in the appropriation, so it’s there for the public record. This kind of transparency is virtually unprecedented.

Senator Durbin doesn’t know transparency. Take a look at Senator Durbin’s earmark disclosures. Yes, you can read through them, one by one. But can you make a list of recipients? Can you add up the totals? Can you search for common words in the brief explanations for each earmark? Can you make a map showing where recipients of Senator Durbin’s requests are?

No, no, no, and no.

That’s because Senator Durbin puts his request disclosures out as scanned PDFs. Someone on his staff takes a letter and puts it on a scanner, making a PDF document of the image. Then the staffer posts that image on the senator’s web site. It’s totally useless if you want to use the data for anything. Notably, Senator Durbin doesn’t even include the addresses of his earmark recipients.

Last year, visitors to my transparency project, WashingtonWatch.com, laboriously took earmark disclosures like Senator Durbin’s and gathered the data from them. Now—because of their work—you can see a map of Illinois earmarks and the list of Senator Durbin’s requests for FY 2010.

Early this year, President Obama called for “a comprehensive, bipartisan, state-of-the-art disclosure database that allows Americans to examine the details of every proposed earmark before a vote is taken.” He wasn’t talking about WashingtonWatch.com or the public doing this work—he was talking about Congress putting a database together with earmark data in useful formats.

Later in the early part of the year, I worked with a small group of transparency activists to show Congress how to do earmark transparency. Earmarkdata.org has our earmark data schema—the guide to producing earmark information in a way the public can use. (You can sign a petition there to support earmark transparency.)

No, Senator Durbin, your earmarks are not transparent. We’re producing the state-of-the-art database. We’re setting the precedent for transparency. Your PDF-image disclosures are a day late and a dollar short.

Here are the votes on the earmark moratorium taken in the Senate this morning. A “No” vote supports continuation of earmarking. A “Yes” vote is opposed to earmarking.

The disability insurance component of Social Security was created in 1956 to provide income support to individuals aged 50 to 64 who were permanently disabled. As is typical with government programs, eligibility and benefits were greatly expanded over the subsequent decades.

SSDI, which is funded through a 1.8 percent payroll tax on all workers, was recently described by the Congressional Budget Office as “not financially sustainable.” The following chart shows that SSDI benefit payments have soared 119 percent since 1995 in real or inflation-adjusted terms:

What was supposed to be a narrowly tailored program to help individuals who could no longer work has blossomed into a gigantic budgetary burden that acts more like an unemployment program. Indeed, the number of individuals receiving SSDI benefits has jumped more than 10 percent in the last two recessionary years. So a large number of people seem to be abusing the system by claiming disability in order to get government handouts. What makes the problem worse is that, unlike standard unemployment insurance, there’s no time limit for how long an individual can receive SSDI.

The long-term upward trend in real benefit payments also suggests abuse because fewer people should be having career-ending injuries.

From a 2006 paper on SSDI by economists David Autor and Mark Duggan:

Adding to the complexity of an expanding program mission, five decades of advances in medical treatments and rehabilitative technologies, combined with a secular trend away from physically exertive work, have arguably blurred any sharp divide that may have once existed between those who are “totally and permanently disabled” and those who are disabled but retain some work capacity. While one might have expected these medical and labor market changes to reduce the incidence of disabling medical conditions and hence lower the relative size of the DI program, this has not occurred.

According to the Washington Post, Autor and Duggan will release a new paper this week that proposes changes to SSDI:

Their proposal would require workers and employers to share the cost of a modest private disability insurance package, which is between $150 and $250 a year, according to the report, which is to be officially unveiled at a Dec. 3 event in Washington.

Workers seeking to go onto the federal disability program would first have to be approved for benefits from the private policy. Those benefits would go toward rehabilitation services, partial income support and other related services, the researchers said.

After receiving private payments for two years, workers would be eligible to apply for Social Security Disability Insurance (SSDI) benefits if they believe their disabilities are too severe for them to remain in the workplace, the report says.

Instead of creating a program on top of a program, why not just completely transition SSDI to the private sector? Workers should be allowed to divert the disability insurance portion of the payroll tax to a private account, the proceeds from which could then be used to purchase private disability insurance. Workers would have an incentive to spend their money prudently, while private insurers would have a financial incentive to make sure they weren’t being gamed.