Hi Win,
Have you seen this Op-Ed piece about the attempt to tighten up the secret-keeping abilities of the government?
August 22, 2001
Keeping Secrets at Too High a Price
By THOMAS S. BLANTON
WASHINGTON -- The Senate Intelligence Committee, foiled last
year only by President Bill Clinton's veto, is again putting together a
bill that would establish the country's first-ever official secrets act. It is a
remarkable post-cold war paradox: At a time when the rest of the world is
looking to America for leadership on openness, Congress would make it
harder for Americans to know what their government is doing and would
give aid and comfort to every tin-pot dictator who wants to claim "national
security" as the reason to keep his citizens in the dark.
Senator Richard Shelby of Alabama, the principal sponsor, has scheduled a
perfunctory hearing on Sept. 5; after that he wants to begin pushing a bill
through the committee that would criminalize the unauthorized disclosure of
any type of classified information by federal employees. It is unclear whether
Bob Graham of Florida, the committee chairman and a supporter of last
year's bill, intends to slow Mr. Shelby down. It does seem clear, however,
that President Bush would be unlikely to veto such a measure.
The committee's staff members seem confident and have told critics, in effect:
Go ahead and file your statements of opposition next month, but don't expect
to convince our senators. The committee members have been spoon-fed the
Central Intelligence Agency's self-interested damage assessments — all
highly classified, of course.
What the senators and their staff have never told us is why, exactly, we need
such a law. Is there really any foreign intelligence threat even remotely
comparable today to the sophistication of the K.G.B. during the cold war?
Are there really more leaks in the White House and State Department today
than there were, say, during the glory days of Henry Kissinger's tenure?
The staff members insist that the need is more urgent than ever, but they can't
give us any details — that's classified. I'm skeptical — after all, my
organization has spent the last two years in court fighting a C.I.A. claim that
release of biographical sketches of dead Communist leaders in Eastern
Europe would somehow jeopardize the agency's sources and methods.
Whenever in the past Congress has considered making it a felony to leak
classified information, it has always stepped back from this sort of
broad-gauge approach, choosing instead to criminalize only leaks of specific
and narrowly defined data — like the capabilities of technology designed to
intercept communications — where there was identifiable damage to national
security.
In 1982, for example, Congress made it a felony to divulge the identities of
C.I.A. officers and "assets." This met the constitutional test because, as
Antonin Scalia, then a law professor, testified to Congress at the time, "the
necessity of this particular, narrow category of disclosure to the free and
open political debate which the first amendment is intended primarily to
assure" is "negligible."
Some Intelligence Committee staff members say that the current proposal
meets this criteria of narrowness, too, because it would apply only to a small
segment of the population — government employees with security
clearances. Well, the last time I checked, this amounted to about three
million people, not counting former employees!
Supporters of the proposal also bristle at the appellation "official secrets act"
and try to draw a contrast with the British law of that name, which allows the
prosecution of journalists who publish secrets. They say the proposal could
not be used to prosecute journalists, especially in light of current Justice
Department guidelines that prevent such action. But when the government
prosecutes employees who leak information, who will be called, under
penalty of perjury, as the only witnesses to the crime? Journalists. Where will
they find the evidence of the crime? In the press.
To this argument, some of the proposal's supporters have given an unusual
answer: No, they say, there won't be any prosecutions of leakers under such
a law, because the government never actually catches leakers. As one
Intelligence Committee lawyer told me, the purpose is to chill potential
leakers, who "won't think it's so cool to leak when it's a felony."
By covering all classified information, however, the bill would chill much
more than just leaks. James Woolsey, a former director of central
intelligence, and Kenneth Bacon, a former Pentagon spokesman, each
argued against last year's bill, pointing out that such laws would discourage
legitimate interactions between government officials and the public on matters
of national security.
The fact is, the government already has plenty of power to punish those who
disclose classified information — it can pull their security clearances, fire
them, even keep them from ever working again in the national security
apparatus.
As Philip Heymann, a former deputy attorney general, argued last year, a
blanket secrecy law is an invitation to selective prosecution and retribution,
even if is tempered with protections for leaks about waste, fraud and abuse.
It's also true that such a law could become a free pass to every national
security bureaucrat trying to cover his mistakes, as well as the ultimate
enforcement mechanism for the government's spin machine, compelling
everyone in national security offices to stay "on message" under threat of
prosecution.
Such a law would also rob the Intelligence Committee itself of many of the
tools — media exposure, the expertise of former officials, input from
academic experts and nongovernmental organizations on classified matters
— that Congress depends on for checks and balances on the executive
branch.
Yet some committee members now seem to be saying: "Trust us; the damage
from leaks is so great that we should restrict our First Amendment rights and
chill the public debate over core issues of national security." That was a
questionable argument during the cold war; it's an unsupportable one now.
Thomas S. Blanton is director of the National Security Archive, a
research institute and documentation center at George Washington
University. |
