The case for leaks

Journalists are urging President Clinton to veto a bill that would make it a felony to disclose any classified information to the media.

By Fiona Morgan

Published November 2, 2000 1:16AM (EST)

Ever since leaks about alleged espionage at Los Alamos National Laboratory reached the front pages of the New York Times and produced a firestorm on Capitol Hill, government secrets have become a hot political issue.

Yesterday, the debate over security leaks reached a kind of climax in the form of a bill, approved by Congress, that awaits President Clinton's signature -- or veto -- by Nov. 4. The controversial provision, tacked on to a larger intelligence spending bill, tightens government security by making it a felony for anyone with security clearance to knowingly disclose classified information to anyone without authorized access to it.

An alliance of press organizations -- including CNN, the Washington Post and the American Society of Newspaper Editors -- is up in arms over what they say is a broad threat to journalistic freedom.

And even people who support the law admit that there's a lot wrong with it. It's extremely broad, covering the entire gamut of classified information and making it illegal to leak to the press anything -- no matter how innocuous -- that's been classified.

Proponents of the law say it is not intended to prosecute minor leaks. But whatever the intention, critics say that's what it will do.

"It's disastrous for journalists," Kenneth H. Bacon, assistant secretary of defense for public information, told reporters on Monday. "It's disastrous for any official who deals with the press in national security."

As a government spokesman himself, Bacon pointed out that the law would make it a felony for him to answer simple questions posed by the media -- about, say, the movement of Iraqi troops during the Gulf War, if he were relying on classified information in order to do so.

Many in the security field say that while holes in disclosure laws need to be filled, this bill has everything to do with politics and nothing to do with the real problems at hand.

"History shows that classification rules are often used to punish people," says Jessica Stern, senior fellow at Harvard's Belfer Center for Science and International Affairs. "This law would make it a lot easier to use those rules in an arbitrary way. It could and most likely would be used politically: to squelch disclosure of politically embarrassing information or to punish people whose views officials don't like."

Steven Aftergood of the Federation of American Scientists' Project on Government Secrecy has been following the anti-leak bill since its inception on the Senate floor. He spoke with Salon Tuesday to lay out the stakes for the media and the nation.

The proponents of this law are saying that there is a big problem with leakage of information to the press, which is hurting all kinds of surveillance operations and causing them to lose agents. Is this a big problem?

I think it is certainly true that there has been an epidemic of leaks of classified information. To some degree there have always been leaks as long as there has been a classification system. But the rate of unauthorized disclosures has increased markedly since the end of the Cold War. I don't know if anybody really knows why. I suspect that there's a feeling that it just doesn't matter as much anymore. And since we don't face the same kind of superpower threat that we faced in the Cold War, there's not much to lose in leaking classified information.

At any rate, there has been an erosion of discipline within the cleared community such that people are leaking right and left. I would say that at least nine out of 10 leaks are utterly benign, and many are positively beneficial in terms of informing the public. It is probably true however that, from time to time, an authorized disclosure of classified information jeopardizes a source or causes an intelligence-gathering method to be rendered useless.

Now I should hasten to add that the problem here has nothing to do with a lack of legal authority to prosecute.

It's already illegal to disclose classified information if it aids a foreign power, exposes intelligence agents or compromises national defense, correct?

Not exactly. There are prohibitions against leaks of only a handful of discrete categories of information. Those categories include the names of clandestine intelligence agents, nuclear weapons secrets and certain kinds of cryptographic and communications intelligence. But those are the exception, not the rule.

What does exist is a broad range of administrative penalties -- administrative, in contrast to criminal. If you're caught leaking, you can have your security clearance revoked, you can have various kinds of penalties imposed, you can lose your job.

The problem that government agencies have had is that they have been unable to identify the leakers. It's not that they have been unable to prosecute them; they've been unable to locate them. And so this new law will do nothing to address the problem that it supposedly is directed toward.

One of the complaints by the media has been that they are afraid journalists would be subpoenaed more often and have to reveal their sources under this law. Do you think that that's a problem?

The government, including the principal sponsor of this legislation, Sen. [Richard] Shelby [R-Ala.], explicit disavow any such intent. At the same time, that disavowal is not written into the law. And one could imagine a change of political climate in which such subpoenas could be used.

But even if it weren't, this is a fundamentally bad law. It would grant unfettered authority to the executive branch -- both to define the crime by deciding what's classified, and to decide whom to prosecute. It's an astonishing grant of authority to the executive branch that would upset the checks and balances that we've always depended on.

You brought up the issue of what is classified, and the problems with this law overlap with that debate, which has been going on heatedly. The concern about this law is that it's so broad and ill-defined, and people have made the same complaint about the classification process, right?

With few exceptions, the executive branch decides what is classified. The exceptions are things like nuclear weapons secrets, which are defined by law (in this case, the atomic energy act). But as a rule, most classified information is defined by the executive branch.

And everyone who has ever looked at it -- including people within the executive branch itself -- agrees that far too much information is classified. Information is classified that does not need to be withheld in order to protect the national security.

The way this law is written it doesn't ask, "Does this need to be classified?" It simply says if it's classified, then its disclosure is a felony. And that's insane.

It backs up the classification system with the force of law. And the classification system does not deserve that much credit.

Because it's arbitrary?

It's utterly arbitrary.

And it's also rather behind technological advances that make old classified information rather moot?

There's no internal mechanism for correction in the system. And once something is classified, chances are it will stay classified for a long, long time.

In fact, one of the basic reforms that is needed is to develop an external check on the classification system so that somebody has the authority to say, "wait a minute, this should not be classified."

Right now there is no such person. In theory you can challenge classification in court under the Freedom of Information Act. But in practice, most judges have refused to "second guess," as they put it, the executive branch. Which is to say they have refused to exercise independent judgment.

So the executive branch has carte blanche to decide what is classified and then to go after whoever they don't like if the information is released.

Can you give an example of the kind of information that would be affected by this law, something reporters might routinely ask but that, under this law, someone with clearance would commit a felony by answering?

My favorite all-purpose example when it comes to classification abuse is the fact that the amount of the total intelligence budget is a secret -- and yet it is routinely reported every year, more of less accurately, based on leaks, whether from Congress or the executive branch. The total is currently estimated at about $30 billion for the dozen or so intelligence agencies. So from now on anyone who acknowledges that yes, it is $30 billion, they would be guilty of a felony.

You mentioned the political climate, and the way this law could be abused if certain political motivations were in play. Does this relate to reports in the Washington Times newspaper, which certainly advocates a certain political point of view, that have leaked classified information?

I don't know for sure, but my speculation is that the Washington Times, and especially their national security reporter Bill Gertz, are a proximate cause of this legislation. Because they have not only reported classified information, which many national security reporters do regularly, but they have also done it in a particularly brazen and provocative way which involves unnecessary disclosure of information that really might be sensitive.

For example, the fact that the source of a particular intelligence report is from an electronic intercept -- a report like that will automatically trigger a security upgrade on the part of whoever the target of the intercept was. And it will cause the intelligence agencies to lose a source. At the same time it adds little or no news value to a story, so I think it's a questionable news judgement.

Last week on two occasions the Washington Times actually printed the text of classified documents as a photo inset to its news stories. I don't think national security was harmed in those cases, which is to say they probably were not properly classified, but they have been particularly brazen in the way they handle this information.

Does this law have anything to do with the aftermath of the Wen Ho Lee case?

Indirectly it does. It's all part of the same climate in which security is given overriding priority above all over considerations. There's a level of paranoia.

What we're seeing is a kind of Republican activism in which Republican leaders of Congress think it is their job to define security policy for the executive branch. This case is really the reduction to the absurd, because they are giving essentially unlimited authority to the executive branch at the risk of their own institutional interest.

I think Congress has an important institutional interest in preserving press access to classified information, because it is more often than not through the press that Congress finds out about executive branch misconduct.

When there's no misconduct, there's no problem, and everything works smoothly. But when somebody is behaving dishonestly in the executive branch, then Congress will not find out about it except through unauthorized disclosures to the media. For that reason they, and we -- all of us -- have an interest in preserving the vitality of the press in this area.

How do you envision that being compromised by this legislation? People are saying that this law is "chilling" -- do you see it that way?

I think so. There will still be strongly ideologically motivated leakers who will disclose documents to the Washington Times. But others who are more scrupulous and not as ideologically driven will draw the line at committing a felony. Bending the rules is one thing. Committing a felony is altogether different.

Fiona Morgan

Fiona Morgan is an associate editor for Salon News.

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