Skip to comments.Publishing Classified Information
Posted on 10/21/2005 9:37:56 PM PDT by blogblogginaway
As Washington braces for the expected indictment next week of one or more government officials in the Valerie Plame case, attention is understandably focused on its impact on the functioning of the White House and its likely impact on the future of the Bush Administration. But along with the on-going AIPAC leak investigation, which I plan to discuss in another post, the Plame case will have far greater repercussions: These cases could seriously impede the public's right to know what its government is doing.
This is because both investigations are proceeding on the misguided assumption that the World War I era "espionage" laws criminalize not just transfers of information relating to the national defense, foreign powers and their agents, but also leaks to the press. If this were true, the United States would have an official secrets act -- one that is broken hundreds of times every day. If enforced, such a law would deprive the public of information that is crucial to meaningful self-government. This interpretation of the espionage laws would render completely superfluous such acts as the Intelligence Identities Protection Act, which are narrowly drawn to protect a specific category of information from disclosure in specific situations.
Indeed, it is no small irony that the criminal statute which triggered the Plame investigation, the Intelligence Identities Protection Act, was drafted with extraordinary attention to balancing the need to protect true government secrets with the critical role that a free press plays in our society.
Over several years the Congress enacted the Intelligence Identities Protection Act precisely because it recognized that the general espionage statutes were not intended to be used to cover disclosures to the press and, if they were, this would do great harm. Congress recognized that there was massive over-classification of national defense information and that a statute that classified all such information would prevent the Congress and the public from gaining the information it needed to challenge government policies.
Indeed, enactment of the Intelligence Identities Protection Act, with its myriad of safeguards, would make no sense if the espionage law, which makes it a crime for anyone to give national defense information to a person not entitled to receive it, applied to transfers of information to the press or from one reporter to another. The definitive review of these statutes confirms that Congress had no such intention and that the Congress that drafted the Intelligence Identities Protection Act clearly agreed or it would not have gone to the trouble of carefully drafting that law.
In crafting this act, Congress recognized that even the disclosures of the identities of covert agents might be in the public interest and should not be criminalized except in specific situations. The contrasts with the general Espionage Act are substantial and critical to understanding how the exchange of information between the Executive and the press now functions and how it must continue to function until we find a way to classify far less information.
The Espionage Act makes no distinction between government officials with authorized access to classified information and private citizens, including reporters who may acquire, or seek to acquire, such information. All can be guilty of unauthorized possession, receipt, or transfer of such information. By contrast, the Intelligence Identities Protection Act creates separate crimes for these two categories. Those without authorized access, such as journalists, are guilty of a crime only if they are engaged in a pattern of disclosures which harm the national interests. Congress wanted to crack down on a small group who were regularly publishing lists of names of covert agents for the purpose of putting them out of business. While successfully shutting down this effort, Congress took great care to insure that the reach of the crime would not extend to reporters who revealed the names of agents in the course of a legitimate news story. It did not consider such actions to be crimes, but rather essential to public debate. To underscore its concern that the actions of reporters not be chilled, Congress went the extra and unprecedented step of barring the use of the conspiracy laws to link a reporter to an unauthorized disclosure. The history of this debate, in which I was deeply involved on behalf of the ACLU, suggests that Congress might well have barred Grand Jury subpoenas to reporters if it had considered the question.
Even in dealing with government officials the Congress legislated narrowly, covering only a very small category of information, the disclosure of which would clearly cause harm. Congress also added a series of specific requirements, including the requirement that the official had knowledge that he or she was disclosing the identify of a covert agent whose identity the government was trying to keep secret.
The Fitzgerald investigation has already done great harm by further undercutting the notion that reporters have a right to protect their sources without fearing jail time and that officials can speak to the press on background without fearing that they would be required to offer a blanket waiver of confidentiality to all of those to whom they speak on background.
I was in the Defense Department in the 1960s when the public relied almost entirely on "unauthorized" leaks to learn about our Vietnam policy. The notorious leak of the fact that the commander in Vietnam, General Westmoreland, had asked for 200,000 more troops triggered a debate which forced President Johnson to deny the request and announce that he was not running for re-election. If all of us in the Pentagon and elsewhere who opposed the war could have been asked to relieve all reporters of their confidentiality agreements or be fired, there would have be no such leak or there would have been a large purge including most, if not all, of the skeptics of the war.
Those who take satisfaction from the fact that, in this case, those asked to sign the waivers were supporters of the war should understand that this demand will most often be made when there are leaks against administration policy. Whistle blowers will think twice before talking to the press and will fear a demand that they release their sources from confidentiality.
The situation will be much worse if Fitzgerald indicts officials for violations of the Espionage Act or even conspiracy to violate the act with reporters. Unauthorized releases of classified information occur daily and are the main way we learn what the government is doing or plans to do. We learn about abuses of various kinds from such disclosures. Indictments of senior government officials who may have leaked information to discredit a critic, no matter how reprehensible, would be a very small compensation for the vast chilling effect of such an indictment (or the successful pressing of a similar indictment in the AIPAC case).
For now, those who care about a free press and a robust debate about the government's national security policy can only hope that there will be no indictment or one which deals with a cover up and does not rest on an underlying premise that revealing classified information to the press is a crime. It is not and should not be. For if it is, we will all pay a very heavy price.
I would think if Fitzgerald is so concerned about leaks, he would be investigating who is leaking secret grand jury information out of his house?
he is allowing the leaks. these charges better be good. if they attempt to unseat the heads of a government during war time and disaster repair. well this is a big boy move. we are not talking about some mob has been or a small time politico . they better have the goods.
I would think Fitzgerald's concern over leaks would cause him not to publish a personal website dedicated to the case.
I must be missing something here . . . . . . . releasing classified data to the press should NOT be a crime?? I worked for the wrong Defense Contractor and the wrong DoD I guess.
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