Date: Thu, 23 Aug 2001 02:13:26 -0400
Subject: [Fwd: Editorial NYT 8/22: "Keeping Secrets at Too High a Price"]
An important heads up, and interesting that the NYT is printing this.
Not too friendly to the CIA of late are they?
John Judge
Keeping Secrets at Too High a Price
New York Times Editorial
By THOMAS S. BLANTON
August 22, 2001
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.