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.