A leaky bureaucracy is good for democracy

Friday, November 10, 2000

It is true that information is power. It is also true that many
government officials don’t enjoy sharing that power with the people. Thus, the
nation’s capital is awash in secrets; so many, in fact, that we would have
democratic gridlock if the machinery of government weren’t lubricated by

Congress recently threatened to dump a truckload of sand in that
machinery when it passed an “official secrets act.” Immediately, a
chorus of alarm rose along the banks of the Potomac and on editorial pages
across the land. The concern came from both Washington insiders and outsiders,
from former and current government officials, from press and access
organizations, and from members of Congress, as well as ordinary citizens.

In the end, these voices persuaded President Clinton to
veto the legislation. It was a
remarkable act:

The veto was a rebuke of Clinton’s own Central Intelligence
Agency, which had pushed the law in Congress, and the Justice Department, which
had helped draft it.

It was a politically risky move just before the election,
especially since the White House already had assured Congress it had no problem
with the law.

And it was a notable departure from the usually deferential
treatment accorded the wishes and demands of the intelligence community.

Nevertheless, the president and some of his advisers eventually saw
the law for what it represented: a frontal assault on the public’s full and
informed participation in the democratic process. In his veto message to
Congress, President Clinton called the law a “badly flawed provision that
would have made a felony of unauthorized disclosures of classified

All such attempts to suppress the First Amendment rights of the public
and those trying to get information to the public should be regarded as
“badly flawed.” This one was particularly so.

Under current law, prosecutors already have broad powers to go after
anyone who leaks classified material with the intent of harming national
security, helping a foreign power or exposing intelligence agents. The new law,
however, would have unhinged the current safeguards, allowing prosecutors to
proceed without regard to the leakers’ intent or whether they knew that
information was classified or could have been classified.

In other words, this law would have put in prison anyone who made
information available to the public disclosing not just secrets but
incompetence, waste, fraud, abuse of power, corruption and other things that
stand in the way of good government and democratic principles.

This law would have silenced government employees who blow the whistle
on official wrongdoing.

It would have put at risk of prosecution members of Congress and their
staffs for communicating with their colleagues, their constituents and the
press about controversial or sensitive issues.

It would have muzzled former officials who wish to teach, write or
consult on matters about which they are unique resources.

It would have cut off vital sources of information to the legislative
and judicial branches about the workings of the executive branch.

It would have greatly complicated the ability of historians and other
researchers to accurately document democracy as it unfolds.

And it would have censored the press by sending its sources to

If it had not been for leaks of government secrets, American voters
and taxpayers might never have known about the revelations in the Pentagon
Papers, about human radiation experiments, about toxic releases into the
environment, about human rights abuses in Guatemala, about the My Lai massacre,
or about lax security measures at defense and energy facilities – to name
just a few examples.

Despite its infirmities, this law was still approved by Congress. It
was passed in large part not because of its merits, but because of secrecy and
legislative legerdemain. There was a smattering of news stories when it first
became known that such a law was proposed, but then it went underground.
Hearings were held in secret. No public comment was sought. And a voice vote on
the law left no record of who supported and who opposed it.

Why did the CIA and the heads of congressional intelligence committees
want this law?

No doubt they were motivated by reasonable concerns about the release
of information that could truly harm our national interests. But there is some
reason to believe they also wanted to shut off the source or sources of leaks
to Bill Gertz, a Washington Times
reporter who has regularly published articles involving secrets that some in
government would rather we not know. Indeed, this law either would have shut
down such sources or made them easier to target by mowing down the high grass
around them.

Nevertheless, after Congress embedded this law in the Intelligence
Authorization Act, a small coalition of press, access, civil liberties,
whistleblower and other groups banded together to get stories, editorials and
op-ed pieces written. In addition, they worked the telephones, e-mails and
halls of power, contacting those in the White House and Congress who could be
reached with reason.

Soon, a critical mass of key officials had seen that this law indeed
was “badly flawed.”

Not the least of the flaws was the presumption that all government
secrets are sacrosanct. What is not a secret in Washington is the fact that
this “open society” warehouses literally billions of documents that
should never have been classified in the first place or which no longer need to
be classified.

Even former defenders of this secrecy have had second thoughts upon
reflection. Several years after he served as lead attorney for the government
in the Pentagon Papers case, Erwin Griswold wrote that despite the government’s
aggressive efforts to keep the story from the American people, he saw no real
threat to national security.

“It quickly becomes apparent to any person who has considerable
experience with classified material,” Griswold said, “that there is a
massive over-classification, and that the principal concern of the classifiers
is not with national security but rather with governmental embarrassment of one
sort or another.”

This law would have disrupted the delicate dance by which the power of
information is shared in our political process. That shift of power, in effect,
would have allowed those with crucial information to say to the rest of us:
“We do not make mistakes, we do not cover things up, and even if we do it
is none of your business.”

Proponents of stronger anti-leak laws will be back next session with
more such proposals. It is no surprise that they are committed to the idea. As
long as public officials meet behind closed doors without the public properly
represented, their deliberations will be missing a crucial perspective. As long
as they focus solely on a narrow concept of threats to national security, they
will never recognize the threat to democracy itself of too much secrecy.

When they return with such proposals, those inside and outside
government must remind them in no uncertain terms that we already have laws on
the books to punish those who set out to harm national security. We don’t need
laws that punish those who set out to help good government. That would result
in a “badly flawed” democracy.

Paul McMasters can be contacted at

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