Anti-leak laws aren’t the answer, panel says

Friday, March 16, 2001

ARLINGTON, Va. — The government should create a classification scheme that safeguards only that information that it absolutely needs to protect — and the rest of the confidential data should be open to the public and news media, panelists said March 16 at the National Freedom of Information Day conference.

“Even the Freedom of Information Act recommends the keeping of certain secrets. The question is what are those secrets that need to be kept so that our policy makers have the ability to act correctly and rightly,” Patrick B. Murray of the House Permanent Select Committee on Intelligence said on a panel examining the effectiveness of anti-leak legislation.

Most of the panelists agreed that legislation was not the best way to keep confidential government information about national security from the public.

“The greatest problem is convincing people within an administration to exercise discipline in what they say to the press and in dealing, at the same time, with the legitimate needs to get the information out to the press,” said Jeff Smith, former general counsel for the CIA.

Scott Armstrong of the Information Trust said there needed to be “a better dialogue between the media, intelligence community and the government about what requires protection.”

Referring to the anti-leak provision that was a part of the bill vetoed by former president Clinton in November 2000, Armstrong said that legislation aimed at prosecuting government employees for revealing secrets impaired the sources’ right to speak freely and the journalists’ right to report thoroughly.

“We understand what we’re protecting. We know … what information we can put out into the public domain without hurting a source,” Armstrong said.

Legislation would also not be effective in identifying the person responsible for the leak, Murray said.

“You’re not going to be able to narrow the universe of potential leakers to the one person you can tag beyond reasonable doubt,” he said.

Bill Kovach of the Committee of Concerned Journalists said “information that the government gathers belongs to the people, not the government.”

Although editors face tough decisions when they run stories based on sensitive information, “you balance the right and the need of the public to have the information against what harm might occur,” Kovach said.

It goes back to “identifying the information that must be classified, having government employees understand the need for that classification, and limiting the classification to that information,” Murray said.

During a question-and-answer session, Daniel Ellsberg, a government worker who leaked the Pentagon Papers to the news media, said the panelists gave too much weight to the hypothetical lives that might be lost if secrets were leaked to the public and not enough to the real lives that were lost, for example, in the Vietnam War.

“I was reflecting on this memorial with 58,000 names on it of people who were lied to death by government officials — including me and my colleagues,” Ellsberg said. “I’ve often thought that if I had emptied my safe in the Pentagon in 1964 or ’65 … the effect would have been that there would have been no Vietnam war from 1965 on.

“What I learned in Vietnam was that democracy is worthwhile, not just as an idealistic principle or a philosophic principle. It makes for better policy; it reduces disastrous policy; it gets us out of disastrous wars.”

Ellsberg also said that those who fight for openness must be more passionate. “I haven’t heard sufficient passion or commitment to the necessity for changing this secrecy system … to become the democracy that Madison urged us to be,” he said.