Criminalizing speech to protect secrets

Sunday, August 13, 2006

When members of the House of Representatives take up crucial intelligence bills, the vast majority elect not to read the classified portions — which is to say the really important parts — and they don’t sign up for classified briefings on the bills’ provisions.

Which means they essentially are voting blind, even on those bills they approve overwhelmingly.

Why? Not because they’re too busy or they don’t care. It’s because they are afraid.

In an article on its survey of House members published this past weekend, The Boston Globe reported that our elected representatives face “an untenable choice” on intelligence bills: “Either consent to a review process so secretive that they could never mention anything about it in House debates, under the threat of prosecution, or vote on classified provisions they knew nothing about. Most chose to know nothing.”

As a result, members are reluctant to discuss such matters with one another, their staffs or outside experts. That frequently translates into no real or relevant public debate on issues increasingly crucial since the war on terrorism began. More and more, our lawmakers and the public depend on press accounts based on unauthorized disclosures, or leaks, for information on national security.

But that vital information flow continues to be threatened by a concerted crackdown on leakers and journalists. The latest is legislation introduced Aug. 2 by Sen. Kit Bond, R-Mo., that would criminalize the disclosure of classified information. Bond was joined by 11 fellow Republicans as co-sponsors in offering up what has become known as an “official secrets act.”

Word for word, this is the legislation that caused President Clinton to veto the entire intelligence authorization act in 2000. A year later, the Senate Intelligence Committee declined to act on the same bill. Congress has for more than half a century rejected similar versions of this effort to criminalize leaks. The Supreme Court warned in 1971 that its ruling in the Pentagon Papers case might have been different if such a criminal statute had been on the books.

For a multitude of reasons, this bill has been deemed too dangerous for democracy. It is unnecessary, it is a threat to First Amendment rights and it is an affront to responsible governing.

Current law already criminalizes the most dangerous of leaks: identities of covert agents, capabilities and intelligence regarding communications and restricted data concerning nuclear weapons. Administrative discipline and loss of security clearances or jobs await those within government who disclose other classified information.

This proposal would expand the definition of what is properly classified. It would require no intent to benefit our enemies. It would require no proof of damage to our security. It would leave the public dependent on official announcements and “authorized leaks” designed to bolster official policies and influence public opinion.

And it would cast a debilitating pall over free speech, the free flow of information and government accountability.

There has been a startling expansion of secrecy in the past five years. It has become very difficult to find out about, let alone challenge, important actions and policies concerning our security.

Executive-branch officials have thrown up a daunting array of obstacles for citizens and lawmakers: overclassification, misclassification, reclassification and pseudo-classification. Even congressional committees and independent commissions with a lot of clout find it difficult to get over the administration’s stone walls.

Meanwhile, alternative sources of information — whistleblowers and journalists — are hounded, harassed and threatened with jail.

Equally important, this law would chill the speech of a host of other important speakers in public discourse: elected and appointed officials at all levels of government, scholars, lobbyists and public-interest groups. Even former government officials, never sure what is classified or reclassified, would be vulnerable to prosecution for their writing, teaching or other public activities.

The impact of an official secrets act would be particularly acute for the press. Though the sponsors of the act insist that the press is not targeted, the potential harm is great. The law would authorize grand jury subpoenas for journalists and search warrants for their records and notes. It could make them witnesses to and possible co-conspirators in a criminal act.

They could be hauled before a grand jury and forced to reveal their sources — or go to jail.

Right on the heels of the official secrets act proposal, a federal judge on Aug. 9 issued another chilling threat to journalists’ ability to inform public debate. Judge T.S. Ellis III allowed the Justice Department to proceed with its prosecution of two AIPAC (American Israel Public Affairs Committee) lobbyists under an unprecedented interpretation of the 89-year-old Espionage Act. Judge Ellis ruled that national security trumped the First Amendment and that “the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.”

The press receives and transmits such information all the time, of course. In addition to recent news accounts of NSA surveillance in the United States and secret CIA interrogation centers abroad, the press has relied on leaks of classified information to bring to public attention a long list of issues critical to political discourse, including the Pentagon Papers; espionage scandals and other weaknesses in our intelligence agencies; biological and radiation experiments on citizens; vulnerabilities in our nuclear plants, transportation system and weapons facilities; security lapses at our borders and ports, as well as numerous reports of government abuse, fraud, waste and missteps.

Rather than launching criminal prosecutions of journalists and their sources, the more effective — and democratic — approach to the problem of unauthorized disclosures of classified information is to reduce and better police our vast stores of secrets, expand and extend the dialogue between the press and intelligence community, and unclog and legitimize official channels for government employees to share concerns about government policy and action.

Criminalizing speech about government secrecy flouts the First Amendment and allows government officials to slip through the back door of the nation’s newsrooms to stifle legitimate inquiry and punish journalists and others who raise uncomfortable issues.

Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail:

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