Plugging a leak by puncturing freedom
For several weeks now, the federal intelligence community has scrambled to explain a string of embarrassments.
So what does the intelligence community do in the face of all this? It rushes to Congress to push legislation that would send people to prison for leaking classified information to the public and press.
It is called deflection. The intelligence community and their supporters in Congress would much rather Americans focus on someone else’s leaking of secrets than their own losing of secrets.
It is also called a flouting of the First Amendment.
Earlier this week, the Senate Select Committee on Intelligence endorsed legislation that would make felons out of anyone who discloses classified information to the press. Leakers could be thrown into prison for up to three years.
What’s so bad about that? Surely, we should take all measures necessary to protect government secrets. True, but much of what passes for classified material these days doesn’t protect national security as much as it protects the jobs or reputations of government leaders.
And while that may be business as usual in the nation’s capital, it has not been the business of government — no matter how much government might like it to be — to censor the press by sending its sources to prison.
So this latest proposal — which the Senate Select Committee on Intelligence endorsed before it sat down behind closed doors on Wednesday to discuss it with Attorney General Janet Reno, CIA Director George Tenet and FBI Director Louis Freeh — appears to have come out of the blue. Apparently, the attorney general took the lead in pointing out the problems with such an approach.
There are many.
Foremost is the fact that the leaking of information in Washington, D.C., is not a problem. It is a symptom of a problem. The problem is that too much information helpful to citizens who wish to monitor their own government is put out of their reach by over-classification. This nation’s dirty little secret is that there are too many secrets in government.
Attorney General Reno underscored this reality in her weekly press conference Thursday when she responded to a question about the proposed law. “It is important to make sure that we do not over-classify, so as to withhold from the public information that they should legitimately have. I think we should address the issue of the First Amendment so that there is not a concern there.”
As long as government officials work under the notion that the people should trust their governors but their governors shouldn’t trust the people, there will be those who will leak information to the press to get to the people, whether for good motives or bad.
The reasons the Justice Department hasn’t sought criminal penalties for punishing those who leak classified information: It’s difficult to catch someone in the act, and it usually is embarrassing when someone is caught. The leakers most often are White House aides, heads of cabinets and departments, high-ranking Pentagon officials, or members of Congress.
That’s why this proposed law doesn’t make sense to John L. Martin, a former Justice Department lawyer who supervised the prosecution of spies for 26 years. “If this were enacted, enforced and upheld by the courts,” said Martin, “you could relocate the capital from Washington to Lewisburg, Pa. (where there is a federal penitentiary).”
But in addition to deflecting attention from other embarrassments, many in government would like to see such a law passed because it would be a way to get at the press indirectly since more direct attempts have been thwarted. In fact, through both Democratic and Republican administrations, Justice Department policy has been to avoid going after the press directly to stop leaks.
Washington is a place where information is power, where secrecy is an obsession, and where elected and appointed officials alike skillfully manipulate information for their own benefit while thumbing their noses at the requirements of the federal Freedom of Information Act. In such an environment, journalists have had to develop other ways to gather the news.
Such a law would dry up vital sources of information.
And not coincidentally, journalists and their bosses would be spending their time responding to subpoenas or trying to avoid punishment for protecting their sources instead of keeping the public informed.
That, too, is called deflection.
Paul McMasters may be contacted at email@example.com