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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
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.

© 2001 New York Times corporation

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