- The Washington Times - Tuesday, October 17, 2000

The ill-conceived and ill-administered British Official Secrets Act was enshrined in the federal criminal code by Congress last week. It was buried in the Intelligence Authorization Act for fiscal 2001, and punishes as a felony with up to three years imprisonment the knowing disclosure by federal officials of classified information to the media or other unauthorized persons.

Conviction does not require proof of damage to the national security of the United States, for example, assisting a foreign country in the development of nuclear weapons or disclosing intelligence sources or methods. Indeed, the crime is committed even if the publicity sparked debate and controversy that saved the country from a national security folly, like the 1961 Bay of Pigs fiasco aiming to overthrow Cuba's Fidel Castro. Transmission to an unauthorized person is all that is necessary to trigger a prosecution.

But this celebration of government secrecy is neither necessary nor prudent. It also invites selective enforcement that affronts equal justice under law. Repeal cannot come too early.

Neither the House nor Senate cited a single case of probable damage to the national security attributable to a leak of classified information, per se. That omission is astonishing. Executive and legislative officials and employees share classified materials with the media as regularly as the Earth spins on its axis. Indeed, a day seldom passes without a major media story built around classified documents, like the Pentagon Papers.

In sum, our new Official Secrets Act from across the ocean is gratuitous secrecy for the sake of secrecy. Prior to its enactment, the federal criminal code already punished portentous disclosures of national security information that caused tangible harm or danger to the country. Section 794, for instance, punished gathering or delivering defense information "with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign country." And section 798 prohibited unauthorized disclosures of communications intelligence materials "in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government."

Our constitutional dispensation strongly favors openness over secrecy to cultivate an informed public and to expose malfeasance. As James Madison lectured, knowledge will forever govern ignorance, and a people who mean to govern themselves must arm themselves with the power knowledge gives. And Supreme Court Justice Louis D. Brandeis added that sunshine is the best disinfectant. Of course, enclaves of government secrecy are justified. The Constitution is not a suicide pact. Thus, disclosure or publication of classified information that creates a clear and imminent danger to vital security interests of the United States would be justified. But the burden of proving need should be shouldered by proponents. Government-in-the-sunshine and First Amendment rights of freedom of speech and press should be disturbed only for great causes. The enthusiasts for our Official Secrets Act, however, fell miles short of that standard. What further discredits the new crime of disclosure is the notorious lax record in investigating or prosecuting violations of pre-existing companion crimes that required proof of actual national security injury from an unauthorized disclosure. Identifying the source of a leak was seldom attempted. Moreover, questioning members of the media about their sources for published classified information was taboo, despite the Supreme Court's decision in Branzburg vs. Hayes (1972) denying newsmen a constitutional right to withhold evidence of crime before a grand jury. Thus, prosecutions were as freakish as deaths by lightning bolts, which suggests the problem of classified information leaks was unalarming.

Official Secrets Act crusaders might urge that such prosecutorial stupor could be attributed to the "actual injury" element of national security crimes that the new prohibition is calculated to overcome. But the argument proves too much. It presumes that prosecutions for leaking classified information can generally succeed only if the crime is established whether or not the disclosures are innocuous or beneficial. But it is precisely in the latter cases of "no harm" where imprisonment would be outrageously excessive.

Further worrisome is the fact that candidates for investigation and prosecution under the Official Secrets Act is likely to be numerically staggering. An invidious selection of targets is inevitable. Federal officials are unlikely to be deterred from classified information leaks despite the Act because of the government's past appalling record in identifying culprits and prosecuting cases for violations of companion disclosure crimes. Thus, leaks will continue at a torrential pace, but the FBI will investigate only a handful. Its resources are limited, and it its other tasks more urgent. Political embarrassment to the president or Congress or the race, ethnicity, or religion of the suspect will be the unstated criteria for triggering prosecutions. To borrow from Attorney General Robert Jackson, with so many cases to choose from, "the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself."

There may be something good to be said of our new Official Secrets Act, but if there is, it does not readily come to mind.

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