- The Washington Times - Sunday, February 8, 2009



In what has become a regular, but unfortunate practice, the New York Times has again published highly classified information - this time in an article describing U.S. intelligence activities undertaken to thwart the Iran’s nuclear weapons development program. The Times attributed the information to “current and former American officials,” none of whom - of course - “would speak on the record.”

To simulate journalistic responsibility in publishing the information, the article says “several details” about the “covert effort” were omitted from the story because senior U.S. “intelligence and administration officials” had so requested - this “to avoid harming continuing operations.” Nevertheless, the revelations more than likely have caused the described intelligence operations to fail, which in turn increases the likelihood military action will eventually be necessary to prevent the Iranians from developing nuclear weapons. In short, the Times story graphically illustrates why disclosures of classified information cause grave damage to our national security interests - and in this case, threaten directly the safety of us all.

In other Western democracies (e.g., Canada and the United Kingdom) publishing a story including their classified information therein would be a violation of their “Official Secrets Act” and subject reporters and media management to criminal prosecution.

We have no such laws in the United States - even though the laws “work” very well in discouraging the media from publishing what they know to be classified information. However, the laws can also discourage the media from publishing what could - even inadvertently - be classified information. It is this aspect of “official secrets” laws that has argued against them in the United States - though there is no First Amendment protection for publishing classified information, whether claimed inadvertent or not.

Accordingly, and because of the persistent problem that modern-day U.S. administrations - Democratic and Republican - have had with damaging “unauthorized disclosures” of classified information, the fiscal 2001 Intelligence Authorization Act contained the following provision:

“Whoever, being an officer or employee of the United States, a former or retired officer or employee of the United States, any other person with authorized access to classified information, or any other person formerly with authorized access to classified information, knowingly and willfully discloses, or attempts to disclose, any classified information acquired as a result of such person’s authorized access to classified information to a person (other than an officer or employee of the United States) who is not authorized access to such classified information, knowing that the person is not authorized access to such classified information, shall be fined under this title, imprisoned not more than three years, or both.”

This easily understood provision quickly obtained the bipartisan agreement of both houses of Congress and was also agreed to - specifically - by the Executive Office of President Clinton in a “statement of administration policy.”

After all, it was not - by any stretch of the imagination - an “official secrets act,” because it didn’t apply criminal sanctions to the publishing of classified information. Rather, it applied criminal sanctions to United States “officers or employees” who disclosed the classified information to “a person who is not authorized access to such classified information.”

Was it intended to discourage the passing of classified information to the media? Not specifically. It was intended to discourage the passing of classified information to anyone not having authorized access to it. In other words, it fixed responsibility where it needed to be: On the officers and employees of the United States - those charged with the specific and affirmative responsibility for protecting classified information.

So, the legislation, agreed to by the White House, passed by both Houses of Congress and sent to the president for signature, became the law of the land eight years ago - right?

Wrong. Reneging on his agreement to sign the legislation, Bill Clinton, in his final days as president, vetoed it - this after a massive and unprecedented personal lobbying effort by the media, which plainly and intentionally distorted the nature and effect of the legislation by labeling it an “official secrets act.”

At least The Washington Post was straightforward in its objection to the legislation, especially its effect on the paper’s continuing ability to get and publish leaked classified information: “We don’t pretend to be neutral on this subject. Newspapers publish leaked material; our reporters solicit leaks. And some of the leaked material we publish is classified. But it is a mistake to imagine that all leaks of classified information are bad.” HYPERLINK “http://www.fas.org/sgp/news/2001/08/wp082401.html”Editorial, The Washington Post, Aug. 24, 2001

Are absolutely all leaks “bad”? Perhaps not, but it’s not the mundane stuff that gets in the newspapers anyway. And, the government has learned to handle minor or inadvertent disclosures. On the other hand, the vast majority of leaks of classified information that do make it into the newspapers are extremely “bad” for our nation - including those, for example, about our covert action activities - because they jeopardize the safety of our agents in the field and compromise the success of the operations.

Contrary to its intention, the vapid editorial page language quoted above is more persuasive that we probably need an “official secrets act” like the British and the Canadians have. After all, these are far more liberal societies than ours, yet they don’t have any problem requiring that their media refrain from publishing any of their national secrets - nor should we. Again, there is simply no First Amendment right to publish classified information, despite what the Times and The Post would like us to think.

How many intelligence failures or foreign policy disasters caused by leaked classified information will it take for us to revisit this issue? What the bipartisan Congress tried to do to address this problem in 2000 is still a fair and responsible place to start and should be tried again and again until it becomes law.

If it doesn’t work, however, some version of an official secrets act may yet be necessary: No one has the “right” to publish classified information - it endangers us all.

Daniel Gallington was bipartisan general counsel to the Senate Select Intelligence Committee and served as deputy counsel for intelligence policy at the Justice Department.



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