It would have made Founding Fathers George Washington and Thomas Jefferson spin in their graves. On Oct. 12 Congress aped the British “Official Secrets Act” and made it a felony to disclose information without notice or other warning it is classified, or even that it was classified, after its public release.
In bypassing normal congressional committee channels and sneaking approval through unscheduled voice votes, the congressional leadership and the two House intelligence committees ensured passage of legislation that will not only severely restrict free speech generally, but also undercut the already tenuous rights of federal government whistle-blowers who disclose wrongdoing. Only President Clinton’s decision as to whether to sign the bill stands in the way of this outrage becoming law.
Claims of congressional supporters that the bill would not change the meaning of “classified” are disingenuous at best. Tucked into the fine print, the legislation actually removes current requirements that to be classified information must be clearly marked “secret” or bear some other warning. Should Mr. Clinton accede to the new definitions contained in the bill, government whistle-blowers, and even nongovernment officials such as journalists, may be prosecuted for unauthorized disclosures whenever they have “reason to believe” information was classified, even if it isn’t.
To date, the controversy surrounding the bill has focused on the criminalization of leaks of classified information, since existing law already bans classified leaks, and clearly establishes that national security threats can be prosecuted. Now, barring appropriate action from Mr. Clinton, the unauthorized disclosure of anything the government deems “secret” will be a crime per se. There are no safeguards for those whose actions defend national security against corruption or bureaucratic abuse of power shielded by secrecy.
The current legislation is a remake of a bad movie we’ve seen before. In the 1980s the National Security Council invented a word “classifiable” which imposed liability for releasing anything that “could have” or “should have” been classified. In hearings on Capitol Hill, a key official gave up the bureaucracy’s game when he boasted that the NSC’s definition covered “virtually anything.” In practice, its revival means that before disclosing most forms of official misconduct, whistle-blowers must seek advance permission and expose themselves to career-ending retaliation, or risk criminal liability.
The new definition of what is “classifiable,” together with the criminal liability, amounts to a virtual gag order under which just about anything can be turned into an official secret. It realistically ends anonymous dissent, requires advance permission to exercise free speech rights, and locks in advance warnings by forcing whistle-blowers to check the status of unmarked information. That permits wrongdoers to seal cover-ups by destroying evidence or classifying information after the fact. Would-be whistle-blowers must either reveal themselves to management through a prior inquiry, or guess about criminal liability by disclosing information that may be unmarked but classified.
Penalties run up to three years in prison, and there are few measures, short of bringing back the rack and public flogging, that can better cow national security whistle-blowers into silent observers of fraud, waste and abuse.
Appropriately, legislative champions of the Official Secrecy Act orchestrated its passage from the shadows of parliamentary maneuver and stealth. As House Judiciary Committee member Rep. Bob Barr warned: “If this provision is signed into law, [whistle-blowing] disclosures would become virtually nonexistent.” The ranking committee Democrat, John Conyers, said even more bluntly: “[I]t will scare the bejesus out of whistle-blowers and they will be able to be criminally prosecuted.”
It is not surprising that the supporters of the bill bypassed the House Judiciary Committee. Committee Chairman Henry Hyde and Mr. Conyers jointly protested that the bill “has profound First Amendment implications, and goes to the very heart of the ability of the public to remain informed about matters of critical public interest, which often relate to governmental misdeeds.”
Here are a few examples of disclosures from whistle-blowers who, should Mr. Clinton sign this legislation, would be considered criminals for warning the public with information that could have been claimed “classifiable:”
* Sloppy security creating vulnerability to espionage, theft of classified information and terrorists at defense and national energy facilities.
* Evidence indispensable to exposing human rights abuses like the My Lai massacre and 1976 assassination in Washington of a former Chilean diplomat.
* Pentagon misrepresentations about multi billion dollar cost overruns on weapons.
* Safety violations that made nuclear weapons and power plants accidents waiting to happen.
* False statements concealing leaks of radiation and other toxic substances on workers and into the environment.
* Systematic corruption in U.S. Justice Department programs training foreign police designed to promote government accountability and defend human rights.
If Mr. Clinton signs the Official Secrecy Act, the anti-gag legislation will be virtually worthless. And one of his presidency’s most enduring legacies will be to have shrouded corruption and government abuse of power behind an assault on free speech.
Martin Edwin Andersen, a former senior adviser for policy planning with the criminal division of the Department of Justice, was the pioneer whistle-blower in the recent scandal involving foreign police and prosecutorial training programs.