- The Washington Times - Wednesday, September 5, 2001

A few months ago I received the U.S. Office of Special Counsel's Public Servant Award for protecting "important security interests" by blowing the whistle on leaks of classified information, corruption and other national security breaches at the Criminal Division of the Justice Department. I had worked there as a senior adviser for policy planning in the department's overseas training programs.

In a few months, if a bill being attached to the intelligence budget is signed into law by President Bush, anyone imitating my example will not be rewarded, but rather could go to jail, for "committing the truth" against bureaucratic misdeeds.

Last fall President Clinton vetoed an effort by Sen. Richard Shelby, a ranking member of the Senate Intelligence Committee, that would have established America's first-ever "official secrets act" a violation of First Amendment free speech protections and a move that will stifle informed public debate on critical national security issues.

Now the Alabama Republican has scheduled a perfunctory committee hearing today for a clone bill that would criminalize the unauthorized disclosure by federal employees of any type of classified information.

The most damaging leaks of secrets in recent years have not come from a Fifth Column of federal workers meeting surreptitiously with members of the press to divulge the nation's most closely held information. Rather it has been the sloppy enforcement of security procedures (resulting in the disappearance of laptop computers containing top secret data, for example), as well as a dismaying number of traitors inside the security establishment who remained undetected for years.

But the best defense is a good offense, and the security establishment finds it is now able to deflect blame for its own record of lost secrets by endorsing proposals that seriously threaten the free speech rights of the more than 3 million Americans who currently possess job-related security clearances.

And for all the breathless assurances made by the intelligence community about the need for the remedies provided by the official secrets proposal, those remedies are actually unnecessary. The law currently criminalizes leaks of specific and narrowly defined information where there is identifiable damage to national security. Prosecutors already have at their disposal a legal arsenal that allows them to indict anyone who intentionally harms national security, helps a foreign power or exposes U.S. intelligence agents.

Finally, the potential for harm that would be created by this end-run around the Constitution is mind-boggling. It allows almost any revelation by a public official to be a cause for criminal prosecution. No longer will the government bear the burden of proving that an individual intended to breach national security it is the individual who will be forced to prove he or she is innocent. While reporters would not be prosecuted for publishing secrets, journalists could be compelled to either reveal their sources or face indefinite jail sentences. It's hard to think of something with more of a chilling effect on legitimate exchanges between public officials and the public on vital issues of national security policy.

Bureaucratic wrongdoers who thrive behind the comforting wall of official secrecy will also be delighted if the criminal leaks bill is made law. For example, my own whistle-blower disclosures to Congress and the media included evidence of leaks of highly classified information to people seeking the documents for their own personal purposes. I also complained about visa fraud committed in Russia by a top adviser to then-Attorney General Janet Reno on behalf of a Moscow girlfriend who had previously been denied entry into the United States. According to the department's own Inspector General's report released last September, the conduct of the department's top troubleshooter in Russia made him vulnerable to blackmail or extortion by foreign spies or international mafiosi.

However, under the criminal leaks proposal, the next person who dares to protect national security information by confronting their bosses' criminal misconduct could face prosecution for his efforts.

Ironically, President Bush issued an executive order on ethical behavior in January that requires federal employees to combat waste, fraud and abuse of power. Passage of the official secrets bill will make it a crime under many circumstances to obey the president's good government directive.

Martin E. Andersen is media director for the Government Accountability Project, a Washington-based whistle-blower protection organization.


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