One of John Wayne’s classic lines was as John Stryker, a hard-edged Marine sergeant, in “The Sands of Iwo Jima.” Sgt. Stryker famously lectured his recruits: “Life is tough, but it’s tougher if you’re stupid.”
I was reminded of that line last month as I learned of renewed interest in a piece of legislation variously called The Free Flow of Information Act or, less formally, the “journalist shield law.” Supporters of the proposed law believe it is necessary to protect reporters’ confidential sources from being discovered through federal subpoenas.
In my view, and indeed in the view of many in the American intelligence community, this seems to be a solution in search of a problem. Mike McConnell, then director of national intelligence (DNI), said as much in the summer of 2008 when he pointed out that “we do not see the problem that this bill is meant to address.” Former Attorney General Michael Mukasey more recently noted that cases involving federal subpoenas for reporter source information have averaged slightly over one per year since the early 1990s.
In January 2008, 12 senior leaders of the intelligence community (including me, the DNI and the undersecretary of defense for intelligence) signed a letter to the leadership of the Senate opposing the bill as it was then drafted, expressing the fear that it would “undermine our ability to protect intelligence sources and methods.”
None of us were insensitive to the principles of the First Amendment, to the role of the press in our democracy or to the delicate balance and inherent tension between security and openness. But none of us understood how this bill would make things better.
To be fair, changes have been made since the 2008 bill. In his own recent letter (with Attorney General Eric H. Holder Jr.) to Sen. Patrick J. Leahy, Vermont Democrat and chairman of the Senate Judiciary Committee, DNI Dennis Blair pointed out that these changes had enabled him to support the bill, but there does not appear to have been a process (unlike in 2008) to gauge or reflect broad intelligence community views.
The amended bill also does not address many concerns raised by Mr. Blair’s and Mr. Holder’s predecessors. Even in its modified form, the bill still requires a judge to determine that leaked information was “properly classified” and that the leak would cause “significant and articulable harm to national security” - a major shift of national security responsibility from an elected (and accountable) president, who may have to answer for an attack on the country or its troops, to a judiciary whose role is generally not to make national security policy or balance risks to the country’s security.
This new judicial process likely will require the disclosure of even more classified information in order to meet the bill’s requirements. Even with such additional disclosure, there is no assurance that a judge, now occupying this new and uncharted role of national security decision-maker, would understand the stakes involved.
All to what end? Hardly any reasonable person could argue that too few national security secrets are making their way into the public domain. At a recent ABA conference, the DNI’s own lawyer pointed to “leaks of classified information that have caused specific and identifiable losses of intelligence capabilities - not just theoretical, but this appeared in the press and this target changed his behavior.”
The Department of Defense’s top lawyer chimed in: “There is a sense that we overclassify or something, but when you leak classified information, you’re obviously breaking the law.”
The CIA’s general counsel pointed to the crux of the problem: It is “very difficult to make a criminal case from a leak.”
I know. When intelligence officials see important classified information revealed in the press - when someone has obviously (and without authorization) leaked classified material - those officials file what’s called a “crimes report.” In my 10 years working at the national intelligence level, I directed, participated in or have been aware of literally scores of such reports. To the best of my knowledge, only one - the leak of Valerie Plame’s identity as a CIA officer - has ever gotten to a courtroom, and that was about perjury rather than unauthorized disclosure.
That hardly suggests an imbalance in the current law or in its implementation against “the free flow of information.” Quite the contrary, our government routinely seems to hemorrhage secrets - without consequence to those who reveal them.
Making it more difficult to identify leakers will make it easier for them to leak; that seems self-evident. That also seems to be the intent of legislation clearly labeled The Free Flow of Information Act. There are obviously a range of views on this subject. My views? See Sgt. Stryker above.
• Michael V. Hayden is a retired Air Force general and former director of the Central Intelligence Agency and National Security Agency.