Stopping the Leaks
Ashcroft isn?t calling for new legislation to prosecute leakers. But the
battle isn?t over.
By Jane Kirtley
Jane Kirtley ([EMAIL PROTECTED]) is the Silha Professor of Media Ethics
and Law at the University of Minnesota's School of Journalism and Mass
Communications.
Attorney General John Ashcroft has declared that we don't need any new
statutes to make unauthorized disclosure of classified information a crime.
In an October 22 report to Congress, Ashcroft opined that he has sufficient
ammunition in his arsenal to go after government leakers without having to
bother with fresh legislation.
In December 2001, in the wake of the terrorist attacks, Ashcroft formed an
interagency task force to look into how to stop leaks. Also last year,
Scott Armstrong, founder of the National Security Archive, convened a panel
of experts from inside and outside the government to provide some
perspective and input into Ashcroft's deliberations. Armstrong was quoted
in the Washington Post and elsewhere praising the attorney general's
epiphany that it would be more expedient to go after the sources of leaks
rather than championing laws that "would hurt the media." Whew. Bullet dodged.
But there is still much to fear in Ashcroft's report. True, he's not
calling for new legislation at the moment. But he also hasn't ruled it out.
He speculates that "carefully drafted legislation specifically tailored" to
address leaks rather than classic espionage "could enhance our
investigative efforts." And in the meantime, he has lots of other ideas for
initiatives that will chill government whistle-blowers, and those may not
bode well for the press, either.
Ashcroft calls on agencies that originate or handle classified information
to launch "immediate and aggressive" investigations of unauthorized
disclosures. The Presidential Executive Orders governing classification
procedures should be examined, he says, with an eye to expanding the
authority of the director of central intelligence to protect secrets
"across Government." The government should consider using digital
technology to track classified data, he says. The Justice Department and
the FBI will become involved in investigations when the attorney general so
directs. The report is silent on subpoenaing journalists, but that's
something the Ashcroft Justice Department condoned long before September
11, 2001.
All of this, the attorney general says, can be done without new
legislation, meaning the executive branch will take care of it without the
bother of getting Congress involved. That could mean that the only public
input would occur when proposed regulations are published in the Federal
Register.
This might not be so bad if determining what information is classified were
subject to meaningful oversight from other branches of government in the
first place. But it isn't. The Presidential Executive Order (currently, the
one issued by President Clinton in 1995 and modified in 1999) outlines the
broad procedures governing classification and declassification. The
procedures are implemented through regulations drafted by the agencies
themselves. The judicial branch is notoriously reluctant to second-guess
such decisions, fretting about possible consequences to national security.
Let's stipulate that no journalist is interested in publishing information
that would pose a danger to the U.S. But many classified documents don't
threaten national security. The Defense Department and the CIA aren't the
only ones who classify information. Since December 2001, Bush has given the
Environmental Protection Agency and the secretaries of Health and Human
Services and Agriculture authority to declare information "secret."
Ashcroft seems to believe that all leaks are created equal. Nothing in his
report limits the initiatives he proposes only to leaks that endanger
national security. It was this failure to distinguish among different kinds
of leaks that outraged the media when an "Official Secrets Act" was
proposed in 2000--making all unauthorized disclosures of classified
information a felony. Clinton vetoed the act. In United States vs. Morison,
the only successful prosecution of a government employee for leaking
classified information to the news media, Judge J. Dickson Phillips wrote
that the statutes under which Samuel Loring Morison was convicted were
"unwieldy and imprecise." Morison's prosecution in the 1980s passed First
Amendment muster because the government convinced the jury that the leak of
reconnaissance photographs of a Soviet aircraft carrier was "potentially
damaging to the United States," not simply information that was somehow
"related to defense."
Gratuitously exposing military secrets is one thing; providing the public
with information it needs but that the government wants to keep under wraps
to avoid embarrassment or controversy is another. Ashcroft utterly fails to
acknowledge this distinction in his report.
We may have dodged one bullet. But the battle is by no means over.
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