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The Washington Times
August 27, 2001
page A19

The Big Chill

Anti-leak Proposal Threatens Good Government

by Steven Aftergood

Soon after Labor Day, the Senate Intelligence Committee will consider whether to adopt a controversial proposal that would make it a crime to disclose, or "leak," classified information to an unauthorized person. In the name of increasing security, this ill-conceived proposal could do profound damage to our political system.

There are already laws on the books that make it a crime to disclose specific types of classified information such as the names of intelligence agents, certain kinds of cryptographic information, and so on. It is also a crime to disclose defense-related information to a foreign power with intent to harm the United States. All of that is as it should be.

What makes the new "anti-leak" proposal different, and dangerous, is that it fails to specify any particular category of information that requires the protection of a felony statute. Rather, it says that the disclosure of any information that is called "classified" should be a felony.

This is intolerably broad. As everyone who has ever dealt with national security policy knows, government agencies classify information expansively. One characteristic absurdity is a recent finding by the Central Intelligence Agency that the total intelligence budget from 1947 is properly classified. According to CIA officials, disclosure of this 1947 number could damage national security and jeopardize intelligence sources and methods. Under the pending legislation, anyone who revealed it to an unauthorized person could end up spending 3 years in jail. It would be laughable if it weren't so serious.

It is important to understand that classified information is whatever the executive branch says it is. With few exceptions, it is not defined in law. As a result, by prohibiting disclosure of anything that the executive branch says is "classified," the anti-leak measure would delegate to the executive branch the power both to define a crime and to prosecute it. This is an ominous consolidation of power that threatens the foundations of our political culture.

As a practical matter, there would probably not be very many prosecutions under this proposal. After all, those who leak classified information are already subject to administrative penalties such as loss of clearance or loss of job. Yet the leakers are almost never identified, and it wouldn't become any easier to identify them if the new proposal became law.

But that is beside the point. The point is that the anti-leak measure would have pernicious consequences even if it never resulted in a single prosecution. That is because it would cast a chill upon every interaction between national security officials and members of the general public.

The informal encounters with government officials that are the prerequisite of a healthy democracy would be undermined by the concern that somebody, somewhere has ruled the subject of conversation classified. Diplomats and public affairs officers would be hindered in the performance of their duties. The scope of public deliberation on national security policy could be dictated at will by classification officers, whose decisions would now be backed up by a felony statute.

Ironically, it is those officials who are most scrupulous who would be most affected by the proposed law. The leakers have already demonstrated their willingness to defy the rules. In short, the anti-leak proposal would be a disaster for American democracy. It is a form of legislative malpractice. It is alarming even to see elected officials considering it seriously.

Is there a better way to fix the problem? Is there even a problem in the first place? It is hard to say for sure, since proponents of criminalizing the disclosure of classified information have never bothered to justify their position in public. Certainly, there are leaks of classified information on a fairly routine basis. But in the overwhelming majority of cases, they enrich the public policy debate. They also frequently serve as an important check on executive power.

Still, if one acknowledges the fact that some types of information are sensitive, then it is self-evident that leaks of such information could cause damage. Few would deny this, even within the highly competitive media world.

As a first resort, national security agencies should do more to engage the media directly and to communicate their concerns about unauthorized disclosures of classified information. Those rare cases where actual damage might have resulted should be elucidated to reporters and publishers. If this were done in a credible fashion, it could serve a cautionary function and reduce the publication of such disclosures in the future. If officials cannot credibly articulate the damage from leaks, they might have a new reason to rethink their classification policies.

2001 News World Communications, Inc.

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