SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 64
July 5, 2011

Secrecy News Blog: http://www.fas.org/blog/secrecy/

COURT SHOULD NOT RECOGNIZE "GOOD LEAKS," GOVT SAYS

To admit the possibility of a "good leak" of classified information would undermine the entire classification system, government attorneys told a court last week, and therefore it should not do so.

The government's statement was presented in a response to New York Times reporter James Risen's June 21 motion to quash a subpoena to compel him to testify in the case of Jeffrey A. Sterling, a former CIA officer who is accused of disclosing classified information to Risen without authorization.

In his motion to quash, Mr. Risen had urged the court to consider "the public interest in newsgathering, measured by the leaked information's value" and the damage to the public interest which would ensue from compelling him to testify.

But the government said the court should do no such thing.

"[E]xplicitly recognizing 'good leaks' of classified information... would effectively destroy the system through which the country protects that information," the government said in its July 1 response.

"It would encourage government employees who are provided access to classified information to betray their commitment to safeguard it by suggesting that they, too, should undertake their own independent analysis of the effect of their disclosure of that information should they desire to do so. It would also provide a ready-made defense for every disgruntled intelligence community employee or contractor who discloses such information to the press because he harbors a grudge against the institution for which he works," the government attorneys argued (p. 28).

From a different perspective, "good leaks" are a uniquely effective remedy to what President Obama once called "the problem of over-classification." Unless and until overclassification can be curtailed through other means, some types of leaks serve as a necessary safety valve, especially when they reveal classified information involving criminal activity, misconduct or mismanagement.

In its response to Risen, the government argued forcefully against Risen's invocation of a reporter's privilege and urged the Court to require him to testify in the Sterling case. The legal issues will be argued before the court at a July 7 hearing.

JOURNAL OF NATIONAL SECURITY LAW AND POLICY

The latest issue of the Journal of National Security Law & Policy (vol. 5, no. 1) presents several papers on secrecy, disclosure, and related topics by authors including David Kris, Louis Fisher, Geoffrey Stone and Stephen Vladeck, among others.

Titles include "The Publication of National Security Information in the Digital Age," "Burn After Viewing: The CIA's Destruction of the Abu Zubaydah Tapes and the Law of Federal Records," and "Law Enforcement as a Counterterrorism Tool."

For subscription information and to read the articles online see here:

THE ARECIBO IONOSPHERIC OBSERVATORY, AND MORE FROM CRS

Recent reports from the Congressional Research Service that have not been made readily available to the public include the following.

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues, June 20, 2011:

The U.S.-Canada Energy Relationship: Joined at the Well, June 17, 2011:

Foreign Assistance: Public-Private Partnerships (PPPs), June 13, 2011:

Considerations for a Catastrophic Declaration: Issues and Analysis, June 21, 2011:

International Climate Change Financing: The Green Climate Fund (GCF), June 23, 2011:

Legislative Branch: FY2012 Appropriations, June 15, 2011:

The Arecibo Ionospheric Observatory, June 16, 2011:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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