Question authority: Part IV--national security leaks to the press: what to do?

[Part I]
[Part II]
[Part III]

Under what circumstances should a national security employee decide to disclose classified information, and to whom should he/she disclose it? Should the leaker be met with penalties for these actions, and, if so, what should the punishment be? And what's the role of the press? Should it be allowed to publish any leaks short of treason, no matter what the national security consequences? And if not, how should those consequences be judged, and by whom?

Those who argue that leaks to the press are never justified, and should always be punished severely, believe that the framers have already put sufficient checks and balances in place so that the system can deal with any situation that could come up without the need for the press to get into the act and sensationalize and publicize the situation prematurely. The proper course of action for a national security employee would be to launch an internal investigation within his/her own agency, and if that fails to remedy the prolem, to go to the committee in Congress charged with Congressional oversight. The legislative branch would be acting in time-honored fashion as a curb on the executive branch, just as the Constitution intended.

Those who disagree with the above base their contention on two ideas: distrust of government oversight (fostered by such events as the initial My Lai coverup, as discussed in Part II), and the public's right to know. In general, they also tend to routinely downplay the security repercussions of disclosures such as the CIA detention centers in Europe (I discuss the origins of this attitude here and here).

Recent events indicate that some seem to consider national security employees to be justified in making their own individual decisions to act as watchdogs, spilling the beans and breaking their oaths of secrecy if they merely happen to believe there's an illegal act on the part of the CIA, and to believe that an internal complaint and investigation (the usual procedure) wouldn't get the results they're looking for, without actually launching one:

"This a matter of principle," said Ray McGovern, a former fellow CIA analyst, "where [McCarthy] said my oath, my promise not to reveal secrets is superceded by my oath to defend the constitution of the U.S."...McCarthy's supporters say if she revealed classified information, it's because she strongly believed what was happening was wrong. With unsympathetic superiors and a Congress that has been reluctant to investigate, she had no one to turn to but the press.

Did McCarthy (or whoever the leaker actually was) really have no avenue but the press? If the leaker's conscience was troubled by confidential information gained in the line of duty, didn't that person also have a duty to go through internal channels or to Congress? Was this ever done in the detention center case, or did the leaker simply cut to the chase (and the press), assuming an internal investigation would go nowhere?

When that process is short-circuited, the leaker unloads his/her information in the most public way possible, which can end up being the most damaging way. Right now the only people deciding how bad that damage might be before it occurs are the leaker him/herself--hardly the most objective judge of that--and the press (ditto). Once the story is published, it's too late: the cat is out of the bag, the horse is out of the barn.

The judiciary was meant to act as the check and balance on potential leakers and the press--and in the past, of course, we also had more self-imposed restraint on the part of the press, especially in times of war. Now, however, not only does the press see itself in the role of government adversary and whistleblower, but personal repercussions are few and far between, short of treason (a very hard case to make in most situations).

The landmark Supreme Court decision in the Pentagon Papers case gave a relatively free reign to the press in such matters, freeing it from the fear of prosecution except in the most egregious of cases (the excerpt that follows is from the post of mine that I just linked):

In 1997, Adam Clymer of the Times wrote, in a review of a new book--The Day the Presses Stopped: A History of the Pentagon Papers Case, by David Rundestine:

"The Supreme Court's 6-to-3 decision in the Pentagon Papers case was a monumental victory for The New York Times and The Washington Post and a huge defeat for the Nixon Administration. In practical terms, it meant that the United States Government bears an awesome -- perhaps impossible -- burden before it can censor the press. But the opinion written by Justice William J. Brennan did not tell courts how to weigh that burden, though it made clear that a just claim of injury to the national security is not enough."

So, "a just claim of injury to the national security is not enough." Think about it: what would be enough? How bad an injury to the national security is sufficient to muffle a story, and how certain does this injury have to be?

So that brings us to where we are today. And Houston, we've got a problem (although I'm sure some would disagree with me!)

How do other countries with a tradition of a free press deal with the situation? Some punish security violations far more stringently. Britain, for example, has a statute called the National Secrets Act, which establishes penalties not only for the leaker, but for the press publishing the information. And there is no discretion given to the leaker or the press on such matters:

...due to the extreme strictures of Britain's Official (National) Secrets Act, certain topics can be designated as matters of national security of which any published (or public?) discussion is completely forbidden ; if this order is violated, the "offenders" can be immediately incarcerated, their publication facilities etc. closed/dismantled; further, if any mention whatsoever of those actions (i.e. against the publisher of the forbidden information) is made by any other publisher, the publishers of that subsequent information are likewise subject to the exact same penalty...According to other terms of this National Secrets Act, any publisher/news organisation who receives information, publication of which would violate the previously noted terms, is obliged to inform British authorities of that fact -- as well as the source of the information.

The British law represents the opposite extreme in dealing with the problem of leaks to the press--perhaps too extreme? In the US at present, the only possible legal penalties (as far as I know) are charges such as espionage and treason, very high crimes indeed--and very difficult, if not impossible, to prove in instances that don't actually involve outright spying. Loss of job and/or security clearance is of course also possible. Some ways to stretch the espionage laws to cover the situation of leaking to the press have also been tried, most notably in a 2003 case involving a leak by a lobbyist to the Israeli officials.

Should we pass a law as stringent as Britain's? At the moment, I'm not sure what my opinion is on that; I don't know how the British law has been working so far, for example. However, in doing research for this post, I discovered that a law something like the British Official Secrets Act actually was passed in the US--amazingly enough, prior to 9/11, under the Clinton administration.

The law was promoted by none other than the now very beleaguered George Tenet, who was head of the CIA under Clinton and during Bush's first administration. The bill was in fact passed by Congress in 2000, on Clinton's watch; and it even had Democratic support at the time (any bets on whether that would happen now?), according to this Scripps-Howard article from October of 2000:

The ship of state, some say, is the only ship that leaks from the top.

So many high-ranking officials could theoretically get tossed in the brig under a sweeping new law about to be signed by President Clinton. The law, drafted without public hearings, for the first time makes it illegal to leak any classified information.

"Because of the seriousness of the leaks and the releasing of classified information, we needed to take some additional steps," said Rep. Gary Condit, D-Calif., who serves on the House Permanent Select Committee on Intelligence. "We hope it helps." Condit said he and other Democrats attempted to modify the measure to account for some concerns. But the full implications of what critics are calling America's first Official Secrets Act remain unclear - for whistle-blowers, for journalists, and for security officials themselves...

"This is like a sea change," said Kate Martin, director of the Center for National Security Studies. "Congress has never even gone half this far."

But the sea didn't change, after all. The article's prediction turned out to be incorrect: Clinton did not sign the bill. He vetoed it, instead. The article doesn't say why, and I could find no further information on that. And the 2000 bill never contemplated penalties for the press, by the way; it limited punishment (a fine of up to the relatively paltry sum of 10,000 dollars, and a possible imprisonment) to the leaker him/herself. Still, it failed to garner enough votes to override Clinton's veto.

So, what about some version of the British act? Is it overkill, causing more potential problems than it fixes? Does anyone actually know how the act is working in Britain--its pitfalls and its accomplishments? If so, I invite you to come forward in the comments section--inquiring minds want to know.

It seems logical to me that in order to have any sort of workable national security at all, it should only be breached for extremely serious governmental offenses, and then only after other ordinary channels have been exhausted and found wanting. My suggestion would be penalties for national security leakers who go to the press first, without trying other remedies, as well as penalties for the press if the information damages national security as defined by the courts (and I would hope they would define it at least somewhat less narrowly than in the Pentagon Papers decision).

The goal of instituting these changes would be to motivate both leakers and the press to cease and desist except in cases in which (a) the leak involves a very major governmental offense; (b) has already been reported to the proper authorities in the way the Constitution envisioned; and (c) has been covered up. The idea is to create that situation I spoke of in Part III, in which the needs of national security and the public's right to know would come into better balance.

Untrammeled executive governmental power is dangerous. But we also can't afford to ignore the danger of individual leakers and journalists with an agenda, setting themselves up as unchecked arbiters of what secrets should be leaked and publicized around the world. It makes a mockery of national security, and of the oaths taken by those sworn to protect it.