Attacks spur new interest in leaks bill
From the Fall 2001 issue of The News Media & The Law, page 15.
By Heather Palmer
A culture of secrecy has emerged within the U.S. government in response to the terrorist attacks on the United States on Sept. 11, a mood that has moved Congress and President Bush to take considerable steps keeping classified government information secure.
President Bush seems to be increasingly hesitant to confide in Congress about certain national security issues, while a congressman has resurrected a previously unsuccessful “Officials Secrets Act,” a bill that would make leakers of classified information felons.
Keeping secrets has consumed the White House and Congress.
The New York Times reported that President Bush became furious with lawmakers over the leaking of sensitive material, imposing a policy on Oct. 5 that he would brief only eight of the top lawmakers on classified law enforcement information.
This policy led to objections from some members of Congress. Bush then loosened his policy to include members of the Foreign Relations and Armed Services committees.
White House spokesman Ari Fleischer said: “If they need to know, it will be on a need-to-know basis.”
On Oct. 9, Bush gave Congress a stern lecture.
“I suggest if they want to relieve that heartburn, that they will take their positions very seriously and that they take any information they’ve been given by the government very seriously,” he said. “I want Congress to hear loud and clear it is unacceptable behavior to leak classified information when we have troops at risk.”
But Congress, too, is considering tightening its hold on secrets.
The Classified Information Protection Act of 2001, introduced just 10 days after the attacks, proposes to punish those who leak classified information and those who disseminate it. Punishment could include a fine up to $10,000 and three years in jail.
“This would be the most sweeping pre-publication review ever thought of or proposed,” said Scott Armstrong, a former Washington Post reporter and a founder of the National Security Archive. “It’s not just changes, not just inhibitions, not just corrections or modifications, they are flat out stopping the way the press is working now.”
The secrecy bill, sponsored by Rep. David Vitter (R-La.), is almost identical to a provision in last year’s Intelligence Authorization bill sponsored in the Senate by Richard Shelby (R-Ala.). In what came to be called an “Official Secrets Act,” the Shelby bill passed through both the Senate and the House last session with no public hearings. President Clinton then vetoed it in November 2000, calling the measure “a badly flawed provision” that could “unnecessarily chill legitimate activities that are at the heart of democracy.”
“It’s potentially dangerous for a government spokesman,” former Defense Department spokesman Kenneth Bacon said in published reports before Clinton vetoed the measure. “It’s disastrous for journalists. It’s dangerous for any official who deals with the press in the national security.”
But Andrea Andrews, Shelby’s press secretary, said: “Clearly leaking classified information is a problem, and it’s going to continue until we do something about it.”
Earlier this year, provisions of the bill were rewritten and attached to the Intelligence Authorization Act, but were withdrawn after a Sept. 5 Senate Intelligence Committee hearing about the bill was cancelled at the request of Attorney General John Ashcroft. The New York Times reported that Ashcroft requested the cancellation because he needed more time to study the issue.
Andrews said Justice officials would not prosecute journalists under this law.
“This is not about the media,” she said. “It’s about the people who knowingly and willfully leak classified information.”
But press advocates say that when the government prosecutes employees who leak classified information, the journalist will be the one subpoenaed as a witness to the crime.
“The danger is it criminalizes all conversation or contact journalists have on a daily basis in the national security sphere,” Armstrong said. “Even official briefings to the press result in reporters calling other people to get information confirmed or correct the spin or probe further.”
According to Armstrong, it would make briefings the only information source available to journalists, and because of that journalists wouldn’t know if they were being lied to or not.
“Government’s position wouldn’t be credible, people would totally spin things without corrections, and any contact with the press would be considered criminal unless authorized by someone above them,” he said.
The new “anti-leak” proposal is different from the existing law. The law already prohibits the release of information that would compromise national security. Both Shelby’s and Vitter’s measures would impose a broader standard by making it a felony to leak virtually anything the government has deemed classified.
Press advocates say the bill creates several strikes against the public’s right to know by ending anonymous dissent and requiring advance permission for government employees to exercise free-speech rights. The bill would also give wrongdoers early warning to destroy evidence.
Anyone who used to work for the government would be unable to disclose information. This includes former employees who are now news commentators, editorial writers or reporters, such as former Pentagon spokesman Pete Williams, now at NBC News.
The introduction of Vitter’s bill and Bush’s demand for secrecy have many media groups holding their breath.
“The press may no longer do what it has done from the beginning, something they have done in a sophisticated manner since World War II,” Armstrong said. “The danger is not only that it would pass, but with the current environment and feelings on terrorism, a group could see this as a time to silence the press.”