From the Fall 2005 issue of The News Media & The Law, page 26.
By Rebecca Daugherty
After two unsuccessful efforts to enact a U.S. version of Britain’s notorious Official Secrets Act prohibiting disclosure of confidential information from government sources by employees, Congress is again considering the idea. Passage of the measure — and even its introduction — is uncertain, but at least one congressman is enthusiastically pursuing it.
Rep. Peter Hoekstra (R-Mich.) called for “zero tolerance” of leaks of classified information in a speech to the conservative Heritage Foundation in July. Leaks have given the enemy “our play book,” he said. A leaked report on weapons of mass destruction details numerous exposures that have cost plenty and caused harm, he said. Specifically, a leak from the report about al-Qaida destroyed the intelligence community’s ability to keep monitoring Osama bin Laden, he said. Hoekstra declined more specificity, saying that many of the details in this report remain classified and that he cannot divulge them.
While journalists provide an important service, “they can also play a key role in preserving our national security,” said Hoekstra, chairman of the House Permanent Select Committee on Intelligence. In mid-September, the committee held a hearing on leaks that was closed to the public and press. It was the first of three planned hearings on the subject. There are plans to open a later hearing to question news media representatives.
Rep. Jane Harman (D-Calif.), the highest ranking Democrat on the panel, told The Washington Post that she agrees with Hoekstra that “the time has come” to adopt measures that help find and prosecute leakers of classified information. But Harman said the law should only provide measures “consistent with the First Amendment.”
Nine media groups, headed by the American Society of Newspaper Editors and including The Reporters Committee for Freedom of the Press, wrote to the committee in mid-September seeking assurances that the press would be part of the dialogue if bills to curb leaks are developed. “Leaks to the media, even of classified information, have served as a vital source of information about public issues and the operation of government,” they wrote.
They asked the committee to consider the many instances of public importance when classified information was disclosed to journalists: the Pentagon Papers; lapses in security creating vulnerability to espionage, such as the case of former CIA agent Edward Lee Howard, the American intelligence agent who defected to the Soviet Union; government radiation and biological warfare experiments on unwitting Americans; and waste, fraud and abuse in the defense industry. They said media are “keenly interested in preserving free discussion of important public issues of the day, while preventing legitimate harm to national security.”
Congress in 2000 passed a measure to create criminal penalties for the unauthorized disclosure of classified information, but President Bill Clinton ultimately vetoed it. Its promoters introduced a similar measure in 2001 but, at the request of then-Attorney General John Ashcroft, did not go forward with it. Congress instead asked Ashcroft to study whether a new law was needed. In an October 2002 letter to Congress, he said that, based on the findings of an interagency task force to study unauthorized disclosures, he would not recommend new legislation “at this time.” His report concluded that, although no comprehensive law provides criminal penalties for leaks of classified information, current statutes suffice to prosecute leakers if they can be identified.
The government has proved more than once that it can protect “official secrets” with no new law. It successfully prosecuted Jonathan Randal, a Drug Enforcement Agency analyst in Atlanta who served prison time for giving a London newspaper information in DEA’s files about a member of Parliament. And two special prosecutors have successfully sought contempt citations that most recently led to the jailing of New York Times reporter Judith Miller and confinement of WJAR-TV reporter Jim Taricani in Providence, R.I., for not identifying sources in federal court.
Sponsors of the 2000 and 2001 bills to punish government leakers distinguished those measures from Britain’s Official Secrets Act because they sought only to punish government providers of information, not journalists who receive it.
However, in the United States reporters who have refused to identify their government sources have not always gone unpunished, and have faced contempt penalties or the threat of them for not telling where they got their information.