Read the news, go to jail

Unencumbered by a 1st Amendment, Britain for almost 100 years has had an Official Secrets Act to prevent leaks to the media and to prosecute offenders, including journalists.

Some Bush administration officials and members of Congress are casting a longing eye at the British law. If only the United States had a similar law, their reasoning goes, the reporters who revealed CIA-run prisons in Eastern Europe and the National Security Agency’s warrantless wiretapping of terrorism suspects would be prosecuted instead of receiving Pulitzer Prizes.

The Constitution remains a barrier to those who would restrict the flow of information to the media -- and thus to the public. But administration policies are gradually chipping away at its protections. The nation is in danger of having an Official Secrets Act not through passage of a law -- although that is still a possibility -- but through incremental steps.

The evidence is mounting:

* Judith Miller, as a reporter for the New York Times, spent 85 days in jail after refusing to name a confidential source in the investigation by Special Prosecutor Patrick J. Fitzgerald into the leak of the name of CIA officer Valerie Plame. Miller and half a dozen other reporters have been questioned by the prosecutor.

* Two former staff members of the American Israel Public Affairs Committee, or AIPAC, a pro-Israel lobby, are on trial in federal court on charges of conspiring to violate espionage statutes by obtaining defense information from a Pentagon official. Both lobbyists are civilians, and the government does not claim they received any documents, classified or otherwise.

* The National Archives and Records Administration has been embarrassed by the revelation that at least 55,000 documents formerly available to researchers have been withdrawn and reclassified under secret agreements with the military and the CIA. The deals were so secretive that the documents simply disappeared from the shelves. Historian Matthew Aid, who discovered the reclassification, pointed out that because he possesses some of the documents, he might be in violation of the Espionage Act. Allen Weinstein, who heads the National Archives, has halted the documents’ reclassification.

* The FBI is seeking access to the papers of the late muckraking columnist Jack Anderson in order to seize any classified documents in his files. Anderson broke many stories the government tried to keep secret. His family, citing the 1st Amendment, has refused the agency’s request. It is unclear how far the FBI plans to push the matter, or whether the government will next try to examine the files of other journalists, dead or alive.

* Porter J. Goss, director of the CIA, has testified that “it is my aim and it is my hope” that reporters who receive leaks on intelligence subjects are hauled before a grand jury and forced “to reveal who is leaking this information.” The CIA dismissed Mary O. McCarthy, a senior official, for allegedly having unauthorized contacts with the media and disclosing classified information to reporters. The agency let stand the impression that she had leaked the story of the CIA secret prisons for terrorists in Eastern Europe to Dana Priest of the Washington Post, who won a Pulitzer Prize for her account. McCarthy’s attorney says she was not the source of the story and has never leaked classified information.

* Congress is considering legislation that would enable the intelligence agencies to revoke the pensions of employees who make unauthorized disclosures. The measure also would allow the CIA and NSA to arrest suspicious people outside their gates without a warrant.

Although the indictment of the two lobbyists for the American Israel Public Affairs Committee is replete with references to “classified information,” the espionage laws, with one narrow exception, refer only to “information relating to the national defense.” The spy laws were passed in 1917 during World War I. A 1951 presidential executive order created the current system of classifying documents.

There is no law specifically prohibiting leaks, so the government has used the espionage laws to try to combat the practice. President Clinton vetoed anti-leak legislation passed in 2000 that would have made it a crime for a government official to disclose classified information.

To criminalize leaks of government information simply because the information is marked “classified” is absurd on its face. In 2004, the most recent year for which figures are available, the government classified 15,294,087 documents. It is hardly likely that the government has that many real secrets to withhold from its citizens.

Unnecessarily classifying documents is a fact of life in Washington. Many bureaucrats know that unless they stamp a document “secret” or “top secret,” their superiors may not even bother to read it. One government agency classified the fact that water does not flow uphill. During World War II, the Army labeled the bow and arrow as a secret, calling it a “silent flashless weapon.”

The government’s theory in the lobbyists’ prosecution could, if it stands, change the nature of how news is gathered in Washington and how lobbyists and academics interact with the government.

“What makes the AIPAC case so alarming,” said Steven Aftergood, director of the Project on Government Secrecy of the Federation of American Scientists, “is the defendants are not being charged with being agents of a foreign power but with receiving classified information without authorization. Most Americans who read the newspaper are also in possession of classified information, whether they know it or not. The scope of the charges is incredibly broad.”

Officials in Washington talk to reporters every day about matters that may, in some government file cabinet, in some agency, somewhere, be stamped with a secrecy classification. How would a journalist be expected to know that he or she was a “recipient” of classified information, and in theory subject to prosecution under a law that was meant to catch spies?

The original British Official Secrets Act, passed in 1911, allowed the crown to prosecute anyone, even a journalist, who published a railroad timetable. The act was made less draconian in 1989, but it still carries tough provisions and can apply to journalists.

Fleet Street also is guided by Defense Advisory Notices that warn the media against publishing data about military operations, nuclear or other weapons, codes, “sensitive installations” or the intelligence services.

At least until recently, the U.S. government applied the espionage laws to officials who leaked, not to the recipients. “Otherwise,” Aftergood said, “Bob Woodward would not be a wealthy, bestselling author. He would be serving a life sentence.”