Now the Bush Team Wants to Make It a Crime to Reveal Non-Secrets

For eight years, the Ronald Reagan Administration engaged in a wholesale assault on the public’s right to know. With ideological fervor, it stripped the safeguards intended to protect the public interest in disclosure. It sought to force former officials to sign sweeping secrecy agreements that would have obligated them to lifetime pre-publication review of all books, speeches or articles. The Reagan Administration also engaged in relentless attacks on the Freedom of Information Act.

With the election of President George Bush, many hoped that the obsession with secrecy would decline. But now, little more than a month after the President signed a proclamation celebrating “Freedom of Information Day,” the relentless attacks on openness have resumed.

Little noticed in the President’s new ethics bill is a provision that would make criminal the disclosure of broad categories of unclassified information by former government officials. The bill is the legacy of the Ethics Commission that urged the President to set up a second tier of information “analogous to classified information” in areas such as international trade, disarmament and finance negotiations that former officials could not disclose to their clients. Such a ban, the commission concluded, would help curb abuses that rise when former officials “switch sides” and represent clients before the government.

The President’s ethics bill would do that and more. It would ban disclosure of certain categories of information that may now be properly withheld under the Freedom of Information Act--such as trade secrets and proprietary information. Beyond that, the bill would make criminal the disclosure to clients of information of any negotiation between the United States and another country, as well as any information that an agency believes “would be damaging to the interests of the government.” The Office of Government Ethics would be granted unfettered authority to decide whether information submitted by the agencies should be included in the ban.

It should be noted that Congress has consistently refused to make it a crime to release classified information. Most members realize that to do so would further encourage and legitimize the well-documented excesses of the formal secrecy system. Congress has, on rare occasion, enacted criminal statutes aimed at the disclosure of very narrow categories ofnational-security information, such as the names of covert agents. But even that limited action was taken only after lengthy debate to ensure that the law did not chill public debate on intelligence matters.

Against this backdrop, the President now proposes that Congress pass an open-ended criminal statute to bar disclosure of unclassified material--and he asks that Congress leave the scope of that ban to the discretion of the executive branch. Whatever speculative harm may result from a former official improperly disclosing sensitive government information cannot justify such a draconian change in the way our government operates.

No matter how carefully the law is drafted, it is certain to cast a chill over a wide range of valuable First Amendment activities. If, as the President contends, the disclosure of certain sorts of information to clients could “damage the interests of government,” why wouldn’t the release of the same information to the press, a university audience or a congressional hearing pose the same threat? May a client be present in the audience when a former official is giving a major address on trade policy, if information covered by the law is released? May the former official suggest to the client that the information may be available under the Freedom of Information Act or from a sympathetic current official (who, ironically, would not be subject to the law)? Indeed, may a former official really be penalized--as the bill suggests--for disclosing information that is available to anyone under the Freedom of Information Act or that a current official can release with impunity?

Without a doubt, the President’s bill is unworkable and unwise. At best, it would demand broad self-censorship on the part of former officials, who would find the threat of criminal sanction a powerful deterrent to their participation in public debate. At worst, it would lead to more sweeping “secrecy” statutes and would further erode the Freedom of Information Act.

The President’s proposal reveals a remarkable lack of concern for constitutional values. Public access to government information is a cornerstone of democracy. Congress should not permit the ethics debate to be transformed into a vehicle for secrecy.