The Secrecy Police Will Be Back Soon

President Bill Clinton will be remembered for many things, not all of them wonderful, but not the least of his legacy is that in the waning days of his presidency, he preserved the 1st Amendment by vetoing a bill that would have created a British-style Official Secrets Act in America. Yet, supporters of the bill are bound to try again in the new Congress.

While the nation was focused on the presidential election in the weeks before the bitter legal battle in Florida, a CIA-sponsored bill was slipped through Congress, with no public hearings, that would have handed to the executive branch the equivalent of the “crown privilege” that restricts press freedom in Britain. The measure was sponsored by Sen. Richard C. Shelby (R-Ala.), chairman of the Senate Intelligence Committee, and Rep. Porter J. Goss (R-Fla.) chairman of the House Intelligence Committee and the only acknowledged former CIA clandestine officer in Congress. It was introduced at the behest of CIA director George J. Tenet, who strongly supported it.

The bill would have created criminal penalties for government officials who leak “classified information” to reporters. Violators could be prosecuted and sent to prison for three years, fined $10,000, or both.

To the uninitiated, the language might sound reasonable, since the law would apply only to the release of “properly classified” information. But the measure would have had a chilling effect on the flow of vital information to the public. To gather the news, reporters depend on easy access to government officials; there are dozens of such interviews, backgrounders and press briefings every day in Washington. But officials in the State Department, the CIA, the Pentagon and other agencies would surely hesitate to talk to the news media if a slip of the tongue might mean one to three years at Lompoc, Calif.--if they were lucky--or the maximum-security pen at Marion, Ill.--if they were not.

A secrets law would inevitably lead to search warrants, subpoenas and wiretaps of the press as government gumshoes tried to ferret out the source of news leaks. Officials have been frustrated for years by unauthorized leaks. President Richard M. Nixon resigned in 1974 because the “plumbers” unit he secretly created to plug news leaks broke into Democratic Party headquarters in the Watergate.

The government’s civilian classification system did not exist until Sept. 24, 1951, when President Harry S. Truman issued the first executive order to create it. Subsequent presidents have issued similar executive orders; the current order was promulgated by Clinton in 1995.

The president’s executive order is not a law. It does not apply to anyone other than government employees or contractors. The president can issue an executive order declaring Smokey the Bear the official symbol of the Forest Service, but that does not affect citizens outside government. Ordinary Americans are free to regard Smokey as a fine bear, an important symbol to remind us to put out campfires, or they are free to think that Smokey is a rogue bear who ate a forest ranger to get that funny hat.

The point is, presidents don’t make laws. Stamping a document “secret” or with some other important-sounding designation, which bureaucrats in Washington do, on average, 22,000 times every day, does not make it a law.

According to Steven Garfinkel, the government official who keeps track of such matters as head of the Information Security Oversight Office, there were 8,038,592 secrets classified last year, a 10% increase over the previous year. Almost half the secrets were classified by the CIA.

Imagine a government official having lunch with a reporter and discussing, for example, the delayed decision on whether to build a national missile defense system. The failure of the “kill” vehicle to destroy missiles in previous tests has been widely reported. The official, however, if the secrecy bill should become law, would have no way of knowing whether that fact was one of those 8 million classified secrets. He might prefer to talk about his daughter’s soccer team. As it is, far too many documents are classified by the wielders of secrecy stamps. During World War II, the Army classified the bow and arrow as a “silent flashless weapon.” Some officials know that unless they take a rubber stamp from their desk drawer and mark a piece of paper “secret,” their boss may not bother to look at it.

Even government press briefers were appalled at Congress’ handiwork. Kenneth H. Bacon, assistant defense secretary for public affairs, warned that if the “anti-leak” provision became law, he might have a problem, since he sometimes answers questions with classified information. Bacon’s warning provided ammunition for Clinton, who said in his veto message that the bill would have a chilling effect upon “press briefings or other legitimate . . . activities” by officials who might suddenly find themselves felons.

Under the secrecy bill, whistle-blowers inside the government would be muzzled if they feared that the fraud or waste they wished to expose might be protected by a secrecy stamp. Whistle-blowers should get cash awards and medals, not jail time.

The irony is that government officials, high and low, leak classified information all the time when it suits their policy or political purposes. What the bill was really aimed at was unauthorized leaks: leaks that officials can’t control.

Certainly, the government has a right to try to keep its secrets. But not by criminalizing the flow of information to the press and the American public.

A look back at the not-too-distant past provides interesting examples of why this was an odious bill. Consider the following: Nixon’s plumbers broke into a psychiatrist’s office in Beverly Hills to try to discredit Daniel Ellsberg, the man who leaked the Pentagon Papers. The director of the CIA, Richard M. Helms, asked the head of the FBI to limit the investigation of the Watergate break-in to the burglars already arrested. The CIA tested LSD on Americans without their knowledge; one man died.

Suppose conscience-stricken officials had revealed these events to a reporter. If the information was classified, and it probably was, they could have been prosecuted and imprisoned for a felony.

Laws already on the books make it a crime to reveal information “relating to the national defense.” But Congress has generally avoided linking the often-abused classification system to the law. There are two exceptions: disclosure of classified information that reveals code secrets or the names of intelligence agents.

The secrecy police will be back. Almost certainly, the new Congress, will, with the CIA’s support, try to draft a narrower provision criminalizing the release of some “secrets,” perhaps those bearing a super-duper classification called Sensitive Compartmented Information.

U.S. democracy rests on the consent of the governed, which, in turn, requires an informed public. That is exactly why there is a 1st Amendment. The point was eloquently made by Supreme Court Justice Hugo Black in his opinion in the Pentagon Papers case: “The press was protected so that it could bare the secrets of government and inform the people.” *