Whistle-Blower Silencer

The Senate will soon consider a bill that makes it a felony to leak any national security-related information that carries a classified label, however innocuous it may be or however much its release is in the public interest. The government notoriously overclassifies virtually everything to do with military and intelligence matters. It does so to protect legitimate secrets, but the process can also be used to shield mistakes, incompetence, political embarrassments and, in some cases, even criminal behavior. Exposing official gaffes and costly bumbling should not invite fines and imprisonment.

Leaking information is a Washington institution. Sometimes it’s done to try to discredit a policy, program or official. Sometimes the reason is more selfless, to open up to public scrutiny and debate matters that officials or bureaucrats would rather keep hidden.

John L. Martin, who prosecuted 76 accused spies during his 26 years in the Justice Department, says the anti-leaking bill is probably unconstitutional and, in any case, the wrong way to deal with the problem. The right way is to enforce the legal and administrative sanctions the law already provides, something the CIA, Pentagon and State Department often seem disinclined to do. Martin identifies the biggest leakers as “White House aides, Cabinet secretaries, generals and admirals and members of Congress.”

Members of Congress? Yes, indeed. But the bill the Intelligence Committee sent to the Senate floor specifically exempts Congress, its members and its committees from criminal liability for disclosing classified information.

It has long been a crime to reveal defense information with the aim of aiding a foreign power or harming the United States. Other statutes cover the unauthorized release of specifically defined sensitive information. Does the law need tightening? Atty. Gen. Janet Reno supports applying criminal penalties to intentional leaks of information that reveal intelligence sources or jeopardize lives. But that sensible approach has been rejected by Intelligence Committee Chairman Richard C. Shelby (R-Ala.). He prefers not to differentiate between information that is frivolously classified and material that clearly affects national security. Sen. Shelby’s approach is a guaranteed prescription for silencing whistle blowers and keeping official wrongdoing safely buried.