|PLUGGING MEDIA LEAKS|
June 29, 2000
A bill from the Senate select committee on intelligence could make leaking sensitive government information a crime. Two experts weigh in on the issue.
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TERENCE SMITH: CIA Director George Tenet once complained that the executive branch, in his words, "leaks like a sieve." Now some in the Senate are trying to do something about the leaking of classified information to those not authorized to receive it. Legislation discussed in a closed Intelligence Committee session this month and due for Senate debate would make government bureaucrats who intentionally leak classified information liable to up to three years in jail and a fine of $10,000. Clinton administration officials say they do not need this new authority, since leaking, while rarely prosecuted, is already against the law. Critics of the bill contend that it could entangle journalists in legal battles and restrict the flow of important information to the American public. So will the new bill protect the nation's secrets or merely politicians trying to avoid embarrassment?
Here to weigh in on that issue are the sponsor of the
legislation, Republican Richard Shelby of Alabama, chairman of the Senate
Select Committee on Intelligence; and Scott Armstrong, investigative
journalist and author and founder of the National Security Archive,
a repository of declassified information. Gentlemen, welcome to you
|Are leaks a growing problem?|
SEN. RICHARD SHELBY: Leaks, I believe, basically we've found out come from the executive branch-- about 80%. I think they undermine national security. I think they do damage to this country. I certainly do not ever want classified... something to be classified to protect the wrongdoings of politicians. I think that would be wrong. But I do want to do everything I can to protect the integrity of the nation and the security of the nation.
TERENCE SMITH: And so who is this legislation aimed at?
SEN. RICHARD SHELBY: It's aimed basically at people who have knowledge and have access to classified information that would willfully and knowingly leak this information. They would be the culprits under the law. We believe it would fill a gap under the present law. And I've talked to Attorney General Reno about this. She testified before the closed session of the committee. She called me last Friday about this. We're trying to work this out between the administration and the Congress, but I believe there's a need for it. I know other people see not a need for classified information, period. But I know, from our perspective, there is a need.
TERENCE SMITH: And you think there's some prospect that you'll work out language that would be acceptable to the administration so that they would endorse it?
SEN. RICHARD SHELBY: Well, I hope so. You know, when you speak of the administration, I can tell you there are a lot of people in the Justice Department, there are a lot of people at are in the CIA and a lot of people in the FBI and other departments, national security agencies, that know how important classified information is to national security. I think you mentioned earlier that some people maybe hide behind classified information for wrongdoing purposes. That's wrong. We should ferret that out. And there is a process to get rid of it.
TERENCE SMITH: Scott Armstrong, what would be the effect of this legislation, if it's enacted, on the public flow of information and on journalism?
SCOTT ARMSTRONG: Well, we have to remember the public flow of information does depend upon leaks, that...
TERENCE SMITH: Should it?
SCOTT ARMSTRONG: Well, it has to to some degree. The ship of state leaks from the top primarily because there are different points of view, there are items that need discussion. And what we are calling classified information here is not a small box of carefully protected family jewels. These are things that are the elements of policy debate. They're the things that... about which government exists. And so you have people at the top who are going to continue to leak. This will not be effective against them. And then you have the people that will really... might be effected, and this could be very serious for journalism. And those are the whistleblowers, those are the smaller sources, the career bureaucrats, the people who correct things, who get outraged, who say, "I can't live with this anymore. The inspector general won't do anything. Congress isn't going to do anything, so I'm going to have to tell the "New York Times," the "Washington Post," their local paper or perhaps even a television network.
|Do leaks play a role in the policy debate?|
TERENCE SMITH: Senator Shelby, what about that-- as the notion that leaks play a role in the policy debate?
SEN. RICHARD SHELBY: Well, if I were a writer for the "New York Times" or a writer writing books-- and I have a lot of friends in this, and they're doing a lot of good things by writing various articles on national security-- I would want all the information I could get in probably any way I could get it, you know, short of going to jail. But I do not believe that the information, where it's classified, should be willfully and intentionally leaked. Scott is right. It has been done, and it has been done through Republican and Democratic administrations. But I think we can do better. There's a process to deal with this. What we're trying to do legislatively is to fill a gap. But one thing we're not doing here, and this has been said, not on this program, not yet anyway, but it's been said in print that this would impinge on the First Amendment rights of journalists. Well, it's not going to do this because there's nothing in this proposed legislation to prosecute a receiver of the information, like a journalist, but to prosecute the culprit, the leaker of the information -- two different things.
TERENCE SMITH: Right. Scott, is that sufficient protection?
SCOTT ARMSTRONG: No. It's going to have an impact on... Particularly on the source that's most valuable to us, which is the person that's down on the front line, the person that does not have a basic... a huge policy interest, but the person who can speak directly to it. It makes them intimidated. That's the only person that it will get to. Secondly, once you get into... once you start going after our sources, even though you're not going after them through us, inevitably, it becomes a contest to see who can figure out who's talking to whom. And phone records, other records, contacts, everything becomes... comes into the public domain. It becomes very, very difficult for us to do our business.
TERENCE SMITH: Senator?
SEN. RICHARD SHELBY: It might be difficult for a lot of us to do business, but we have laws, and the laws ought to be obeyed in the spirit, as well as literally at times. And this would fill a gap that we believe is long overdue. And I hope that we're going to be able to work this legislation through the Congress. This legislation was part of our authorization bill, but it came out and we discussed it in the committee-- Democrats and Republicans-- and we discussed the merits of it. And it came out unanimously. I believe we've got a good chance this year to pass a meaningful piece of legislation dealing with leaks.
TERENCE SMITH: Senator, can you give examples of leaks that have been harmful-- since they're not public if they've been leaked-- to the national security?
SEN. RICHARD SHELBY: Well, I'm not going to go into specifics, because a lot of those things... you know, maybe there has been a lot of damage. But I can tell you where there have been leaks, and there have been at times-- and I can over privately some of that with you- - but I can tell you that when sources and methods...
SCOTT ARMSTRONG: Wouldn't that be leaking?
SEN. RICHARD SHELBY: ...Sources and methods are leaked, and you could possibly put... Or probably put some of our agents' lives in danger, it's time to stop that.
|The need for secrecy vs. the need to know|
TERENCE SMITH: All right. Scott Armstrong, how do you fairly balance the legitimate need of the government to protect genuine secrets and the legitimate need of the public to know what its government's up to?
SCOTT ARMSTRONG: The problem is a balancing that is clearly now skewed in the wrong direction. There's over classification. Things that have no business being classified are classified. This bill makes no differentiation in that regard. Things that are inconvenient, embarrassing to the administration become classified. The balance that we presently have... General Stillwell, in 1985, in an environment that had less classification than today, but who was the czar of classification, said that 80% of what he had could be declassified the next day. He made the same point that Potter Stewart made in the Pentagon Papers case. When everything is secret, nothing is secret. No one knows what to protect. If you want to protect things, you get everything else out of the system, you protect the little jewels that are there. The second thing is: Who controls this information? And the system we have now, I've gotten leaks from the national security advisor, I've gotten leaks from the Secretary of state, from the secretary of defense, the head of the CIA I don't see the committee prosecuting those people. I mean, it just isn't likely to happen. And so what you have is a debate where the administration gets to rule the roost, put their information out, and the classification system's used to keep everything else out of the way.
TERENCE SMITH: Senator?
SEN. RICHARD SHELBY: Scott, you make a good point. The point one being that there's too much classified information, and a lot of it is classified for the wrong reasons, to probably withhold things from the public that should never have been withheld. Now, how do we work through that process? This legislation doesn't attempt to do this, but it needs to be done. And the public does have a right to know a lot of stuff, especially wrongdoing and things like that, and the bad policy. But where it goes to the integrity of our national defense and security of the nation, I think that's a different game.
TERENCE SMITH: Senator, respond to Scott Armstrong's earlier point, which is that inevitably this would lead to subpoenas and perhaps even wiretaps of reporters and journalists. There it would become a First Amendment issue.
SEN. RICHARD SHELBY: Well, I don't believe that would ever happen. For the past 20 years, under Democrat and Republican administrations, they've basically got a policy of leaving the journalists alone. And I think this would happen. But if we could stop people from really leaking-- and it is the administration, it is the executive branch for the most part-- I think we'd be better off.
TERENCE SMITH: Scott, final word?
SCOTT ARMSTRONG: Well, I think it's clear that there will have to be some intrusion into the journalists' daily operations. I know back in the Reagan administration, I was picked up on a wiretap of a government official who they were trying to find out if he was leaking. They subsequently gave up on trying to find out who was doing the leaking, but in the meantime, they listened in to the conversations he was having with several journalists, information that I would argue was not in fact classified. The real question is: Who gets to decide what the public gets to know? And presently there's a balance. And when it gets too tight at the top, when there's too much control of information, when the President and a few people are the only ones that can determine what goes out, then people from the bottom begin to leak things out, things get corrected. That's going to change, and we're going to have less information, and we're going to be less able to understand what's going on in our public domain.
TERENCE SMITH: Perhaps a very last word from you, Senator?
SEN. RICHARD SHELBY: Well, I think we all like information, and we need information, you know, as a free nation, free people. But I think we still need to have a balance to protect the vital security of this nation.
TERENCE SMITH: Okay, gentlemen. Thank you both.
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