Over the weekend, Attorney General Alberto Gonzales made a draconian threat to prosecute journalists for writing about the National Security Agencys (NSAs) clandestine and illegal monitoring of U.S.-overseas telephone calls. That threat shows what an Orwellian farce the governments classified information system has become.
Gonzales is threatening to prosecute reporters under the 1917 Espionage Act. This anachronistic act was passed during World War I to make it illegal for unauthorized personnel to receive and transmit national defense information. The law is also currently being used to prosecute two lobbyists from the American Israel Public Affairs Committee (AIPAC) for obtaining and transmitting classified information they received from a U.S. Defense Department employee. The lobbyists lawyers have filed a motion in court arguing that the law is an unconstitutional breach of the First Amendment right to free speech.
A successful prosecution in the AIPAC case could open the floodgates to indict journalists for publishing classified information leaked to them by government officials. The government would have an easier time prosecuting reporters than it does uncovering and indicting often-anonymous leakers. In fact, the threat of being prosecuted might make reporters less inclined to protect sources, thereby flushing out the leakers, or making officials more reluctant to leak in the first place.
The casual observer might conclude that reducing the amount of classified information in the media might be a good idea. But the revelation of the unconstitutional NSA domestic spying program shows that leaks by conscientious officials can, at times, have positive effects. And the public shouldnt assume that all, or even most, of the information the government shields from public view needs to be secret.
Classification can hide facts embarrassing to the U.S. government or keep information from the American public that is common knowledge among foreign governments. An example of the latter was President Jimmy Carters revelation on television that the United States had spy satellites, which the nations of the world had long known.
Officials working for both Democratic and Republican administrations have routinely and predictably exhibited contradictory behavior toward classified informationon the one hand, regularly leaking highly classified information for political or policy gain and, on the other hand, attempting to stifle leaks of embarrassing information. The most famous case of the latter was President Nixons team of Watergate plumbers, which was originally set up to plug leaks.
Such schizophrenic behavior was recently on display at the confirmation hearing of General Michael Hayden, nominated for director of the CIA. General Hayden said that he would only respond to Senator Dianne Feinsteins pointed questions about embarrassing government spying activities and prisoner interrogation methods in a committee session closed to the media and public. But in response to one of Senator Feinsteins questions, General Hayden eagerly took the opportunity to talk about the Iranian threat in open session. Similarly, government officials keep the cost of the overall U.S. intelligence budget classified, even though it is widely known to be about $44 billion. Yet they have no problem leaking to the media to brag about the tripling of clandestine intelligence officers in the field or the opening of 20 percent more secret CIA stations around the worldinformation that actually might be of some use to terrorists and foreign intelligence agencies.
Yes, there is some information that should be classifiedfor example, intelligence officers in the field (or their foreign sources and contacts) could be killed if their identities were revealed. Yet the same Bush administration that may well prosecute reporters for writing about its illegal warrantless spying program conspired at the highest levels to expose the identity of a CIA field officer for political gain. The evidence seems to indicate that Vice President Dick Cheney was interested in CIA officer Valerie Plames occupation.
But the over-classification of much government information makes officials cynical about keeping much smaller amounts of legitimately sensitive data under wraps. Thus, a massive declassification of government information would make the remaining secrets more secure and less open to political manipulation. Unfortunately, the Bush administration is classifying ever more information.
More important, in a democracy, where the supposed rulersthe peopleneed the maximum information possible to make good decisions, the amount of information that is withheld from the public should be minimal. And if the government cannot keep its data secret, government officials, not journalists, should be the ones who are prosecuted.
Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He is author of the books Partitioning for Peace: An Exit Strategy for Iraq, and Recarving Rushmore.
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