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October 28, 2005

Protecting Sources
Posted by Morton H. Halperin

The indictment of Scooter Libby puts into jeopardy the system by which the public learns most of what it knows about what the government is doing.  Officials say things to reporters "on background" confident that their names will not be released.  Sometimes they release information to support a government position and sometimes to expand the fight against a policy they oppose.  Sometimes the official providing the information thinks or knows that his boss (and even the President) has approved or would approve of his providing the information.  Sometimes he knows for sure they would not.

This was an extraordinary case in which the Justice Department was forced to go forward with an investigation of a leak that the administration clearly desired.  However, in most cases such investigations will occur when there is a leak that the administration of the day does not like.  Any official who believes that the public needs to know the information he is considering making public, but which he knows the President wants secret, will need to think twice.  He will know that once an investigation begins, officials will be asked to sign a waiver so that their sources are able to testify before a grand jury.   

Reporters, now that they know the facts of this case, need to consider whether they should state in advance that a source cannot in retrospect waive the confidentiality of a conversation.

One final comment:  no one who watched the press conference of Patrick Fitzgerald, as I just did, could come away with anything but extraordinary admiration. If only our Attorneys General and other US Attorneys followed his practice of not going beyond the facts of the indictment.  If  only they reminded the press of the presumption of innocence as he continually did.  If only they shared his view of the importance of freedom of the press as well as the protection of national security.  If only they avoided leaks as he did.  No one who watched who has any judgment will think they can get away with suggesting that he is partisan or that he has based the charges on technicalities.   


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This was an extraordinary case in which the Justice Department was forced to go forward with an investigation of a leak that the administration clearly desired.

You seem to be jumping the gun a a bit here Morton. Are you saying that the leak was authorized by the President? Surely we are a long way from establishing that fact. Or are you saying that the ultimate source of the leak had the authority to declassify the information that was leaked, perhaps by the very act of leaking it? Otherwise I don't see the relevance. Is there some sense in which the entire administration itself might amorphously "desire" to leak certain classified information? If so, does that have any relevance?

Any official who believes that the public needs to know the information he is considering making public, but which he knows the President wants secret, will need to think twice.

Not at all. Not everything the President might want to keep secret is legally protected classified information. If the President admits to advisors during an oval office meeting that he will sign a certain bill if it comes to him, but that he is going to threaten a veto publicly until that time, in order to dissuade the Congress from passing it, that is surely information that he would like to keep secrtet. But surely that sort of information is not entitled to the same level of protection as classified information on the identity of CIA agents.

You seem unwilling to observe clear distinctions between leaks of classified information that are illegal, and those that just involve information some people might want to be secret.

Are you saying that the leak was authorized by the President? Surely we are a long way from establishing that fact.

At least 3 high level people were involved in leaking this. The indictment claims that Cheney discovered Plame's name from the CIA, and then gave her name to Libby. I think it's safe to say that this was an official leak, even if we can't prove in a court of law that the president approved of it beforehand.

Morton, I've heard this complaint before, and I sympathize with it, but why were so few people concerned when Ashcroft prosecuted that Dea employee a few years ago? The Bush administration has been trying to create an "unofficial secrets act" for some time, and I don't see many prominent Dems speaking up about it.

Why should government employees think they can say whatever they want to the press with no consequences?

The legal consequences ought to depend on circumstance. Tell the truth. If the prosecutor thinks you did the right thing he should have the chance to not prosecute. If the grand jury thinks you did the right thing they should have the chance to drop it. If the jury thinks you did the right thing they should let you go unpunished.

If you do stuff your boss disapproves of and he finds out, you should expect to be fired at a minimum. That's how it works with jobs.

It's absurd that government employees should expect that they can tell the press classified defense secrets whose exposure hurts national security, and not be tried by the legal system. What's the alternative? Lock them up or kill them without trial? If they were revealing the secrets to foreign spies there would be no question they deserve trial and punishment. When the spies can read the secrets in the newspaper how is that better?

The only possible reason to object to this is partisan politics. (Unless there's some other reason I've missed, some hidden reason.) Mr. Halperin, why do you continue with this line of illogic? Is it to further a partisan political stand or do you have some secret reason?

J Thomas:

It scares me a bit, but I agree with you.

John Penta, no need to be scared.

We might have very different ideas about how to solve some problems. But it could still be easy for both of us to reject obviously-flawed ideas.

For how to get public accountability etc, I would prefer to arrange to minimise the volume of classified data. The more of it there is, the easier it is for stuff that shouldn't be classified in the first place to slip in. Kind of like software bloat, once the project is bloated it's a lot harder to figure out what you can get rid of than it is to keep it small in the first place. The less classified stuff we have, the better. Tactical military stuff should have a short half-life. If the enemy can look at operational details from last year and find patterns that helps him now -- that means we're making patterns that shouldn't be there. Intelligence stuff is more complicated.

So I'd expect you to disagree with this general approach. But you can disagree completely about what we ought to do snf still agree that Halperin's suggestion won't work well.

You almost have it, JT (to save my fingers, I abbreviate). But not quite.

When it comes to how much is classified: I agree. In general.

The problem is, of course, the details; Plus the fact that, frankly, there is every incentive to classify, and zero to declassify. Declassify the wrong thing, and you lose your job at best, and people die at worst. Classify the wrong thing, and nobody notices.

And there are always perfectly justified arguments for classifying just about everything that is classified; It's not like much fails the "reasonable person" test, individually. It's just the sheer volume.

If I had a blog (I would, but nobody'd read it, so why bother?), I'd elaborate, but I probably shouldn't in a comment.

There are two very separate issues at hand here. First, there is the concept of leaking classified information. There are very good reasons for people to leak classified information sometimes. As one of Mr. Halperin's books will show you, the CIA, FBI and others have done great damage to the cause of freedom by acting against US citizens in secret. These citizens had committed no crimes. Nixon's resignation had very little to do with a specific break-in and much more to do with systemic violations of secrecy.

The second issue is of a narrowly written law to protect our own intelligence operatives and their connections. The Bush Administration (or a powerful part of it) has violated this second law but they wish to confuse us by treating both cases as interchangeable.

Perhaps, Bush wants us to confuse his cronies with the relative heroes of Watergate. Like Nixon in Watergate, Bush is trying to cloud the larger issue. Wilson went on a mission at the request of his government to investigate whether or not Iraq had bought uranium from Niger. When he came back with the wrong answer, he was ignored. In an attempt to prevent a needless war, Wilson went public in an editorial.

Bush's cronies wanted to discredit him for their own crass political gain. Therefore, they revealed the identity of an undercover CIA agent as revenge. The lives they endangered were unimportant. Since they wanted a war, they needed to discredit those who opposed it.

In my opinion, Mr. Halperin should remember that Wilson was the man who operated in the open and signed his name. Those who were willing to put lives in danger were the ones who wished to stop the free exchange of ideas.

Writers on "The West Wing" are the ones who are most confused. The leak in their plot line involved a technology needed to save lives at the cost of some military advantage. Bush's cronies are willing to accept the cost of lives for mere political advantage.

To correct my previous post, I must note that Libby was indicted for perjury, obstruction of justice and making false statements. None of these charges seem to rest upon the Espionage Act or the law my previous post mentions.

In my defense, I have been out of town and on a beach ignoring all news for a week.

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