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October 21, 2005

Publishing Classified Information
Posted by Morton H. Halperin

As Washington braces for the expected indictment next week of one or more government officials in the Valerie Plame case, attention is understandably focused on its impact on the functioning of the White House and its likely impact on the future of the Bush Administration.  But along with the on-going AIPAC leak investigation, which I plan to discuss in another post, the Plame case will have far greater repercussions:  These cases could seriously impede the public's right to know what its government is doing.

This is because both investigations are proceeding on the misguided assumption that the World War I era "espionage" laws criminalize not just transfers of information relating to the national defense, foreign powers and their agents, but also leaks to the press.  If this were true, the United States would have an official secrets act -- one that is broken hundreds of times every day.  If enforced, such a law would deprive the public of information that is crucial to meaningful self-government.  This interpretation of the espionage laws would  render completely superfluous such acts as the Intelligence Identities Protection Act, which are narrowly drawn to protect a specific category of information from disclosure in specific situations.   

Indeed, it is no small irony that the criminal statute which triggered the Plame investigation, the Intelligence Identities Protection Act,  was drafted with extraordinary attention to balancing the need to protect true government secrets with the critical role that a free press plays in our society.

Over several years the Congress enacted the Intelligence Identities Protection Act precisely because it recognized that the general espionage statutes were not intended to be used to cover disclosures to the press and, if they were, this would do great harm.   Congress recognized that there was massive over-classification of national defense information and that a statute that classified all such information would prevent the Congress and the public from gaining the information it needed to challenge government policies.

Indeed, enactment of the Intelligence Identities Protection Act, with its myriad of safeguards, would make no sense if the espionage law, which makes it a crime for anyone to give national defense information to a person not entitled to receive it, applied to transfers of information to the press or from one reporter to another.  The definitive review of these statutes confirms that Congress had no such intention and that the Congress that drafted the Intelligence Identities Protection Act clearly agreed or it would not have gone to the trouble of carefully drafting that law.

In crafting this act, Congress recognized that even the disclosures of the identities of covert agents might be in the public interest and should not be criminalized except in specific situations.   The contrasts with the general Espionage Act are substantial and critical to understanding how the exchange of information between the Executive and the press now functions and how it must continue to function until we find a way to classify far less information.

The Espionage Act makes no distinction between government officials with authorized access to classified information and private citizens, including reporters who may acquire, or seek to acquire, such information.  All can be guilty of unauthorized possession, receipt, or transfer of such information.  By contrast, the Intelligence Identities Protection Act creates separate crimes for these two categories.  Those without authorized access, such as journalists,  are guilty of a crime only if they are engaged in a pattern of disclosures which harm the national interests.  Congress wanted to crack down on a small group who were regularly publishing lists of names of covert agents for the purpose of putting them out of business.  While successfully shutting down this effort, Congress took great care to insure that the reach of the crime would not extend to reporters who revealed the names of agents in the course of a legitimate news story.  It did not consider such actions to be crimes, but rather essential to public debate.  To underscore its concern that the actions of reporters not be chilled, Congress went the extra and unprecedented step of barring the use of the conspiracy laws to link a reporter to an unauthorized disclosure.   The history of this debate, in which I was deeply involved on behalf of the ACLU, suggests that Congress might well have barred Grand Jury subpoenas to reporters if it had considered the question.

Even in dealing with government officials the Congress legislated narrowly, covering only a very small category of information, the disclosure of which would clearly cause harm.  Congress also added a series of specific requirements, including the requirement that the official had knowledge that he or she was disclosing the identify of a covert agent whose  identity the government was trying to keep secret.

The Fitzgerald investigation has already done great harm by further undercutting the notion that reporters have a right to protect their sources without fearing jail time and that officials can speak to the press on background without fearing that they would be required to offer a blanket waiver of confidentiality to all of those to whom they speak on background. 

I was in the Defense Department in the 1960s when the public relied almost entirely on "unauthorized" leaks to learn about our Vietnam policy.  The notorious leak of the fact that the commander in Vietnam, General Westmoreland, had asked for 200,000  more troops triggered a debate which forced President Johnson to deny the request and announce that he was not running for re-election.   If all of us in the Pentagon and elsewhere who opposed the war could have been asked to relieve all reporters of their confidentiality agreements or be fired, there would have be no such leak or there would have been a large purge including most, if not all, of the skeptics of the war.

Those who take satisfaction from the fact that, in this case, those asked to sign the waivers were supporters of the war should understand that this demand will most often be made when there are leaks against administration policy.  Whistle blowers will think twice before talking to the press and will fear a demand that they release their sources from confidentiality.

The situation will be much worse if Fitzgerald indicts officials for violations of the Espionage Act or even conspiracy to violate the act with reporters.  Unauthorized releases of classified information occur daily and are the main way we learn what the government is doing or plans to do.  We learn about abuses of various kinds from such disclosures.  Indictments of senior government officials who may have leaked information to discredit a critic, no matter how reprehensible, would be a very small compensation for the vast chilling effect of such an indictment (or the successful pressing of a similar indictment in the AIPAC case).

For now, those who care about a free press and a robust debate about the government's national security policy can only hope that there will be no indictment or one which deals with a cover up and does not rest on an underlying premise that revealing classified information to the press is a crime. It is not and should not be.  For if it is, we will all pay a very heavy price. 

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Comments

The biggest problem with your post is that it supports protecting the deliberate giving of false information to the press to discredit an honest whistleblower. This is wrong, whether it is covered by law or not.

Mort,

First, let me extend a warm welcome to the blogosphere. I always figured you'd end up blogging eventually... I haven't been around D.A. much over the last month, since I've been unusually busy at the office, so this is the first time I've seen you posting. Often, I've been a somewhat critical voice here, as my own policy views have drifted in a somewhat 'realist' direction over the last few years (think Steve Clemons, not Prince Metternich...), but I also think D.A. is one of the best foreign policy blogs around in terms of the quality of discussion (possibly due to its limited readership).

You raised a very important point here -- and one which 99.8% of the commentary on the Plame and Franklin/AIPAC investigations -- on the Internet and elsewhere -- is currently ignoring. It hasn't really occurred to most people how broad-ranging the "chilling effect" could be -- that the same legal basis used to go after Scooter Libby in this case could just as easily be used against a career civil servant, diplomat, or military officer who spoke to a reporter in defiance of Bush administration policy -- i.e. Joe GS-15 from the Pentagon griping to a reporter about the crazy things his neoconservative political bosses want to do.

Having said that, though, I'm really of two minds on my reaction to the Fitzgerald investigation. While I think your legal point is valid, ironically, the Fitzgerald investigation is likely to contribute a great deal to the American public's understanding of how the Bush administration got us involved in Iraq. It's not so much the story of who leaked Valerie Plame's name, but the earlier issue of the phony Niger documents themselves, which is important. Clearly, someone was out to deceive the U.S. government by putting those documents into Western intelligence channels, and there hasn't really been an adequate investigation heretofore into who did that. It's also exceedingly suspicious that much of the top tier of the White House went to battlestations over Joe Wilson's Op-Ed in the New York Times, when they hadn't paid such intense attention to the many other pundits who were criticizing them over the lack of WMD discoveries in Iraq during the summer of 2003. Why did Wilson and the Niger uranium issue cut so close to the bone for them? And what exactly was Michael Ledeen up to when he visited Rome in December 2001 as a DoD consultant (with two DoD officials, Larry Franklin and Harold Rhode)? I don't know, but I tend to share the suspicions voiced by Steve Clemons and many others. The question, of course, is to what degree the stated WMD rationale for the invasion of Iraq was an "honest mistake," or did it involve at least some degree of deliberate deception, possibly with the complicity of Bush administration officials at the highest levels?

These questions should have been addressed by the second phase of the investigation by the Senate Select Committee on Intelligence (SSCI) after the 2004 election, but a combination of partisan foot-dragging by Sen. Pat Roberts and stonewalling from the Office of the Undersecretary of Defense for Policy has successfully staved this off, at least for now.

And this is why I have mixed feelings about the Fitzgerald/Plame and McNulty/Franklin/AIPAC investigations... because while I agree with you that they set a dangerous precedent, this is something where the public needs to know what happened -- urgently -- before decisions are made on issues with Iran and Syria which could potentially widen the conflict we face in Iraq.

I trust that Scooter Libby, Karl Rove, Steve Rosen, etc will have highly competent legal counsel -- and if the Espionage Act of 1917 is being misapplied, as I think it probably is, then they may have a basis to have some of the charges against them dropped. But for now, in the next couple of weeks and months, the main thing I'd like to see is to have the story come out -- so that the American public knows the truth (maybe a pretty awful truth) about how we got into Iraq, and the efforts by the same group of people to get us involved militarily in Iran.

But that is a rather unprincipled stand, as I'd freely admit...

Morton Halperin wrote:

Even in dealing with government officials the Congress legislated narrowly, covering only a very small category of information, the disclosure of which would clearly cause harm.

This is the second time this week I have read a misrepresentation of the Intelligence Identities Protection Act. Section 421a of the act says:

Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the
United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18, United States Code, or imprisoned not more than ten years, or both.

There is no reference section 421a whatsoever to either the causing of actual harm, or the attempt to cause harm. There is no reference whatsoever to the motivations of the leaker. So whether or not Rove or Libby caused harm, intended to cause harm, or knowingly caused harm, is irrelevant. Nor is it relevant whether the disclosure would "clearly" cause harm.

Much more important to the defense of Rove, to take one of the individuals in question, are these questions: (i) Did Rove himself have authorized access to classified information identifying Plame? (ii) Was Plame covert? (iii) Did Rove know that Plame was covert? (iv) Was the US government taking affirmative measures to conceal Plame's relationship to the United States? and (v) Did Rove know the US government wastaking affirmative measures to conceal Plame's relationship to the United States?

Considering also sections 421b and 421c, the plain reading of the law is that there is a sharp distinction drawn by the drafters between those who have authorized access to certain classified information about the identities of intelligence agents, and those who do not have authorized access to that information. If you do not have authorized access to the information to begin with, then it is not a crime to pass it on - unless your disclosure takes place "in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States." If Rove, for example, did not have authorized access to the classified information identifying Plame as a covert agent, then his passing on the the information, however he obtained it, is not a violation of the law. Similalry, if someone with authorized access passed the information on to a reporter, it is not illegal for the reporter to pass it on to others, including readers of the reporter's newspaper.

But the key to Fitzgerald's investigation is going to be to find the ultimate source of the information. If we assume Plame actually was covert, and the US government was affirmatively protecting her covert status, then the ultimate source of information about these fact would have been classified. At some point, someone who had authorized access to the information must have revealed it to someone who did not have authorized access to it. From that point on, the unauthorized recipients are likely in the clear legally. But a law was probably broken somewhere, by someone.

There's a world of difference between blowing the whistle on the bad or criminal acts of an official or agency and blowing the cover of an undercover intelligence officer. I don't consider the person who ultimately revealed Valerie Plames' covert status a "whistleblower", and doing so only serves to confuse the issue. The leaker isn't deserving of any sort of whistleblower status or protection, either in the courtroom or the court of public opinion. There was nothing noble about the Plame outing. We're not talking about a former EPA official talking on-camera about being fired so a coal mining lobbyist could be appointed to his position. We're talking about revealing the identity of a deep-cover intelligence asset in a part of the world where we just happen to have our war on. To equate these two distinctly different acts muddies the issue considerably.

There is a question of intent on the part of the leaker/s. How does outing an NOC intelligence asset in a time of war promote the concept of an well-informed public? How does revealing the fact that a former coal mining lobbyist is in charge of inspecting the downstream effects from coal mining operations for the EPA serve the public good? What is the intent of the leaker in either case? I think a conscientious prosecutor would be able to discern the difference between the two and exercise his prosecutorial discretion. I don't think all leakers of classified information are as rigidly categorizable as lawbreakers as you infer. Again, intent and discretion.

I think the term, "leak" may not apply here. It would seem the administration wanted to get this informqation out, so perhaps, "planted" is closer to the truth.

"...and does not rest on an underlying premise that revealing classified information to the press is a crime. It is not and should not be."

If it isn't a crime to reveal classified information to the press, then what does it mean to classify information?

Of course it is and should be a crime to reveal classified information. Here's the best homology I see:

It should be a crime for US citizens to torture anybody under any circumstances. If you, as a US official or for that matter as a US private citizen find yourself in what you think is a "ticking bomb" situation where you believe you must torture somebody to prevent a catastrophe, you should do it and take responsibility for it. After the event you should turn yourself in and accept whatever result due process gives you.

Similarly, if you feel the nation needs you to leak classified information, you should do it and accept that you might get extreme punishment for it. If you're right, and if they don't catch you in time, the new government won't prosecute. If you're wrong then you can expect problems regardless. You're the one on the spot who has to choose. If you're sure, it's your patriotic duty to risk yourself for the nation.

It makes no sense whatsoever to decide that leaking classified information is not a crime. And it is counterproductive to decide that *now*, unless you are a total partisan for the Bush administration.

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