A leaky bureaucracy is good for democracy
Ombudsman
By Paul McMasters
First Amendment Ombudsman
First Amendment Center
11.10.00
It is true that information is power. It is also true that many government officials don't enjoy sharing that power with the people. Thus, the nation's capital is awash in secrets; so many, in fact, that we would have democratic gridlock if the machinery of government weren't lubricated by leaks.
Congress recently threatened to dump a truckload of sand in that machinery when it passed an "official secrets act." Immediately, a chorus of alarm rose along the banks of the Potomac and on editorial pages across the land. The concern came from both Washington insiders and outsiders, from former and current government officials, from press and access organizations, and from members of Congress, as well as ordinary citizens.
In the end, these voices persuaded President Clinton to veto the legislation. It was a remarkable act:
The veto was a rebuke of Clinton's own Central Intelligence Agency, which had pushed the law in Congress, and the Justice Department, which had helped draft it.
It was a politically risky move just before the election, especially since the White House already had assured Congress it had no problem with the law.
And it was a notable departure from the usually deferential treatment accorded the wishes and demands of the intelligence community.
Nevertheless, the president and some of his advisers eventually saw the law for what it represented: a frontal assault on the public's full and informed participation in the democratic process. In his veto message to Congress, President Clinton called the law a "badly flawed provision that would have made a felony of unauthorized disclosures of classified information."
All such attempts to suppress the First Amendment rights of the public and those trying to get information to the public should be regarded as "badly flawed." This one was particularly so.
Under current law, prosecutors already have broad powers to go after anyone who leaks classified material with the intent of harming national security, helping a foreign power or exposing intelligence agents. The new law, however, would have unhinged the current safeguards, allowing prosecutors to proceed without regard to the leakers' intent or whether they knew that information was classified or could have been classified.
In other words, this law would have put in prison anyone who made information available to the public disclosing not just secrets but incompetence, waste, fraud, abuse of power, corruption and other things that stand in the way of good government and democratic principles.
This law would have silenced government employees who blow the whistle on official wrongdoing.
It would have put at risk of prosecution members of Congress and their staffs for communicating with their colleagues, their constituents and the press about controversial or sensitive issues.
It would have muzzled former officials who wish to teach, write or consult on matters about which they are unique resources.
It would have cut off vital sources of information to the legislative and judicial branches about the workings of the executive branch.
It would have greatly complicated the ability of historians and other researchers to accurately document democracy as it unfolds.
And it would have censored the press by sending its sources to prison.
If it had not been for leaks of government secrets, American voters and taxpayers might never have known about the revelations in the Pentagon Papers, about human radiation experiments, about toxic releases into the environment, about human rights abuses in Guatemala, about the My Lai massacre, or about lax security measures at defense and energy facilities – to name just a few examples.
Despite its infirmities, this law was still approved by Congress. It was passed in large part not because of its merits, but because of secrecy and legislative legerdemain. There was a smattering of news stories when it first became known that such a law was proposed, but then it went underground. Hearings were held in secret. No public comment was sought. And a voice vote on the law left no record of who supported and who opposed it.
Why did the CIA and the heads of congressional intelligence committees want this law?
No doubt they were motivated by reasonable concerns about the release of information that could truly harm our national interests. But there is some reason to believe they also wanted to shut off the source or sources of leaks to Bill Gertz, a Washington Times reporter who has regularly published articles involving secrets that some in government would rather we not know. Indeed, this law either would have shut down such sources or made them easier to target by mowing down the high grass around them.
Nevertheless, after Congress embedded this law in the Intelligence Authorization Act, a small coalition of press, access, civil liberties, whistleblower and other groups banded together to get stories, editorials and op-ed pieces written. In addition, they worked the telephones, e-mails and halls of power, contacting those in the White House and Congress who could be reached with reason.
Soon, a critical mass of key officials had seen that this law indeed was "badly flawed."
Not the least of the flaws was the presumption that all government secrets are sacrosanct. What is not a secret in Washington is the fact that this "open society" warehouses literally billions of documents that should never have been classified in the first place or which no longer need to be classified.
Even former defenders of this secrecy have had second thoughts upon reflection. Several years after he served as lead attorney for the government in the Pentagon Papers case, Erwin Griswold wrote that despite the government's aggressive efforts to keep the story from the American people, he saw no real threat to national security.
"It quickly becomes apparent to any person who has considerable experience with classified material," Griswold said, "that there is a massive over-classification, and that the principal concern of the classifiers is not with national security but rather with governmental embarrassment of one sort or another."
This law would have disrupted the delicate dance by which the power of information is shared in our political process. That shift of power, in effect, would have allowed those with crucial information to say to the rest of us: "We do not make mistakes, we do not cover things up, and even if we do it is none of your business."
Proponents of stronger anti-leak laws will be back next session with more such proposals. It is no surprise that they are committed to the idea. As long as public officials meet behind closed doors without the public properly represented, their deliberations will be missing a crucial perspective. As long as they focus solely on a narrow concept of threats to national security, they will never recognize the threat to democracy itself of too much secrecy.
When they return with such proposals, those inside and outside government must remind them in no uncertain terms that we already have laws on the books to punish those who set out to harm national security. We don't need laws that punish those who set out to help good government. That would result in a "badly flawed" democracy.
Paul McMasters can be contacted at pmcmasters@freedomforum.org.