SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2002, Issue No. 3
January 8, 2002

ON CRIMINALIZING "LEAKS"

A congressionally-mandated review of the need to enact new penalties for the unauthorized disclosure of classified information is now underway in the Department of Justice.

The most extensive argument to date in favor of criminalizing such "leaks" was published recently in the National Security Studies Quarterly (NSSQ).

Leaks of classified information can have "broad ramifications, resulting in direct and serious damage to U.S. intelligence effectiveness, national security, and foreign relations," writes Michael Hurt, legislative director for Rep. John Hostettler (R-IN), in the current issue of NSSQ.

Mr. Hurt aims to provide an assessment of the damage caused by leaks that would justify new statutory penalties. He cites patterns of Iraqi denial and deception, setbacks in the pursuit of Osama Bin Ladin, and India's unanticipated nuclear weapons tests, all of which he says were aggravated by unauthorized disclosures of classified information.

He proceeds to endorse the anti-leak legislation sponsored by Senator Richard Shelby (but vetoed in 2000 by President Clinton). He also proposes some innovations of his own, such as amending the Intelligence Identities Protection Act, which makes disclosure of covert intelligence agents a crime, to include technical space collection systems in the definition of "covert agents."

Because Mr. Hurt's paper is the most rigorous public statement available in favor of criminalizing all leaks of classified information, its defects are particularly noteworthy.

In nearly 40 pages of analysis, Mr. Hurt fails to comprehend the essential flaw in the Shelby legislation: It would permit the executive branch both to define the crime (by deciding unilaterally what is "classified") and then to prosecute its violation. This would be an extraordinary concentration of executive branch power and an invitation to abuse.

Mr. Hurt uncritically repeats the false allegation that former Energy Secretary Hazel O'Leary gave a classified diagram of the W-87 nuclear warhead to U.S. News and World Report. This story, propagated by Rep. Curt Weldon, has been thoroughly refuted. (See Secrecy & Government Bulletin, Issue No. 80). It never happened.

Mr. Hurt appears to believe that the deliberative process is essentially ceremonial and that it should not be permitted to interfere with the desired outcome.

Thus, "Once Congress receives the [pending] Ashcroft review [on the need for new anti-leak penalties], Congress ought to reintroduce the anti-leak provision as a separate, stand-alone bill," he writes, as if the outcome of the Ashcroft review were a foregone conclusion. Maybe it is.

Similarly, he says without a hint of irony, open hearings on the matter should be held by all means. "Let all legitimate opposing arguments air, featuring witnesses who may wish to testify in defense of reducing government secrecy, increasing government accountability, protecting reporters' sources or other elements to the opponents' arguments.... Then, Congress should pass a tough anti-leak measure."

"Leaking National Security Secrets" by Michael Hurt appeared in the Autumn 2001 issue of National Security Studies Quarterly, published by Georgetown University. The article may be found here:


PERU DOCUMENTS DECLASSIFIED

On December 27, the State Department released some 38 declassified documents that had been requested by the Congress of Peru concerning U.S. Government relations with disgraced Peruvian intelligence chief Vladimiro Montesinos.

The documents were made publicly available on January 7 here:


GPS VULNERABILITY

A long-delayed Department of Transportation study found that the Global Positioning System satellite network is vulnerable to jamming and other forms of disruption, and should therefore not be used as the sole basis for aircraft navigation.

"Government security concerns delayed publication for many months, but public demand, coupled with secretarial-level interest, finally secured the study's release and gave it high visibility," wrote Charlotte Adams recently in Defense Daily's Avionics Magazine.

The report, entitled "Vulnerability Assessment of the Transportation Infrastructure Relying on the Global Positioning System," was released in September 2001. A copy is available here:


NUCLEAR HISTORY NEWS

The family of physics pioneer Niels Bohr announced last week that it will release all of the documents in its possession concerning the celebrated but mysterious meeting between Bohr and German physicist Werner Heisenberg in September 1941. See the Bohr Archive announcement here:

Historians and others have long debated the meaning of that encounter, Heisenberg's role in the Nazi nuclear weapons program, and Heisenberg's motivation for seeking out Bohr. See "Details of Nazis' A-Bomb Program Surface" by James Glanz in the January 7 New York Times:

In a splendid bit of web magic, the American Institute of Physics has posted a 1948 audio clip featuring the voice of Albert Einstein explaining the equivalence of matter and energy. See:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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