Punishing Leaks of Classified Information

The first new legislative initiative to combat leaks of classified information is a bill called the Deterring Public Disclosure of Covert Actions Act of 2012, which was introduced July 10 by Sen. Richard Burr (R-NC).

“This act will ensure that those who disclose or talk about covert actions by the United States will no longer be eligible for Federal Government security clearance. It is novel. It is very simple. If you talk about covert actions you will have your clearance revoked and you will never get another one,” Sen. Burr said.

As justification for the measure, he cited “a series of articles published in the media that have described and in some cases provided extensive details about highly classified unilateral and joint intelligence operations, including covert actions.”

But this assumes certain facts that are not in evidence.  As Walter Pincus wrote in the Washington Post today, there are numerous official and unofficial sources of information about the Stuxnet covert action story, for example, including private sector companies and foreign sources that do not hold security clearances.  From that point of view, the Burr bill does not seem well-suited to achieve its intended purpose.

But the most peculiar thing about the new legislation is that it appears to validate the spurious notion of an “authorized leak.”

Thus, the text of the bill would revoke the security clearance of persons who publicly disclose or discuss classified details of covert actions — unless they have “prior authorization from an original classification authority.”

This seems to mean that classified information about covert actions need not be specifically declassified in order to be publicly released, but only that its disclosure must be “authorized.”

The question of imposing criminal penalties for disclosure of classified information to the press was discussed lately by Morton H. Halperin, who has been involved as a consultant or an expert witness for the defense in many or most of the leak prosecutions from the Ellsberg case in the 1970s to the present.

“Starting from the premise that more information must be made public and that the government has the right to keep some information secret in the name of national security, we need a public and congressional dialogue about what set of measures would be most effective in meeting these two equally important objectives. Reducing government secrecy must be a key component of any such measures,” he wrote in “Leaks and the Public Right to Know,” Huffington Post, July 16.  See also a longer paper by Halperin on “Criminal Penalties for Disclosing Classified Information to the Press in the United States.”