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The Washington Post
August 24, 2001

No More Secrecy Bills

LAST YEAR President Clinton properly vetoed an intelligence authorization bill that would have criminalized virtually all leaks of classified information. Unfortunately, this year the idea has resurfaced and is due to be considered by the Senate intelligence committee in September. The leaks bill is still a bad idea and should again be rejected.

We don't pretend to be neutral on this subject. Newspapers publish leaked material; our reporters solicit leaks. And some of the leaked material we publish is classified. But it is a mistake to imagine that all leaks of classified information are bad. Some expose wrongdoing or allow the public to debate relatively nonsensitive matters that government would prefer to handle without scrutiny. The government massively overclassifies information, so a law banning all leaks of supposedly sensitive material would inevitably criminalize conversations between officials and citizens about subjects that are not genuinely sensitive and chill in dangerous ways the ability of officials and former officials to speak out on important policy questions.

Traditionally, the law has respected this fact and has made criminal only leaks of specific types of classified information -- the names of intelligence agents, for example, or material related to encoding systems used in intelligence work. Certain disclosures of defense information, if done with intent to harm national security, can be prosecuted under espionage laws. And no one is suggesting that every government employee should be free to decide what remains secret and what does not. Generally speaking, leaks are handled under administrative personnel rules; if you get caught, you can lose your job.

One trouble with creating a blanket criminalization of classified leaks is that it gives the executive branch almost unchecked authority to remove information from public discussion. Classification rules are generally not made under statutes but by executive orders, meaning that the president would have the authority both to decide what information is classified and to prosecute people for leaking it. Such unchecked power would be dangerous even if overclassification weren't rampant.

But there is hardly an area where government is more capricious than in its determination of what secrets it needs to keep. Several years ago, to cite one example, the Federation of American Scientists sought historical and contemporary data on the aggregate intelligence budget under the Freedom of Information Act. After some litigation, the government released the figure for fiscal year 1997 and then, voluntarily, for 1998. It has refused, however, to release data for subsequent years and claims that releasing the figures for the years 1947-1970 could compromise "the interest of national defense or foreign policy" and "intelligence sources and methods." There have been times when the disclosure of irrationally or unjustifiably classified information has served the public. Certainly, in a system that depends on an informed and skeptical electorate, the government should not be moving in the direction of criminalizing public debate.

2001 The Washington Post Company

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