Plugging Leaks, Chilling Debate

By Gary Wasserman
Thursday, February 16, 2006

"Persons who have unauthorized possession, who come into unauthorized possession of classified information, must abide by the law. That applies to academics, lawyers, journalists, professors, whatever."

-- Judge T.S. Ellis III

The judge was speaking last month after sentencing a former Pentagon desk officer for Iran to prison for sharing classified information too widely. It didn't seem to matter that Lawrence Franklin was a conservative former Air Force colonel who was using contacts outside of government to lobby for a harder line on Iran. In a week when an American soldier was given no more than a reprimand for smothering an Iraqi general to death, Franklin's 12 1/2 -year sentence was a reminder that this is an administration more horrified by leaks than torture.

The judge's comments were directed to a related trial that he will oversee on April 25 of two former staffers for the American Israel Public Affairs Committee (AIPAC): Steve Rosen and Keith Weissman. They face the possibility of 10 years in prison for allegedly having classified information verbally leaked by Franklin and others and passing it along to reporters and diplomats.

Not content with jailing an employee for mishandling classified material, the government is applying to private citizens a never-used part of the 1917 Espionage Act. Its expanding secrecy powers threaten to paralyze public participation in making foreign policy. The experts, lobbyists and journalists who, in the normal routines of their jobs, discuss confidential information could now become criminals.

No one disputes that verbal leaks occurred; two years of FBI wiretaps on AIPAC recorded them. But despite all this wiretap evidence, the government felt it necessary to add a "sting" operation, which was engineered with Franklin's help in the summer of 2004. Having "flipped" Franklin after finding confidential documents that he had carelessly brought home to work on, the government had him call the AIPAC lobbyists -- whom he hadn't spoken to in a year -- on a supposedly life-or-death matter. He claimed that Iran was planning to kidnap and kill Americans and Israelis working in Iraq. Franklin said he wanted to warn the White House, something that he, as a mid-level analyst, didn't have the clout to do himself.

The lobbyists fell for the appeal to save lives. They contacted a Post reporter and an Israeli diplomat and tried, unsuccessfully, to reach the National Security Council. Months afterward, under what former staffers say was considerable pressure from the government, AIPAC fired them. A year after the sting they were indicted. U.S. Attorney Paul McNulty announced the indictments last August, declaring that "when it comes to classified information, there is a clear line in the law." Alas, nothing could be less clear.

Information is the lifeblood of policymaking. Expanding restrictions on information adds greatly to the power of the executive; criminalizing citizens' contact with that information adds even greater uncertainty. Any Washington power lunch touching on national security issues -- between Reporter A or Lobbyist B and Official C -- inevitably contains something that someone has classified. Who's to know what's legal? Are "classified" White House discussions about Hurricane Katrina to be treated the same as troop movements? Even if the information is classified, is the official authorized to disclose it? In a long conversation, where is the "clear line"? For some leaks Bob Woodward gets a bestseller; Steve Rosen may get jail.

Officials have their own uses for leaks. In the past AIPAC has provided an informal back channel to the Israeli government. Giving a lobbyist details about illegal Israeli settlements is a diplomatic warning to Jerusalem, but only if he passes them on. How is he to know the difference between an authorized official and an FBI sting?

For better or worse, the rules of this game have traditionally been enforced by the players. Reporters receiving national security leaks have shown them to officials for confirmation and comment. Advocates and experts who spread information meant only for their ears were cut off from further briefings. This rough-and-ready marketplace lasted throughout the Cold War. Now a more fearful leadership finds such practices intolerable.

One argument for why autocratic regimes such as pre-World War II Germany and Japan have engaged in risky foreign adventures is that these narrow elites are not subject to the kind of outside review by knowledgeable people that exists in democracies. The run-up to the Iraq war has raised questions about whether America's marketplace of ideas in foreign policy is still viable. Did the Bush administration's success in gaining public approval for its invasion of Iraq have something to do with its ability to control secret information in a way that muted doubts about inflated claims of Iraqi threats?

Judge Ellis has it backward. A democratic government does not, in general, "authorize" the information citizens are allowed. Given enough information, citizens authorize and control their government. Or at least we used to.

The writer teaches lobbying at Georgetown University, where he is an adjunct professor of government.

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