Can something positive come out of the concern over government intelligence operations, the leaks exposing them, and the investigations of the leakers?
Pfc. Bradley Manning is in custody awaiting sentencing, and Edward Snowden, a former contract worker at the National Security Agency, has been indicted but avoided arrest. He’s gained asylum in Russia — at least for a year.
Former State Department arms expert Stephen Kim, indicted for allegedly leaking secrets about North Korea to Fox correspondent James Rosen, is involved in pre-trial negotiations. And the FBI is still trying to identify the person or persons who gave information to the Associated Press about the CIA’s clandestine operation that infiltrated al-Qaeda in the Arabian Peninsula’s bombing operations.
Those who allegedly broke the law should be handled through the judicial system. But in the wake of these four incidents, perhaps it’s time to pause and separate fact from fiction, and see how we can remedy a problem we have: Every leak of national security shouldn’t require invoking the Espionage Act of 1917, which, at its extreme, calls for life imprisonment or the death penalty.
We need a separate law. It would be used when the leaker’s intent is not to harm the United States or aid a foreign nation or entity.
Easier said than done. Remember, criminal laws are written as much to deter actions as they are to punish offenders.
That 1917 act was passed hastily, two months after the United States entered World War I against Germany in an effort to mete out harsh penalties for interfering with military operations, as well as traditional spying. Several amendments have been added to try to address various types of unauthorized disclosures.
There already are other laws that can cover leakers. Snowden, for example, in addition to being charged under the Espionage Act, faces charges under a statute that punishes individuals for theft or conversion of government property for their own use or that of others. It does not necessarily involve disclosing classified information, and it carries the possibility of imprisonment for up to 10 years. Under the Espionage Act, the penalty could be death in wartime circumstances.
Leakers, however, act with varied intentions, and the law should consider that. The leaker could be a whistleblower, for example, frustrated after trying within the system to expose wrongdoing or waste and then turns to the news media.
But he or she also could be an individual with less noble motives: They simply disagree with an administration’s policies and want to promote their own views with cherry-picked intelligence; they are temporarily angry at their job situation; or they just want to gain favor with the media.
Another problem is how to determine whether the leaked information would harm national security. That knowledge comes after the fact, but we’ve seen that the nation survives leaks.
In the past 30 years, I’d say few leaks have been so major that they generated full-scale investigations, and only a handful have led to prosecutions.
We do have to acknowledge that the computer age is different, of course, and intensifies the volume of information that can be disseminated. In today’s world, a Manning can release up to 700,000 military reports and diplomatic cables and a Snowden can spend months downloading any number of classified documents, then disclose a few at a time.
Under the “better to be safe than sorry” category, it’s easier for the government to say — as in the aftermath of the first NSA leaks — that extraordinary damage was done. That, however, was followed by the official release of NSA documents that could have been made public years earlier and lessened Snowden’s impact.
The last nearly successful legislative attempt to address leaks was in 2000, when Congress passed the Classified Information Protection Act of 2001. It made it a crime for a government employee or others authorized to have access to classified information to “knowingly and willfully” disclose such information to someone known not to be authorized to receive it.
It did not require that the government prove the disclosure damaged national security. The measure defined “classified information” as material “clearly marked or represented . . . by appropriate authorities . . . as requiring protection against unauthorized disclosure for reasons of national security.”
The major weakness in that measure was the universal agreement that the present U.S. system of classification is a failure. Too many people have the authority to classify documents and there is no penalty to the bureaucrat who overclassifies one.
Nonetheless, Congress went ahead and attached this legislation to the fiscal 2001 Intelligence Authorization Act that went to President Clinton.
On Nov. 4, 2000, Clinton vetoed the bill, warning Congress about the difficulty for anyone seeking to legislate to cut off leaks. His reasoning rings true today.
Clinton said his obligation as president was “to protect not only our government’s vital information from improper disclosure, but also to protect the rights of citizens to receive the information necessary for democracy to work.” He noted, as have others, “Furthering these two goals requires a careful balancing.”
Clinton worried the legislation he vetoed posed “a serious risk” of having “a chilling effect on those who engage in legitimate activities,” which he defined as “appropriate public discussion, press briefings, or other legitimate official activities.”
In 1904, Supreme Court Justice Oliver Wendell Holmes, in his dissent in the Northern Securities case, wrote: “Great cases, like hard cases, make bad law.” But he went on to say they were deemed great cases not because they shape future law, “but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”
We are in one of those periods — where feelings are running high on all sides.
It’s time for Congress, the executive branch, the public and the media to think seriously about what needs to be done.