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Jailing the messenger

With big media back on its heels, the CIA published an “unclassified” memorandum that recommends using espionage laws to prosecute media outlets that publish or broadcast classified leaks. Brave New World.
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The latest opinion polls show the American public takes a dim view of its media outlets in the post 9/11 world - numbers punctuated by a roiling fraud and fabrication scandal that has shaken The New York Times. With big media back on its heels, the CIA fired its own broadside this week, publishing an “unclassified” memorandum that recommends using espionage laws to prosecute media outlets that publish or broadcast leaked information from government officials if that information turns out to be classified.

The memorandum, ‘The Consequences of Permissive Neglect’, argues that the U.S. media has become an “open vault of classified information on U.S. intelligence collection sources and methods” which “pose a serious, seemingly intractable problem for U.S. national security.” In effect, the CIA wants the vault sealed shut.

The CIA memorandum, written by James B. Bruce, a senior official on the agency’s “foreign denial and deception committee,” surprisingly has received no national media attention so far, even though it goes straight to the heart of the current government-media relationship. These memoranda, generally written by active CIA staff or recent retirees, do not represent official CIA policy. But they have in the past been used as a way for the intelligence agency, which technically is not supposed to tamper in domestic politics, to get on the record with Congress and with the public on issues that it regards of critical importance.

The proposal to treat leaks of classified information as a criminal act is, in itself, is not unusual or particularly controversial. Virtually every president, at one time or another, demands that his cabinet investigate the source of particular leaks to the media — usually those that prove politically embarrassing, but also some which are judged to be potential violations of the Espionage Act of 1917.

But Bruce’s memorandum goes far beyond that, proposing to target the media itself, which Bruce sees as part of an “unholy alliance” of officials with security clearances and their journalist accomplices.

“That’s a dramatic change,” says Tom Rosenstiel, a former Newsweek and Los Angeles Times correspondent who is now vice president of the Committee of Concerned Journalists.

“Let’s be blunt. These guys really don’t believe in the 1st Amendment,” he says. “They believe in secrecy, not sunshine, they believe in control, not pluralism. They want to intimidate and chill the press, and they want to criminalize the free flow of discussion, and they want to use September 11 as the lever to do this.”

The passions this debate ignites generally stay inside its two major constituencies: those in government, and those in the media.

In the past, Rosenstiel says, the public had a ready catalog of recent cases of government using secrecy laws to attempt to conduct covert wars, domestic espionage and other controversial and illegal acts without public debate. In this category, Rosenstiel notes, would fall covert aide to El Salvador and the Iran-Contra affair during the Cold War, the use of the CIA to spy on enemies of the Nixon administration and military tests that deliberately exposed soldiers and civilians to radiation and other dangers during the 1950s.

“Leaks of classified information played a role in halting many abuses,” he says. “In the past, an idea like this wouldn’t hold up legally. But this is a different era.”

Indeed, the CIA memorandum concedes that proponents of a crackdown on leaks face “an important anomaly:”

“Nearly all the most compelling evidence in support of the argument that leaks are causing serious damage is available only in the classified domain,” Bruce writes.

The counter-counter argument
Bruce does a good job trying to make up for this by recounting some instances where leaked classified information did compromise national security.

These include stories that tipped the Soviets in 1958 that American spies were monitoring their missile tests, 1971 stories on U.S. eavesdropping on the Soviet Politburo, and more recent examples where leaks tipped the Chinese about investigations at Los Alamos and helped India understand how to conceal its nuclear weapons program from spy satellites.

But the main thrust of the argument is contemporary: “Terrorists feed on leaks,” Bruce says. He goes on to describe what is now a well-documented blunder — the 1998 revelation by an intelligence source to Washington Times reporter Bill Gertz that the National Security Agency was listening in on the cell phone conversations of a guy named Osama bin Laden. Not surprisingly, the cell phone calls soon ceased.

“As a result of the public disclosure, the United States was denied the opportunity to monitor and gain information that could have been very valuable for protecting our country,” White House spokesman Ari Fleischer said last June.

For most journalists, and polls show, for an overwhelming majority of the public, the idea that the government should be able to prevent certain information from leaking into the public domain is uncontroversial.

“It all sounds very reasonable, and of course, all nations need spies, so why not have a law that says you can’t put this in the newspaper?” says Stephen Engelberg, who won a Pulitzer Prize for The New York Times and covered the CIA-Los Alamos embroligio before becoming a managing editor at the Portland Oregonian. “But the 1st Amendment is out there saying the press has special rights and responsibilities to inform the public. If you follow this thing down that path you’re going, virtually nothing on the subject of terrorism, for instance, could be discussed between a reporter and a source without each of them wondering whether they were going to jail.”

Rooting out the leakers
The CIA memorandum notes that current laws already would be sufficient to prosecute those leaking such information, but are rarely enforced. Indeed, Bruce notes that only one public legal prosecution on such grounds has ever occurred (in 1985, U.S. v Morison). But he also reveals that “at CIA alone, since 1995 there have been hundreds of [internal] investigations of potential media leaks of Agency information, and a significant number of these have been referred to the Department of Justice for follow-up action.”

Should this zeal now be applied to those who publish the information?

Past case law, most importantly the Pentagon Papers, suggests that the courts would reject such a move. But some journalists fear the Bush administration and a sympathetic Congress may attempt to use national security to get around the constitutional issues.

“This paper, like this administration, has a different tenor on these issues and they don’t even pay lip service to the 1st Amendment,” says Bill Arkin, an NBC News analyst and Los Angeles Times columnist who is frequently the recipient of such leaks. “They want to shut this down by claiming damage to national security, but they don’t want to have to produce the evidence of that damage.”

No American administration has governed this country without, at some point, taking a stab at the problem of “leaks” to the media. Indeed, John Adams, in what historians agree was the one disastrous error of his illustrious career, promulgated the notorious Alien and Sedition Acts of 1798, which threatened with jail anyone who published “scandalous and malicious writing or writings against the government of the United States.”

Subsequent administrations led by Thomas Jefferson and then Adam’s ally, James Madison, who actually wrote the legislation, wisely pardoned their victims and let the legislation expire. Their main affect in the long run was to sully Adams’ reputation and lead to the rout of his Federalist Party in the 1800 election. Those on the receiving end of leaks today hope history will be heeded and the latest move to control such leaks will be thwarted.

“It would be incredibly chilling,” says Engelberg. “Anyone who has any sense of what a free press should do in a free society will quickly see that this would be an invitation to disaster.”