Walter Pincus / The Washington Post
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.
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-Qaida 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 U.S. 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.
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.
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.”
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.”
— Walter Pincus writes a column for The Washingon Post.