10/26/00 1:55 p.m.
Why Now?
New Official Secrets Act is a bad idea.

By Daniel E. Troy, a Washington lawyer & an associate scholar
at the American Enterprise Institute

ongress has included in the Intelligence Authorization Act, currently on the president's desk, legislation which would make it a crime, punishable by up to three years' imprisonment, for any current or past federal employee to disclose any classified information. This bill would dramatically exacerbate the lamentable tendency to criminalize public-policy differences. It would also substantially increase the power of an administration to intimidate and prosecute its opponents.

Government employees have many good reasons not to disclose properly classified information. If caught, they can lose their security clearance, and along with that, their job. Also, current law already prohibits the disclosure of classified information which would injure national defense, aid a foreign government, or disclose certain intelligence information.

Responding to no apparent problem, the new legislation would expand those laws and subject to prison any past or present government employee who discloses any information labeled classified. Yet, as Sen. Daniel Patrick Moynihan — who served on the Senate Select Committee on Intelligence and who has written a book on the subject — has pointed out, the government classifies far too much information, much of it inappropriately. Moynihan's book, Secrecy: The American Experience, estimates that the U.S. government classifies 6 million documents per year. Given the difficulty of handling classified documents, this tendency to over-classify, in addition to its other faults, makes government far less efficient.

Anyone who has worked in government and had access to classified information, as I did when I worked in the Department of Justice's Office of Legal Counsel, knows that information is often classified to avoid embarrassment, not just for national-security reasons. The classic, oft-cited example is that of the Pentagon Papers. In fact, Erwin Griswold, President Nixon's solicitor general who defended the decision to try to suppress the papers before the Supreme Court, later conceded that they were kept secret to prevent "governmental embarrassment of one sort or another."

Allowing the government to prosecute anyone who discloses classified information would vastly expand both the power of government and the incentive of those in government to classify information. Any information stamped classified, no matter how inappropriately, would become leak-proof. At a minimum, the law should be amended to make clear that anyone prosecuted under this law must be able to challenge whether the information actually meets the definitions of confidential, secret, or top secret. The current version seems ambiguous on the issue.

In any event, the bill would further increase the incentives to over-classify information. The executive branch, which would presumably be the subject of the leak, would also be empowered to decide whether to prosecute those who had leaked about it. This decision — to prosecute or not — is generally considered unreviewable by a court. Thus the bill would dramatically expand the power of the president to silence his opponents.

Imagine if the Clinton administration had been able to choose to prosecute any employee who disclosed information which had been labeled classified. It almost certainly would have classified information of the type revealed by whistleblowers such as the Energy Department's Notra Trulock, or the Resolution Trust Corporation's Jean Lewis, or any variety of Clinton administration "enemies." Had these whistleblowers revealed that information, they would then have been open to prosecution by the very administration they were condemning. Had this law been in place, we would know far less than we know now about Clinton administration violations of the law.

The law would apply to past government employees as well. Accordingly, future administrations could criminally prosecute employees of past administrations if they were to write a book or article which arguably disclosed classified information. One of the first things I worked on at the Office of Legal Counsel was an effort to close down the Palestine Information Office and the PLO Observer Mission. Some of the information involved in that matter was classified, even if it should not have been. Certainly much of what was then classified is not meaningful anymore. If one of my colleagues were to write about that episode even decades later, and inadvertently disclose classified information, he or she could presumably be subjected to prosecution.

It is true that the law only covers "willful and knowing disclosures." But an administration may be willing to roll the dice and criminally prosecute that former employee, especially if he or she were an administration critic. Moreover, it would be difficult to defend oneself in such a suit, because the government would have access to classified information, and the former employee would have only limited access to it.

Some of the ill effects of this bill would be palliated if the government quickly declassified documents. But it doesn't. In fact, the declassification process can take decades, as the CIA and Kennedy-assassination declassification projects reflect. This makes sense: What is the incentive to spend massive amounts of time and money declassifying old documents? Although different provisions of the current Intelligence Authorization Act adopt a watered-down version of Sen. Moynihan's long-ignored proposal to speed declassification, even these provisions would not change THE natural incentive.

The new law would not just chill the speech of past and present government employees, however. Journalists would almost certainly be subject to more subpoenas and be involved in more criminal investigations than they are now.

It is ironic that government would be passing such a law just as it has held hearings into Al Gore's efforts to keep secret his deal with Chernomyrdin, which was first reported in the press. Although the law would not apply to those who leak directly to Congress, as the Gore\Chernomyrdin episode illustrates, Congress often follows up on administration malfeasance first uncovered by the press. The new legislation would foreclose this option.

There is yet another irony in the proposed law. Often an administration deliberately leaks information, some of which may be classified "confidential," the lowest level of classification. Those leakers would technically be violating the criminal law. Presumably, the leakers would not be prosecuted by the administration that they were serving. But they could be open to prosecution by a future administration. Also, there are still some principled (and scared) individuals who will refuse to violate a criminal law. In this way, the law could end up precluding an administration from disclosing even information it wanted the public to have.

America has survived for centuries without such a law. We won the Cold War without such a law. We have just experienced one of the most corrupt administrations in history, which was willing to use any and all means to cover up its frequent malfeasance. Why on earth would we want to pass such a law now?