Stopping the Leaks  | American Journalism Review
 AJR  Columns :    FIRST AMENDMENT WATCH    
From AJR,   December 2002

Stopping the Leaks   

Ashcroft isn?t calling for new legislation to prosecute leakers. But the battle isn?t over.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     


Attorney General John Ashcroft has declared that we don't need any new statutes to make unauthorized disclosure of classified information a crime. In an October 22 report to Congress, Ashcroft opined that he has sufficient ammunition in his arsenal to go after government leakers without having to bother with fresh legislation.

In December 2001, in the wake of the terrorist attacks, Ashcroft formed an interagency task force to look into how to stop leaks. Also last year, Scott Armstrong, founder of the National Security Archive, convened a panel of experts from inside and outside the government to provide some perspective and input into Ashcroft's deliberations. Armstrong was quoted in the Washington Post and elsewhere praising the attorney general's epiphany that it would be more expedient to go after the sources of leaks rather than championing laws that "would hurt the media." Whew. Bullet dodged.

But there is still much to fear in Ashcroft's report. True, he's not calling for new legislation at the moment. But he also hasn't ruled it out. He speculates that "carefully drafted legislation specifically tailored" to address leaks rather than classic espionage "could enhance our investigative efforts." And in the meantime, he has lots of other ideas for initiatives that will chill government whistle-blowers, and those may not bode well for the press, either.

Ashcroft calls on agencies that originate or handle classified information to launch "immediate and aggressive" investigations of unauthorized disclosures. The Presidential Executive Orders governing classification procedures should be examined, he says, with an eye to expanding the authority of the director of central intelligence to protect secrets "across Government." The government should consider using digital technology to track classified data, he says. The Justice Department and the FBI will become involved in investigations when the attorney general so directs. The report is silent on subpoenaing journalists, but that's something the Ashcroft Justice Department condoned long before September 11, 2001.

All of this, the attorney general says, can be done without new legislation, meaning the executive branch will take care of it without the bother of getting Congress involved. That could mean that the only public input would occur when proposed regulations are published in the Federal Register.

This might not be so bad if determining what information is classified were subject to meaningful oversight from other branches of government in the first place. But it isn't. The Presidential Executive Order (currently, the one issued by President Clinton in 1995 and modified in 1999) outlines the broad procedures governing classification and declassification. The procedures are implemented through regulations drafted by the agencies themselves. The judicial branch is notoriously reluctant to second-guess such decisions, fretting about possible consequences to national security.

Let's stipulate that no journalist is interested in publishing information that would pose a danger to the U.S. But many classified documents don't threaten national security. The Defense Department and the CIA aren't the only ones who classify information. Since December 2001, Bush has given the Environmental Protection Agency and the secretaries of Health and Human Services and Agriculture authority to declare information "secret."

Ashcroft seems to believe that all leaks are created equal. Nothing in his report limits the initiatives he proposes only to leaks that endanger national security. It was this failure to distinguish among different kinds of leaks that outraged the media when an "Official Secrets Act" was proposed in 2000--making all unauthorized disclosures of classified information a felony. Clinton vetoed the act. In United States vs. Morison, the only successful prosecution of a government employee for leaking classified information to the news media, Judge J. Dickson Phillips wrote that the statutes under which Samuel Loring Morison was convicted were "unwieldy and imprecise." Morison's prosecution in the 1980s passed First Amendment muster because the government convinced the jury that the leak of reconnaissance photographs of a Soviet aircraft carrier was "potentially damaging to the United States," not simply information that was somehow "related to defense."

Gratuitously exposing military secrets is one thing; providing the public with information it needs but that the government wants to keep under wraps to avoid embarrassment or controversy is another. Ashcroft utterly fails to acknowledge this distinction in his report.

We may have dodged one bullet. But the battle is by no means over.

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