Question authority: Part IV–national security leaks to the press: what to do?
Under what circumstances should a national security employee decide to disclose classified information, and to whom should he/she disclose it? Should the leaker be met with penalties for these actions, and, if so, what should the punishment be? And what’s the role of the press? Should it be allowed to publish any leaks short of treason, no matter what the national security consequences? And if not, how should those consequences be judged, and by whom?
Those who argue that leaks to the press are never justified, and should always be punished severely, believe that the framers have already put sufficient checks and balances in place so that the system can deal with any situation that could come up without the need for the press to get into the act and sensationalize and publicize the situation prematurely. The proper course of action for a national security employee would be to launch an internal investigation within his/her own agency, and if that fails to remedy the prolem, to go to the committee in Congress charged with Congressional oversight. The legislative branch would be acting in time-honored fashion as a curb on the executive branch, just as the Constitution intended.
Those who disagree with the above base their contention on two ideas: distrust of government oversight (fostered by such events as the initial My Lai coverup, as discussed in Part II), and the public’s right to know. In general, they also tend to routinely downplay the security repercussions of disclosures such as the CIA detention centers in Europe (I discuss the origins of this attitude here and here).
Recent events indicate that some seem to consider national security employees to be justified in making their own individual decisions to act as watchdogs, spilling the beans and breaking their oaths of secrecy if they merely happen to believe there’s an illegal act on the part of the CIA, and to believe that an internal complaint and investigation (the usual procedure) wouldn’t get the results they’re looking for, without actually launching one:
“This a matter of principle,” said Ray McGovern, a former fellow CIA analyst, “where [McCarthy] said my oath, my promise not to reveal secrets is superceded by my oath to defend the constitution of the U.S.”…McCarthy’s supporters say if she revealed classified information, it’s because she strongly believed what was happening was wrong. With unsympathetic superiors and a Congress that has been reluctant to investigate, she had no one to turn to but the press.
Did McCarthy (or whoever the leaker actually was) really have no avenue but the press? If the leaker’s conscience was troubled by confidential information gained in the line of duty, didn’t that person also have a duty to go through internal channels or to Congress? Was this ever done in the detention center case, or did the leaker simply cut to the chase (and the press), assuming an internal investigation would go nowhere?
When that process is short-circuited, the leaker unloads his/her information in the most public way possible, which can end up being the most damaging way. Right now the only people deciding how bad that damage might be before it occurs are the leaker him/herself–hardly the most objective judge of that–and the press (ditto). Once the story is published, it’s too late: the cat is out of the bag, the horse is out of the barn.
The judiciary was meant to act as the check and balance on potential leakers and the press–and in the past, of course, we also had more self-imposed restraint on the part of the press, especially in times of war. Now, however, not only does the press see itself in the role of government adversary and whistleblower, but personal repercussions are few and far between, short of treason (a very hard case to make in most situations).
The landmark Supreme Court decision in the Pentagon Papers case gave a relatively free reign to the press in such matters, freeing it from the fear of prosecution except in the most egregious of cases (the excerpt that follows is from the post of mine that I just linked):
In 1997, Adam Clymer of the Times wrote, in a review of a new book–The Day the Presses Stopped: A History of the Pentagon Papers Case, by David Rundestine:
“The Supreme Court’s 6-to-3 decision in the Pentagon Papers case was a monumental victory for The New York Times and The Washington Post and a huge defeat for the Nixon Administration. In practical terms, it meant that the United States Government bears an awesome — perhaps impossible — burden before it can censor the press. But the opinion written by Justice William J. Brennan did not tell courts how to weigh that burden, though it made clear that a just claim of injury to the national security is not enough.”
So, “a just claim of injury to the national security is not enough.” Think about it: what would be enough? How bad an injury to the national security is sufficient to muffle a story, and how certain does this injury have to be?
So that brings us to where we are today. And Houston, we’ve got a problem (although I’m sure some would disagree with me!)
How do other countries with a tradition of a free press deal with the situation? Some punish security violations far more stringently. Britain, for example, has a statute called the National Secrets Act, which establishes penalties not only for the leaker, but for the press publishing the information. And there is no discretion given to the leaker or the press on such matters:
…due to the extreme strictures of Britain’s Official (National) Secrets Act, certain topics can be designated as matters of national security of which any published (or public?) discussion is completely forbidden ; if this order is violated, the “offenders” can be immediately incarcerated, their publication facilities etc. closed/dismantled; further, if any mention whatsoever of those actions (i.e. against the publisher of the forbidden information) is made by any other publisher, the publishers of that subsequent information are likewise subject to the exact same penalty…According to other terms of this National Secrets Act, any publisher/news organisation who receives information, publication of which would violate the previously noted terms, is obliged to inform British authorities of that fact — as well as the source of the information.
The British law represents the opposite extreme in dealing with the problem of leaks to the press–perhaps too extreme? In the US at present, the only possible legal penalties (as far as I know) are charges such as espionage and treason, very high crimes indeed–and very difficult, if not impossible, to prove in instances that don’t actually involve outright spying. Loss of job and/or security clearance is of course also possible. Some ways to stretch the espionage laws to cover the situation of leaking to the press have also been tried, most notably in a 2003 case involving a leak by a lobbyist to the Israeli officials.
Should we pass a law as stringent as Britain’s? At the moment, I’m not sure what my opinion is on that; I don’t know how the British law has been working so far, for example. However, in doing research for this post, I discovered that a law something like the British Official Secrets Act actually was passed in the US–amazingly enough, prior to 9/11, under the Clinton administration.
The law was promoted by none other than the now very beleaguered George Tenet, who was head of the CIA under Clinton and during Bush’s first administration. The bill was in fact passed by Congress in 2000, on Clinton’s watch; and it even had Democratic support at the time (any bets on whether that would happen now?), according to this Scripps-Howard article from October of 2000:
The ship of state, some say, is the only ship that leaks from the top.
So many high-ranking officials could theoretically get tossed in the brig under a sweeping new law about to be signed by President Clinton. The law, drafted without public hearings, for the first time makes it illegal to leak any classified information.
“Because of the seriousness of the leaks and the releasing of classified information, we needed to take some additional steps,” said Rep. Gary Condit, D-Calif., who serves on the House Permanent Select Committee on Intelligence. “We hope it helps.” Condit said he and other Democrats attempted to modify the measure to account for some concerns. But the full implications of what critics are calling America’s first Official Secrets Act remain unclear – for whistle-blowers, for journalists, and for security officials themselves…
“This is like a sea change,” said Kate Martin, director of the Center for National Security Studies. “Congress has never even gone half this far.”
But the sea didn’t change, after all. The article’s prediction turned out to be incorrect: Clinton did not sign the bill. He vetoed it, instead. The article doesn’t say why, and I could find no further information on that. And the 2000 bill never contemplated penalties for the press, by the way; it limited punishment (a fine of up to the relatively paltry sum of 10,000 dollars, and a possible imprisonment) to the leaker him/herself. Still, it failed to garner enough votes to override Clinton’s veto.
So, what about some version of the British act? Is it overkill, causing more potential problems than it fixes? Does anyone actually know how the act is working in Britain–its pitfalls and its accomplishments? If so, I invite you to come forward in the comments section–inquiring minds want to know.
It seems logical to me that in order to have any sort of workable national security at all, it should only be breached for extremely serious governmental offenses, and then only after other ordinary channels have been exhausted and found wanting. My suggestion would be penalties for national security leakers who go to the press first, without trying other remedies, as well as penalties for the press if the information damages national security as defined by the courts (and I would hope they would define it at least somewhat less narrowly than in the Pentagon Papers decision).
The goal of instituting these changes would be to motivate both leakers and the press to cease and desist except in cases in which (a) the leak involves a very major governmental offense; (b) has already been reported to the proper authorities in the way the Constitution envisioned; and (c) has been covered up. The idea is to create that situation I spoke of in Part III, in which the needs of national security and the public’s right to know would come into better balance.
Untrammeled executive governmental power is dangerous. But we also can’t afford to ignore the danger of individual leakers and journalists with an agenda, setting themselves up as unchecked arbiters of what secrets should be leaked and publicized around the world. It makes a mockery of national security, and of the oaths taken by those sworn to protect it.
And no one so far has been able to answer that.
Obviously Unknown chooses to not read my comments concerning Hitler and the double agent in WWII that helped the Normandy Landing. Or he chooses to be obtuse and purposefully try and cover it up. Either way, it’s indicative of bad logic and even worse propaganda.
People who choose not to look at the good arguments and state that everybody is out to get them or that nobody can debunk them, are quite suspicious to me.
Apropos of Holmes’ apropos of nothing, here’s a site that helps to put the Bush administration in perspective – for those of us who are (as I am) a bit historically challenged.
http://www.americanpresident.org
Go to Presidency in History for brief essays on all our previous fearless leaders – some of whom make George Bush look like JPII…or Hitler, depending on whose bio you read.
I have to conclude that the American electorate have always been a bit loony, and our Presidents’ characters have ranged from saintly to satanic. I shouldn’t be so discouraged over the situation today. We seem to go through this kind of thing every so often.
Apropos of nothing, I was just reading about labor arbitration. And it was Woodrow Wilson who set up compulsory interest arbitration (to set wages, benefits, etc) for various domestic industries by executive fiat.
Executive power indeed if Bush could simply assign a board to set the wage levels.
“…it’s an acknowledged fact by everyone that Bush, Cheney et al., have from the beginning of their first term, way before 9/11, been more focused on maximizing executive power and minimizing the flow of information for public and congressional oversight than any Administration in recent memory.”
OK, I can dig it, man. (Sorry – attack of the 60s. It’ll pass…)
I see your point, and I have no problem acknowledging the truth of your statement. I also acknowledge that my level of concern is not as high as yours – a difference in interpretation, not perception.
I guess my problem is not with the facts – my problem is with the hysteria. The factual tone of your statement leads me to respect your position far more than all the emotional and personal rhetoric I’m used to seeing in these comments.
Again, this is probably an image issue – certain people shouting “Bush = Hitler” rather than “It’s an acknowledged fact by everyone that Bush, Cheney, etc…” Admittedly, the latter is not exactly pithy or inspiring. But the former only makes the speaker look like a paranoid schizophrenic on crack.
I’m not actually looking for a reason to dismiss Unk’s (or anyone’s) reasoned arguments against the administration’s policies. But whenever I hear disapproval of something Bush has or hasn’t done, the image of an aged hippy waving a Bush = Hitler sign pops into my head. That’s just me thinking in cliches – if it even qualifies as thinking.
Maybe that’s the trick – I need to filter the hippy out of my thinking. It would help me a lot, though, if other people would filter the hippy out of their language.
probligo,
Sounds like you’ve got your share of secrets and scandals to deal with. Guess it goes with having a government. Can’t live with it, can’t live without it. Or stand it up against the wall and shoot it, more’s frequently the pity.
I’ll check out the background on Waihopai. That name seems familiar, but I can’t recall why. I’m sorry – all I know about New Zealand is Peter Jackson, kiwis, and really big crickets.
Are you a reporter by any chance? Or just an extraordinarily well-informed citizen? Your posts seem more fact-based and your opinions less freaky than I expect to find in the comments section.
Oh – I do remember reading about the Skyhawks, but that’s because my Dad used to fly them in the USMC. Great little plane, but if you don’t need it you don’t need it.
Well, Unknown Blogger, the leaks are crippling our ability to defend ourself in at least one regard.
If our enemies think they will be imprisoned forever, tortured, and possibly beaten to death if captured, they’re less likely to surrender and more likely to fight to the death if cornered.
If only they hadn’t leaked that we were torturing people to death…
Damn those leakers! They’re killin’ our boys!
Darrell,
Right, that is why the FBI agent had to issue his statement, correcting the error… or was he, as you imply, covering up?
I will admit this is a curious story, and there are many questions it raises, with as much evidence (maybe more) pointing to the fact that they were not terrorists that that they were. But barring further investigation by the media, we’ll never know will we?
But please play fair Darrell. I never argued that there is no threat. I asked a simple question:
How exactly, as Neo declared, are leaks crippling our ability to defend ourselves?
And no one so far has been able to answer that.
Anon:”I have yet to see a problem that can’t be addressed internally.”
I’ve never had any kind of clearance, but this is the impression I’ve gotten, certainly in the case of the recent CIA and NSA leaks. Perhaps I’m missing something.
The Senate Intelligence Committee knew about the NSA data-mining program. Why didn’t it act if there was such an obvious problem or threat to the Constitution?
Answer: it appears there was not such a problem, not enough of one to require a debate in public about the President’s power as CinC in a time of war, which also seriously compromises the program. The Committee made the assement knowing at least as much as the leaker. Why isn’t that enough?
There is no right in the Constitution saying that the public gets to know about and discuss, then vote on everything. It doesn’t work that way. And it can’t work that way, imo.
The Senate Committee seemingly could have easily demanded evidence enough to assure itself that there was no hanky panky going on, and should have done it anyway, since presumeably the members know about the possibility of abuse, and that’s one of the reasons the Oversight Committee even exists.
Did the noble leaker even ask within their agency whether the Senate Committee was informed? It seems very likely that the primary leaker would have had enough clearance to do it – ask.
Why bypass the Committe? If the leaker thinks it’s important enough to do it, let him or her “put something down on it”. The leaker owes it to the rest of us to out him/herself now at least so that s/he will not do something as or more transparently irresponsible, imo, in the future.
In the case of the secret overseas CIA prisons, I can’t escape the conclusion that the fact that they existed was virtually public. Dana Priest talked openly with many people who acknowledged their existence without anonymity or reservation, and gave details as she reported in her 2002 article. Priest herself reported that Tenet even talked about them in what seemed to be virtually a public speech before Priest’s 2002 article was even published. [He at least talked to a joint meeting of the House and Senate Intelligence Committees.]
But it looks like people only talked openly about prisons which were no longer operating. Certainly the Oversight Committee had a clue, and could have investigated anything sufficiently troubling, at least starting with what Priest found out, if they didn’t already know about it.
The fact that the Committee didn’t report anything untoward concerning the defunct prisons tends to mean to me that nothing very troubling would be going on in the “black sites” currently operating, if any. CIA denies the existence of black sites, maybe to everyone, but the Committee knows at least that they have existed. It’s hard to imagine that the Committee doesn’t know more.
Information gleaned from the then defunct prisons was reported to be highly productive in getting to al Qaeda members. Priest herself called the secret prisons “vital” to the War on Terror – at least she did in her 2002 version of her 2005 article.
Where’s the beef?
SB,
Most of the dirty washing tends to get personal – like at the moment there is a lot going on around one MP (and Minister – equiv to your Secty of…) based on past business dealings.
It is becoming apparent that an ex-business partner has a very large axe to grind and is doing his best to discredit the MP. The latest is here if you are interested.
Because the political and bureaucratic wings are independant the chances of fraud and corruption are reduced. Take a look right through the “Cabinet Manual” that I linked previously.
“Pork barrel” politics has not been unknown here – I can give several outstanding examples – but since Parliament put in place “self-restraining” legislation such as the Fiscal Responsibility Act the possibilities have been much reduced.
The biggest scandals of the past have been more in the nature of total irresponsibility, stupidity and political mismanagement rather than covert dishonesty. There was an interesting one just recently when a historian was given access to David Lange’s private papers after his death. He discovered several reports relating to the Waihopai intelligence station. Google that for more info if you want. That was not “leaking” but plain carelessness and error on the part of the archivists responsible for Lange’s documents. Another instance could be the purchase of F-16As to replace our old Skyhawks, or the purchase of LAV-IIIs for the army. As is well known Auntie Helen got us out of the F-16s (what could we use them for when they would need refuelling twice to get across the ditch to Aus with full armament load on and again once coming back?) but not the LAV’s.
Perhaps it is as simple as “We do not have that many secrets.”
Unknown, last I checked ABC was part of the dreaded MSM, I am not suprised if they got the story wrong, however it is stated in the police report:
Here
I can think of many reasons why the FBI would deny this. There are cells operating here in the US. Keep repeating there is no threat.
CWO3
The counter argument to Unknown latest’s reparte is that it’s Osama and the Middle East cells, not the domestic cells buying phones.
Change Abu Ghraib to GitMo.
Darrell, I never cease to be amazed how some of the most amazing things I read on this site never get picked up by the despised MSM.
People with known terrorist ties buying piles of cellphones? That is BIG news. But alas, it’s yet another story just too deliciously good to be true:
[Bill Vanderland, agent in charge of Midland’s FBI office] said Thursday after the ABC report aired that assertions of a connection between a terror cell and the men who attempted to purchase cell phones from a Midland Wal-Mart were invalid.
“There is no known link or demonstrated link or any other kind of link at this point between the people here and any terror cell,” he said.
I admit it’s not quite islamofascism, but it’s a threat to our democracy nevertheless, and they need to be called out for it at every turn.
Some people might even say that eminent domain and the destruction of personal property rights are more of a threat to “our” democracy, but I suppose believing in the rule of law has that effect on people.
Unknown is perhaps unfamiliar with the spy game. Nobody really knows anything. “facts” “evidence” they don’t exist in cloak and dagger worlds. Which means that the terroists believe the American media about wiretapping, means that there’s some flaw in the cloak and dagger system prowling in the shadows.
A real cloak and dagger system would have made use of disinformation to misinform the terroists through the media, requiring the terroists to double, triple, and quadrupple check their information from the press. A good spy system introduces confusion amongst the enemy, not certainty.
One of the most notorious projects is the British double agent that informed Hitler that D Day was going to hit somewhere other than Normandy.
They had to sacrifice a British raiding force to do it (one of the reasons soldiers don’t like spies), but it was done and the war benefited enormously from it.
If I was running Bush’s propaganda ministry and disinformation office, I would have no reasons to hire Jeff Gannon. What’s the point, does Jeff have the ear of the Democrats or the terroists? What makes him so credible that whatever I give him to report will convince my enemies of what I want to sell them? Nothing, Jeff Gannon was unknown, except to the white house press corps, before them edia started talking about him.
Only a true incompetent at propaganda, like Bush, would use Jeff Gannon in a double blind to fool the American people, which didn’t even know that he existed before.
As I said before, the model disinformation campaign you should study is Dan Rather. Rather was rather quite good, he just happened to fall into his own trap. Having a disaffected Democrat send forged documents to Rather, in the hopes that Rather will take the bait and use his “name recognition” and “credibility” to push the forged documents without checking them, is a marvelous disinformation strategy. Which is one reason why I am 100% certain Bush never came up with the idea. Rove either.
One of the things the fake liberals don’t do well is project themselves into people’s shoes and say “what would I do if i was in their position”. A certain lack of empathy, you might say.
There’s a lot to be learned from actually contemplating what you would need to do to get a Blood for Oil program. There’s a lot to be learned from planning out a fascistic power grab by the executive.
When the plans don’t fit with reality, you either have to change your goals or recognize that something is wrong with your premises.
If you presume Bush wants to get power by limiting secrets, the other question becomes “how far is Bush willing to go”? The fact that Bush won’t violate the Constitution to save it, the fact that Bush has not assassinated people literally or character wise, is inconsistent with the ruthless personage of a person exacting secrets harmful to the republic.
Bush has no fangs, and Dan Rather destroyed himself through no effort on Bush’s part. For Unknown to try to get people like me to be afraid of Bush’s secrecy, is a bit out there.
What’s there to fear, Bush coming into my home and using eminent domain to seize it?
Or is that a legislative perogative on the abuse of the republic.
Bush doesn’t use his veto. Bush hasn’t pardoned anyone. For a secret spy master, that isn’t exactly smart. If you don’t intimidate folks in congress with your veto and if you don’t earn loyalty from the criminals, how exactly are you going to damage the republic? Where’s your help? Spymasters don’t do their own dirty work you know, they never have.
Let’s take a page from the fake liberal’s multicultural section, and let’s try to see it from Bush’s viewpoint.
One of the first things you do is have the Inspector General start giving “freebies” to certain groups outside and inside government. Extra-legal deals, calculated to give more support. Not campaign contributions, but media support.
et al., have from the beginning of their first term, way before 9/11, been more focused on maximizing executive power and minimizing the flow of information for public and congressional oversight than any Administration in recent memory.
Unknown would have others believe that Bush’s declassification of the Niger documents is an attempt to minimize the flow of information to the public. Perhaps, since they used the media, but not quite plausible.
I suppose a lack of congressional oversight is why Congress has free reign of Abu Ghraib, free guided tours of the white glove treatment, as well as advanced knowledge of the NSA taps a year before the New York Times published it.
I don’t think it’s credible or believable, when you put the pieces together.
Neo, in your comment are you under the impression that there aren’t laws on the books now for this? It is covered in “Title 18 of the USC, article § 798. Disclosure of classified information” Available here
Unknown:
The fact that the wiretapping story broke on Dec 16th and in January we have people with known terrorist ties buying untraceable cell phones is all the info I need. We adapt to our enemy and they adapt to us. That is the name of the game in a war, when they get info to allow them to apply countermeasures or change tactics it harms our safety. They may have suspected we were listening in on their conversations but after it hit the press they knew for sure and I have no doubt they immediatley changed tactics, that is how it works, deny it if you want.
CWO3
Harry, you’re right, please pardon my facetiousness.
I should have said, “Remember Jeff Gannon, Maggie Gallagher, Michael McManus, Armstrong Wiliams…”
😉
SB, you wrote you were “just tired of hearing the same, tired old arguments against Bush. After five years, “The Republicans are mad with power” is not even an argument anymore.”
Not the Republicans, SB, the Bush Administration.
Sorry if you think it’s a tired old argument, but it’s an acknowledged fact by everyone that Bush, Cheney et al., have from the beginning of their first term, way before 9/11, been more focused on maximizing executive power and minimizing the flow of information for public and congressional oversight than any Administration in recent memory.
I admit it’s not quite islamofascism, but it’s a threat to our democracy nevertheless, and they need to be called out for it at every turn.
No one seems to have read it, but I found Clinton’s reasons for vetoing the IAA very inspiring.
Ah, for a President who is unafraid of, protects, and even welcomes “an enlightened citizenry” and “an informed and critical public opinion.”
It seems the original link was broken, so I will repost it here, just in case anyone is interested.
It seems like you guys are assuming all leaks are bad, and should be ruthlessly punished, with, presumably, jail time.
It all depends on whether a person believes in the rule of law or not. If you do, jail. If you don’t, no jail. Simple.
Obviously if people think Bush leaked the Plame stuff and Bush is authorized to declassify anything, then people really don’t believe all leaks are bad, now do they. Follow the logic, it’s a good yellow brick road.
So should Deep Throat have done jail time for what he did? How many years? How much time should he have waited for his complaints to languish in “the proper channels” before going to the press?
It’s all about personal responsibility. How many minutes should a person hold his breath under water in searching for a child that is gone to the bottom of the lake? I don’t know, he has to make that decision, and take the good and bad consequences. Nobody decides for him, no big government nanny state “decides” how long he should do this or that. Personal responsibility, it’s a new idea I know, but still.
He’ll still be rewarded if he makes the attempt, and he’ll still be punished if he made no attempt at all to save the child. Follow the logic to DT’s reward/punishment for going press or not.
That’s been done already, AP. Remember Jessica Lynch and Pat Tillman?
No real propagandist would call those “disinformation” campaigns. At most, it was a CNN operation. Real disinformation is very valuable. Dan Rather showed you how it was done, for real, and people should pay attention to his model if they want to emulate such a successful hit and run project.
I don’t tend to think SB pointing out the logical flaws in UnK’s argument is ridiculing him. What next, we’re going to call winning an argument an ad hominem now? We’re gonna call a meme a meme now, eh? What’s next on the hell docket anyways.
UB: “That’s been done already, AP. Remember Jessica Lynch and Pat Tillman?
Not relevant. I dont think the Army’s lie had anything else in mind than to cover the Ranger’s behind. It was a damagingly dishonest lie, but I dont know how politically inspired that was.
Im not sure which Jessica Lynch story your referring to. Some like to imagine her rescue was staged. About her fighting off the enemy till the last magazine, I have no real idea where that originated, doubted it from the beginning and witnessed as the US Army itself debunked that story. I doubt that story was purposely planted by anyone.
probligo,
Gee, why does your example sound so familiar?
Oh, I remember – it’s what CIA analysts get paid to do with other country’s secret information!
Some irony, huh?
I’m wondering – and I don’t mean to sound condescending here – if NZ has a more open information policy because there’s less dirty laundry to dig up. Are your pols as sneaky as ours, and are your scandals as vicious and as frequent? I hope not…
SB,
“I’ve heard of newspapers and activists filing FOIA requests for things like full information on all inmates currently housed at Guantanamo – ridiculous requests that nobody really expects to be granted.”
Yeah, and the same thing happens here as well.
What is important though is the process that follows.
The ultimate end of the process, if the subject was sufficiently important, would be a MP asking the Minister responsible (let’s say for Guantanamo) why he is unable to give information, what makes the question and the answer subject to security issues. The greater the depth of waffle and avoidance, the greater the likelihood that the answer is in fact embarrassing to the government.
The “trick” behind it is to get to the point where you have a very specific item – a Ministerial email of a certain date for example – that you know will have the answer… All that it needs is a moments carelessness (we are dealing predominantly with bureaucrats here, remember, not God) and you can get the lead that provides the answer.
From personal experience, broad and general enquiries get the worst response. Very specific requests can earn a “Why do you want to know that?” response – the highest accolade short of a denied request.
Oh, BTW you have to pay for the answers as well, so asking for all of the PM’s correspondence for the past year will likely cost you an arm and both legs.
So, in the Guantanamo example, split it into three…
1. How many people were transferred to Guantanamo and what are their nationalities?
Get someone else to ask the next one –
2. How many people were transferred to Guantanamo and where and when were they detained?
Get another person to ask –
3. How many Iranians have been discharged from Guantanamo each month for the past two years?
And so you keep working down through the data, gradually getting more specific as you go.
If Q2 was denied as “security related” then you could ask “Who made that determination, and on what grounds?”
It is slow, it is tedious, it does work, mostly.
Sorry UB – Didn’t mean to ridicule, just tired of hearing the same, tired old arguments against Bush. After five years, “The Republicans are mad with power” is not even an argument anymore. They’re large and in charge for the moment, as the Democrats theselves have been in the past. Wait until ’08. The world will turn…
I still have faith in the balance of power, in which the Executive tries to do whatever he wants to whomever he wants and the Judiciary and Legislative branches tell him he can’t.
However, we probably can agree that, in situations where the Executive is tempted to do an end-run around the other branches, then at least the threat of someone leaking might be a deterrent. You’d think that after the Pentagon Papers and Watergate, pols would be much more cautious. Evidently not, considering the whole Plame business.
But I’m not sure the McCarthy case falls into the category of leaking about a clearly illegal activity. On the face of it, there should be nothing wrong with transporting captives to cooperative third countries. The question is, what’s happening to the captives when the get there? We can assume the worst – that they’re being brutally tortured in ways no American interrogator could imagine much less tolerate. But where’s the proof? Do we wait for proof of torture before we condemn McCarthy for leaking? Or do we condemn her merely for leaking? You got me…
Can anybody tell me for sure whether the captives are being tortured for information, wherever it is we’re sending them? And if so, why send them away? Why not do it at home? I know…stupid questions. But I need actual facts, not sinister innuendo regarding the current administration, to make informed judgements.
Actually, I have reversed course. I think the CIA should keep an online blog of all of its findings and activities. I mean, if we’re going to be an open society, let’s really open it up, right?
“But Holmes, you are being ridiculous.”
Yes, yes I am.
And as far as meme’s- meme I will, and meme I won’t.
Ay ay ay, SB, that’s kind of a reach to avoid my actual point and ridicule me instead, but ok, then. Amend that to say:
“As far as I can tell from the discussion here, the only thing seriously being “crippled” by leaks is the Bush Administration’s desire to have the unfettered ability to do whatever it wants to whoever it wants.”
Sheesh.
It seems like you guys are assuming all leaks are bad, and should be ruthlessly punished, with, presumably, jail time. I think Neo herself even took pains to point out that not all leaks are equal.
So should Deep Throat have done jail time for what he did? How many years? How much time should he have waited for his complaints to languish in “the proper channels” before going to the press?
Separately, The Armchair Pessimist ( I love that nickname, BTW) wrote:
“How would people here feel about a rogue operator within one of our intelligence agencies who had it in for the MSM and, without the knowledge or permission of anybody, decided to discredit them by tricking them into running frontpage bunkum?”
That’s been done already, AP. Remember Jessica Lynch and Pat Tillman?
Forgot something about FOIA…
I’ve heard of newspapers and activists filing FOIA requests for things like full information on all inmates currently housed at Guantanamo – ridiculous requests that nobody really expects to be granted. I think they do it hoping they’ll be turned down, just so they can say “See, the government’s not playing by its own rules,” as in Alinsky’s Third Rule for Radicals.
Like a lot of things democratic, it seems like FOIA can be used to attack the institution that created and fosters it.
UB, isn’t that a contradiction?
If Bush’s power to do whatever he wants to whomever he wants is unfettered, then why would he allow anyone to oppose him through embarrassing leaks? I mean, is he really an all-powerful fascist dictator who can destroy his opponents with a wave of his hand? Or just an unpopular president who’ll be back on his ranch in two years?
I think we need to head over to Shrinkwrapped and read about Fascist Chic…
Leaving aside the Democrat hyperbole…do we agree that the burden of secret-keeping should not rest on the shoulders of the press? Unlike CIA employees (and others – me for example), reporters do not take oaths of secrecy and definitely not oaths to defend the Constitution. They are also not given strict guidelines about what’s secret and what’s not, how secret it is, and who they can and cannot talk to about it. They’re amateurs. We should not expect them to just “know better” and use their own judgement. As we’ve seen, it’s not always that simple.
I would suggest abandoning the press and concentrating on a) improving the system of recruiting, oversight, and trust, b) providing more/better avenues of reporting for people who have ethical issues, and c) ruthlessly punishing those who fall through the cracks of a) and b).
Any chance anyone in the Gov is thinking along the same lines?
Hi Sally not sure what your point was with that. You think we should only pay attention to the bold part and ignore the rest?
Holmes seems to think it is unnecessary to evaluate the actual damage caused by leaks before we start advocating policies to restrict them.
I was thinking he might read for example:
“Justice Brandeis reminded us that “those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government.” His words caution that we must always tread carefully when considering measures that may limit public discussion — even when those measures are intended to achieve laudable, indeed necessary, goals.”
As far as I can tell from the discussion here, the only thing seriously being “crippled” by leaks is the Bush Administration’s unfettered ability to do whatever it wants to whoever it wants. How do you think “those who won our independence” would feel about that?
And as for my irrelevant attack, well, “EXCUUUUSE MEME!!!”
Nick B: I think you are on to something. The threat of penalties for the leaker rather than the press seems most appropriate (that was the point of the bill passed during Clinton’s watch, the one he vetoed.) It not only establishes penalties for the leaker, but the threat of those penalties would act as a spur for leakers to follow the proper channels first.
I seem to recall that one result of the “Official Secrets Act” in the UK was to use it to squelch investigation of the Gerry Conlon case, the basis for the movie In the Name of the Father .
The primary reason for things being “secret” there was that they were embarassing as hell for the government. They’d screwed up, and that was the only reason it was “a secret”.
I don’t think it works at all as a concept. I believe that you can place the weight on the shoulders of the leaker themselves without restricting the press — especially if you make provisions for some override of those provisions under the weight of public opinion.
If you think it’s important enough to violate your oath, you should feel it’s important enough to go to jail for, and that means you will, in fact, first attempt to use the more acceptable means for resolving it.
As a hypothetical question, imagine that it wasn’t a matter of leaking secrets but rather total fabrications. How would people here feel about a rogue operator within one of our intelligence agencies who had it in for the MSM and, without the knowledge or permission of anybody, decided to discredit them by tricking them into running frontpage bunkum?
(Truth in blogging: Personally, I’d buy the guy a drink)
UB: Holmes, I refer you to my post at 5:58PM yesterday.
Referring UB to same comment:
As President, therefore, it is my obligation 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.
Which makes at least as much sense with the “not only/but also”‘s reversed.
And please, can we stop irrelevant attacks on the “meme” meme?
Holmes, I refer you to my post at 5:58PM yesterday.
And please, can we stop saying “meme” now?
In the 1980s, one of our lead newspapers (WashPost or NYT) exposed we had a spy ring in Libya, and all the Libyans that were assisting us were killed. Other US newspapers, evidently quoting a US Senator, revealed that the US was tracking Osama bin Ladin by his satellite phone in 1998, and he promptly never used it again. We lost him, and I’m sure we would really like to know where he is now. Actually, about five thousand dead Americans would really like to know – who will answer them?
The Democrats don’t care how many die, they’re too ruthless for that if their methods allow them to sniff power.
It’s not going to change, because they don’t wanna change. The old line about Treason never prospers, why? Because for it to prosper, none dare call it treason.
Let’s pretend for a moment that it’s true- nothing bad has happened as a result of leaking information- just good things. The Press is the cowboy with the White hat, keeping our America pure and honest.
If I do that and pretend, then I’ll start pretending the UN will protect my family and my sisters from being raped by their peacekeepers. I don’t wanna do that now. It is the duty of the Democrats to acquire power, by whatever means available and regardless of how many dies. This was true in the time of WWII and Reconstruction, and it is true now. The Democrats don’t know what their duty is, power takes its place for them.
The ACLU is already using the Information act to try and declassify stuff, like AB uGhraib pictures, or something. They got it. It probably won’t work for secret prisons, because so long as they have leakers, they don’t need to go through the tedium of “official channels”. Power is gotten more directly and easier through unofficial means than official ones.
probligo,
NZ’s approach is interesting. Over here, we have the Freedom of Information Act, but it doesn’t exactly “turn the system on its head” like yours does. Yes, we can file FOIA requests for various information – but I don’t think the Gov is obligated either to grant the requests or to provide detailed explanations.
I’m not a FOIA expert. Anybody out there know how the Act might apply to cases like the secret prison business?
I guess we could just ask the spooks themselves: http://www.foia.cia.gov/
I don’t buy the whole “Well, nothing really has happened as a result of leaking information, so therefore it isn’t bad” meme. Let’s pretend for a moment that it’s true- nothing bad has happened as a result of leaking information- just good things. The Press is the cowboy with the White hat, keeping our America pure and honest. It still is wrong to leak classified information without first going through proper channels. It is a breach of duty for one. As a result of which, less and less information will be shared within agencies making it far more difficult for people to do their job in the future. It would create a very untrusting environment within these agencies, and that is extremely counterproductive. But no, we need a body count first before we’ll decide of a leaker can reveal information on his own discretion.
The Unknown Holmes
Sorry to have to keep bursting your bubble on the Bin Laden satellite phone story but it just isn’t true, as you tell it.
I’ve never heard the Libya spy story before, would you mind posting some sources?
In the article about cell phone sales, I didn’t see any mention of a leak (maybe that was in the “meta-topic” again). It’s plausible that people making illicit phone calls could figure out on their own that disposable cell phones are harder to trace. It’s not like the fact of wiretapping itself was leaked.
Anonymous. Your points about the costs of revealing secrets are interesting.
But you apparently are not aware that, for many on the left and in the MSM, those are not bugs. Those are features.
One of the most interesting battles surrounding the British Official Secrets Act is the fracas over various versions of the story of an SAS patrol during the First Gulf War published by various participants and observers. The first book was Called Bravo Two Zero by Andy McNab, the leader of the patrol. This book triggered other books – see the Wikipedia entry for Bravo Two Zero – but it was the final account, Soldier Five by a New Zealand member of the patrol, that got the most pressure to stop publication. After reading all of the books I can see no reason why – other than bloody mindedness – the Brits made such a massive legal effort to stop publication. It took years and a crusading NZ lawyer working pro bono to get the thing to press. I think there should be secrets and credible punishment for leaking them, but give bureaucrats (or anyone else) too much power and they tend to abuse it – as Lord Acton pointed out some time ago.
Great comment Anon, some of the same points I raised in a comment on part 1.
For another example of how a leak harmed us:
linkto:http://abcnews.go.com/WNT/Investigation/story?id=1499905
“Jan. 12, 2006 – Federal agents have launched an investigation into a surge in the purchase of large quantities of disposable cell phones by individuals from the Middle East and Pakistan, ABC News has learned.”
This shortly after the wiretapping leak broke.
It is easy to tell here in the comments who now has or has had a security clearance in the past. I see no moral question here either.
CWO3
Neo, this has been an interesting and somewhat revealing series and I thank you.
I have no desire to get into the politics that underlie all of this debate, and particularly McCarthy. I want to give you a brief idea of how this process works in NZ. First please understand one very fundamental difference between US and NZ government structures. It is that political government and the “civil service” (bureaucracy) are independent. They meet through four different officers — State Services Commissioner, Auditor General, Ombudsman, Chief Justice. Irrespective of who is in power, the same people run the beauracracy.
If you want to read all of the “rules” that govern NZ’s government as a political process then try and wade though this – the “Cabinet Manual”. The piece that applies here is this…
TOWARDS MORE OPEN GOVERNMENT
Over recent decades the processes of government have become more open. Notably, in 1982 the Official Information Act reversed the basic principle of the Official Secrets Act 1951: the principle now is that official information is to be made available to those seeking it unless there is good reason for withholding it. Those reasons relate to public interest such as the national security and law enforcement, and to private interests such as confidences and privacy. Underlying that principle are a number of purposes, including enabling the more effective participation of the people of New Zealand in the making and administration of laws and policies, and promoting the accountability of Ministers of the Crown and officials, with the consequence of enhancing respect for the law and promoting the good government of New Zealand.
Essentially, the process has been turned on its ear in NZ. Rather than deciding when and where information might be released it may be requested (even down to copies of all emails sent by the Minister of Trade to the Chief Executive ).
As you can see, the Official Secrets Act no longer exists. In its place anyone, from a Member of Parliament down to the lowly probligo can request information of the government. The principle is that if access to a specific document is refused, then (eventually) the Government has to front up and say why. Eventually, that reason is written into the records of Parliament. If I get told that the PM’s salary is “secret” (which it is not at all), there are a number of avenues that I can follow not least of which is suggesting to a Member of Her Majesty’s Loyal Opposition (that would be your Democrats) that he or she might like to see if they can get an answer. You can bet your boots that a “no” response would lead to questions that would ultimately be answered.
It is not by any means a perfect system. Mostly it works.
Most importantly it places the responsibility squarely on the shoulders of those who should bear it…..
The Government.
Folks,
This is not a question of morality and high principle. Security is there for the protection of two groups – the American people and for those that assist us. When you get a clearance, you sign a non-disclosure agreement – which means that you promise that you will not release information in any unauthorized manner, period. We have Inspector Generals available for those that are concerned about the legality of the actions being taken. I have yet to see a problem that can’t be addressed internally. If you go to the press, then have the honesty to take the consequences. Anything else is cowardice – or simply a criminal activity.
Remember, intelligence is gaining secrets by secret means to protect our national security. Disclosure means that we are placed at risk in a dangerous world. If a Top Secret document is released, that means that it will “cause grave damage to US interests, and will place sources (people) and methods (technology) at grave risk.” Do leakers take responsibility for the havoc they create? Here are some examples of the price we have paid for this kind of leaking and reporting:
In the 1980s, one of our lead newspapers (WashPost or NYT) exposed we had a spy ring in Libya, and all the Libyans that were assisting us were killed. Other US newspapers, evidently quoting a US Senator, revealed that the US was tracking Osama bin Ladin by his satellite phone in 1998, and he promptly never used it again. We lost him, and I’m sure we would really like to know where he is now. Actually, about five thousand dead Americans would really like to know – who will answer them?
When an intelligence source is compromised, that means that either it was killed or rendered useless – often at the cost of billions to the US taxpayer – or more dangerously, it then becomes a conduit for false information to be fed to us. A former Soviet agent I had the pleasure of listening to was astonished that our newspapers were willing to publish what most countries would consider state secrets – for the purpose of profit or political gain. Our press made his job immeasurably easier – and they continue to do so today.
We continue to live in times where there are those that are dedicated to the destruction of our nation and way of life. For those that feel that the real threat is from the US government, and not the Islamofascists, have a close encounter with reality. We have real enemies that are really dedicated to our destruction.
The unauthorized release of intelligence information is a criminal offense. This isn’t juvenile “questioning authority” – this is truly a life and death issue.
I’m wondering what the Gov’s formal ethics training has to say about situations like this. Or the CIA’s, if their’s is significantly different.
In my industry, we have fairly strict guidelines to follow, and they’re spelled out for us when we come on board and at least once a year after that. There are also procedures to follow – chain of command stuff. There’s also a separate ethics division for us go to if our managers are implicated in whatever it is we’re worried about. I think if you decide to ignore the processes and resources the company provides, and go public or to another company with your issues, you’re pretty much beyond the pale. Good luck.
I don’t know what the CIA’s got. Whatever it is, it looks as if it might be broken.
It will be interesting, if and when the whole McCarthy story comes ou, to see exactly what steps she took before deciding to go public. Until then, it’s hard to judge her with certainty.
Maybe this incident – and the Plame case – will inspire the Feds to expand or improve their ethical “safety net” so people won’t feel they have to go to extremes like McCarthy did.
If McCarthy (the alleged leaker) indeed released national security or classified information, she should be held accountable. For one thing McCarthy’s motive was not the good of the nation, but the good of her liberal Democratic Party affiliation. Her reasoning is criminal and needs to be prosecuted.gz
You may be looking for this:
What to do, what to do…
Well, for a start somebody should definitely kick Spanky’s ass – pour l’encouragement les autres or something like that.
(He knows I’m kidding – I hope…)
I think we should take insta’s advice on this aspect, and sick the lawyers on them. If a military person has his operation busted because the darkheads back in state leaked his stuff, then he should sue them for like millions.
The MilTech and the Admin has to DeCLASSIFY the information, of course, since it will be out in court, but they should already be doing that.
If civilian lawyers owe a duty of confidentiality, I don’t see why those in charge of government secrets should not carry a similar burden. A lawyer may not simply start publishing his client’s matters simply on conscience.
Prosecute them. There are provisions in place for whistle-blowers and avenues open for anyone to alert authorities to suspected criminal conduct and malfeasance. One person’s moral and political code that prompts him/her to disclose classified information could cost the lives of people, very easily.
One of the reasons the Democrats are liars is because their behavior is inconsistent with their stated positions. If they believe leaks are good in making government honest. Then Dick Cheney fullfilled that requirement by providing the public with information on Plame’s husband and on Plame’s manipulation of the system in getting her husband appointed as ambassador. It also sheds information on the lies by Plame’s husband, which is the purported purpose of leaks, to reveal the truth.
Yet the Democrats seek to exorciate Dick and whoever “outed” Plame. They don’t say leaked, because only Democrats can leak, anyone else leaking is destroying people’s careers. You can’t really take the Democrats at their word, because they’re a bunch of hypocrites. And they know it. Which makes them all the more efficient, because no good propagandist believes in his own propaganda. Like reporters, there’s a certain objectivity required.
The Democrats will turn it around by saying that republicans are fighting leaks but that they (repubs) leak classified information as well. The difference is something Democrats won’t admit. Republicans adhere to the Constitution and use Constitutional means of defending it, like declassifying information. The Democrats leak by using illegal means they wouldn’t normally have under the Constitution. By making it about the Republicans validating leaking, the Democrats hide their own incompetency and subversiveness, which is the entire idea behind the camouflage abilities of propaganda and insurgency. Hide your abilities and intentions, for as long as possible, while taking advantage of the enemy’s weaknesses.
The Republican’s weakness is that they adhere to the Constitution, and the Democrats will use that to its fullest extent in leaking and talking about leaks and national security. What it means really is that the Democrats know exactly what the Republicans can and cannot do. The Republicans do not know what the Demos can or cannot do, because the Demos don’t use legal means. So how do you make illegal things that you don’t know will occur? Like McCain and Feingold, there’s a lot of unintended consequences to legislation.
How do other countries with a tradition of a free press deal with the situation? Some punish security violations far more stringently. Britain, for example, has a statute called the National Secrets Act, which establishes penalties not only for the leaker, but for the press publishing the information. And there is no discretion given to the leaker or the press on such matters:
As I suspected, Britain does have more draconian measures. I get that picture from reading Mellanie Phillips, a Brit blogger. This sheds some light on why that guy in Blair’s cabinet committed suicide after a “leak” was traced to him. A lot of stress, it seems.
I’m not so much worried about national security as I am about the setting up of a Fourth Branch of government, beholden to no one. In this case, the solution is much worse than the problem it solves. Because if the press tries to solve government corruption, the press becomes an unaccounted branch of the government, and then what happens? The Constitution was designed to balance the tripods of Executive, legislative, and judicial. Who’s going to balance the branch of Government called the Press?
What happens is usually what is going on now, except a lot worse. It’s only beginning, and the WoT is only beginning as well.
National security problems is a short term problem in this case, what is worse is the overall damage to the Republic by the melding of some freaking of nature between the press and the judiciary, both which are only beginning to be shown to be unaccountable at all. Emminent Domain, national security leaks, these are the cancerous tumours growing within the Republic. And it’s only a matter of time before it becomes too late to save the patient without killing the patient.
We talk about civil war in Iraq because of repressed situations, but we have the same thing here in America. Branches of government are becoming unbalanced. New branches of government are sprouting up like the press. And it only depends upon how well designed the Constitution is and the wisdom of the American people and their duly elected leaders (immigration), that will determine how long this house of cards can remain balanced.
If it was only about national security, then it would only be a short term problem, like the espionage efforts by the Soviets in the Cold War. Short, but perhaps lethal. Long term problems are worse, because they are most definitely lethal, and you can’t ignore them and wait for them to go away like the Soviets. Cancer doesn’t go away.
Why should Republicans obey the law if Democrats won’t?
Because the Republicans, for good or evil, believe in the Constitution and will not violate the Constitution to save it.
Principles are annoying little things, but it’s the only good game in town.
The only thing worse than making promises you can’t break, is not making any promises any at all.
You can get a new “Question Authority” sticker here.
If no Democrat is ever punished for breaking the law and leaking classified information, then better try to find a sticker that says “Anything Goes!” Why should Republicans obey the law if Democrats won’t?
I have a “Question Authority” sticker on my toolbox, but The Company bought us all some standardized boxes chock full of shiny new tools…and told us to take our toolboxes home.
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