'Official Secrets' Seepage

Article excerpt


In what has become a regular, but unfortunate practice, the New York Times has again published highly classified information - this time in an article describing U.S. intelligence activities undertaken to thwart the Iran's nuclear weapons development program. The Times attributed the information to current and former American officials, none of whom - of course - would speak on the record.

To simulate journalistic responsibility in publishing the information, the article says several details about the covert effort were omitted from the story because senior U.S. intelligence and administration officials had so requested - this to avoid harming continuing operations. Nevertheless, the revelations more than likely have caused the described intelligence operations to fail, which in turn increases the likelihood military action will eventually be necessary to prevent the Iranians from developing nuclear weapons. In short, the Times story graphically illustrates why disclosures of classified information cause grave damage to our national security interests - and in this case, threaten directly the safety of us all.

In other Western democracies (e.g., Canada and the United Kingdom) publishing a story including their classified information therein would be a violation of their Official Secrets Act and subject reporters and media management to criminal prosecution.

We have no such laws in the United States - even though the laws work very well in discouraging the media from publishing what they know to be classified information. However, the laws can also discourage the media from publishing what could - even inadvertently - be classified information. It is this aspect of official secrets laws that has argued against them in the United States - though there is no First Amendment protection for publishing classified information, whether claimed inadvertent or not.

Accordingly, and because of the persistent problem that modern-day U.S. administrations - Democratic and Republican - have had with damaging unauthorized disclosures of classified information, the fiscal 2001 Intelligence Authorization Act contained the following provision:

Whoever, being an officer or employee of the United States, a former or retired officer or employee of the United States, any other person with authorized access to classified information, or any other person formerly with authorized access to classified information, knowingly and willfully discloses, or attempts to disclose, any classified information acquired as a result of such person's authorized access to classified information to a person (other than an officer or employee of the United States) who is not authorized access to such classified information, knowing that the person is not authorized access to such classified information, shall be fined under this title, imprisoned not more than three years, or both.

This easily understood provision quickly obtained the bipartisan agreement of both houses of Congress and was also agreed to - specifically - by the Executive Office of President Clinton in a statement of administration policy.

After all, it was not - by any stretch of the imagination - an official secrets act, because it didn't apply criminal sanctions to the publishing of classified information. Rather, it applied criminal sanctions to United States officers or employees who disclosed the classified information to a person who is not authorized access to such classified information. …