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What Leaks Are Good Leaks?

For the first time, journalists and the feds are sharing ideas on use of classified data.

January 05, 2003|Jack Nelson | Jack Nelson, former Washington bureau chief of The Times, wrote a report on government secrecy while he was a fellow of the Shorenstein Center for Press, Politics and Public Policy at Harvard's Kennedy School of Government. Text of the report can be found at www.shorenstein

WASHINGTON — Tension between the federal government and the news media over official secrecy has existed throughout most of the country's history, but no president since Richard Nixon has been as secretive or as combative about leaks as George W. Bush. During the Bush administration, the number of documents stamped "secret" has soared. Actions to classify documents in fiscal 2001 increased by 44% over the previous year, to an astounding 33,020,887, according to the Information Security Oversight Office, a little-known agency that keeps track of security classification in both government and industry. At the same time, crackdowns on the unauthorized disclosure of classified information have been the most aggressive in decades, especially since Sept. 11 and the confrontation with Iraq.

Even before terrorist attacks on the World Trade Center and the Pentagon, the White House was predisposed to secrecy. For example, Vice President Dick Cheney has refused to disclose the names of those who consulted with his national energy task force. The administration has also issued an executive order to prevent access to records of former presidents, denied Congress access to routine government information and sought to limit its compliance with the federal Freedom of Information Act. Since Sept. 11, the administration has cracked down further, drastically restricting the media's ability to report on the war in Afghanistan and limiting coverage of proceedings involving suspected terrorists.

"Today's atmosphere of fear over war and terrorism has induced public officials to abandon this country's culture of openness and opt for secrecy as a way of ensuring safety and security," says Lucy A. Dalglish, executive director of the Reporters Committee for Freedom of the Press, which has released a 60-page report detailing the administration's numerous acts of secrecy since Sept. 11.

Meanwhile, the administration has followed tradition and leaked national security secrets to serve its own political or policy purposes. It has repeatedly leaked classified information to the media about plans for war with Iraq and to paint a positive picture about its war on terror.

But concern over leaks has become so acute that a group of media and government representatives has held periodic off-the-record sessions during the past year to discuss ways to protect the most sensitive national-security secrets without abridging the public's right to know. Senior officials from the Pentagon, Justice Department, Central Intelligence Agency, National Security Council and National Security Agency, along with journalists, have all participated in these unpublicized and unprecedented sessions.

The work of this unofficial group, known as the Dialogue, is one bright spot for press freedom in a government steeped in secrecy. It was started by Jeffrey H. Smith, a lawyer and former general counsel for the CIA, and Scott Armstrong, a former Washington Post reporter who is executive director of the Information Trust, a nonprofit that promotes openness in the U.S. and abroad.

Last October, the group helped to persuade the administration not to seek a tougher anti-leak law, which would have made the unauthorized disclosure of any classified information a crime, even if the information was harmless. Current law makes it difficult to prosecute leakers because the government must show an intent to aid a foreign power. The bill under consideration was similar to one passed by Congress in 2000 but vetoed by President Clinton. That bill would have made the unauthorized disclosure of any classified information a crime even if the information was harmless or had been erroneously classified.

But there are enough secrecy provisions in the USA Patriot Act and the Homeland Security Act to worry media and 1st Amendment watchdogs. For example, the Homeland Security Act provides an exemption from the Freedom of Information Act. In effect, says Armstrong, "the classification system under these acts could become an official secrets act that could be used to intimidate and punish leakers."

One of the Dialogue's most significant achievements has been to sensitize media and government representatives alike to the nuances of leaks. "National security leaders need to understand that some leaks are good for democracy and the country even though others are bad," says Smith. "The press needs to understand more about the sensitivity of national security leaks. Everybody understands you don't publish that the 82nd Airborne is planning to land somewhere, but not everyone understands that it's a national security problem to report that Osama bin Laden's cell phone calls have been intercepted."

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