PERSONAL VIEWS ON THE INADEQUACY OF EXISTING LAWS CONCERNING UNAUTHORIZED DISCL

Created: 4/24/2002

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Korcign Denial and Deception CoiiuniHee George Biuh Center for Intelligence,!

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FOR:

VIA:

FROM:

SUBJECT:

REFERENCE:

of Justice Interagency Task Force on Unauthorized Disclosures

Office of General Counsel

JVice Chairman. FDDC

Personal Views on the Inadequacy of Existing Laws Concerning Unauthorized Disclosures, and Recommendations for New Ones

Uaks: How Unauthorized Media Disclosures of US Classified Intelligence Damage Sources and Methods

This note is intended lo supplement (he recent paper produced by the Foreign Denial and Deception Committee on leaks. It aims to address implications for legal reforms implied by tlie findings of that study. The thesis is straight forward: New laws addressing leaks of classified intelligence are urgently needed.

Thereot of classified information in the press these days, but this note, like the paper, is only concerned with classified intelligence information. Even more narrowly, its focus is confined to intelligence sources and methods, namely, how intelligence is secretly collected and analyzed.

Lessons From the Past: Doing business-as-usualrescription Tor failure

Do we need new laws to address the issue of unauthorized disclosures of classified intelligence information in the media? Answering this question requires some appreciation for the past experience of consistent failure. To date, the most authoritative study addressing unauthorized disclosures is2 "Willard Report" (after its chairman Richard K. Willard, Deputy Assistant Attorney General. Report of the Interdepartmental Group on Unauthorized Disclosures of Classified Information,repared for thet concludes;

"In summary, past experience with leak investigations has been largely unsuccessful and uniformly frustrating for allhis whole system has been so ineffectual as to perpetuate the notion that the government can do nothing lo stop theEmphasis added).

VEI ;' RELEA

The recommendations of the Willard Report for legal correctives resulted in proposed legislationllhough supported by OMB and Ihc Administration, tlie Intelligence Community later withdrew the recommended draft legislation dueerceived lack of support.

Twelve years later, respondingequest from the Assistant lo the President for National Security Affairs, tlie National Counterintelligence Policy Board completed another study and reported no discernible change. (Report to ihe NSC on (Jnaulhorized Media Leak Disclosures,. The report explained the continuing failureesult of two key factors;

ack of political will to deal firmly and consistently with unauthorized executive branch and Congressional leakers. Unsuccessful government efforts to prevent unauthorized disclosures were attributed largelyack of political support.

The use of unauthorized disclosuresehicle to influence policy. (Citing7 Tower Commission Iran/ContraSelective leaking has evolved lo (he point that

itrincipal means of waging bureaucratic warfarerimary tool in the process of policy formulation and development inEmphasis in the original)

Given die palpable history of failure in protecting classified intelligence information from pressgiven their epidemic proportions and tlie deleterious consequences they wreak in counlermcasures to US collectionis fair to question whether past failed approaches will work today.

There has nevereneral criminal penalty for the unauthorized disclosure of classified intelligence information to the press. Although intelligence leaks can technically be prosecuted under espionageingle case ever has (US v.. Given that literally thousands of press leaks have occurred in recentserious and virtually all withoutis clear that current laws do not provide an effective deterrent to leakers or to journalists and their media outlets dial knowingly publish classified intelligence.

A newfrom the failed past. If current trends in unauthorized disclosures arc not reversed, such leaks will continue to compromise key sources and methods, and thereby seriously constrain US intelligence capabilities for the present and the future. Since so much now dependsiable approach to the legal issues that have hamstrung past actions to address this debilitating problem, wc need to understand some myths that have impeded past actions.

Popular Legal Myths about Unauthorized Disclosures of Intelligence

he current laws arc adequate. Despiteintelligence leaks in recent years,ingle violatoras ever been prosecuted. Willard's harsh judgment2 that "the whole system is so ineffectual as to perpetuate tlie notion that tlie government can do nothing to stop leaks" is even more true today than when he wrote it. Morison notwithstanding, thentervening years have seeniscernible abatement in

leaks, nor an improvement in governmental enforcement on this issue. If anydiing, die problem is getting worse.

Why is this the case? The obvious answer is (hat the laws are only marginally applicable to leaks, and,ractical matter, unenforceable in this application. The sia(ute under which Morison was) applies directly to espionage, buteal stretch for press leaks; and Morison sold the information to Jane's Defence Weekly. All agree (hat the government has always lacked Ihe investigative ability to identify governmentas the National Counterintelligence Policy Board Study notes, also lacks the polilical will to bring any case forward.ase risks media cries of "chilling effect" on press discussions, and perhaps would even engender fear among federal employees. However, for press leaks, these laws are irrelevant. Defenders of the legal status quo needxplain the chasm between damaging leaks and (he crippling lack ofhow present laws can successfully address this issue now when they never havehink they cannot evenlausible argument in (he face of (he evidence at hand.

The lack of enforcementelf Ihe best indicator of Ihe deficiencies in the law. Current law provides no appreciable deterrent to leakers or to (heir press publicists. Some journalists even demonstrate contempt for the law, and mock the government's inabilityontrol leaks:

"Wc believe in stories that make you say 'holy shit' when you read them, said Bill Gertz of The Washington Times,lattering profile of him that appeared in the conservative

Weeklythe past couple of years, Mr. Gertz has written more stories

based on classified government documents (ban you cannfuriating Clinton Administration officials andockery of official classificationSteven Aftcrgood, in Secrecy in Government Bulletin,

Mockery is correct Journalists who traffic in classified information can proceed withthat they can publish this information at will, and do so without penalty; andsuppliers seem not to be deterred either. Laws that invite mockery because (heyineffectual have lost whatever usefulness they might havo had Worse, diey areThey leave the impression of their adequacy while keepingparalyzed to stem die hemorrhage of classified sources and methods appearingfrequency in (he US

eaks really don't do muchhe genealogy of (his view (races to the publication of the Pentagon Papers. After much government carping about all die damage (hat those Top Secret revelations in the press would do to US nalional security, few today would claim that any damage was done at all. And certainly none to intelligence sources and methods. This view is given even greater credence by another popular myth that (he government over-classifies everything, and classifies way too much. This seduction hasreed among anti-secrecy proponents such as the National Security Archive and Federation of American Scientists. Publicly, this view is accepted uncritically, and never contested. Nor refuted. In fact, as die recent FDDC classified study of media leaks has convincingly shown, leaks doreat deal

of harm to intelligence effectiveness against priority issues including terrorism. But intelligence professionals also appreciate, and are much frustrated by. the fact that the best arguments for stopping intelligence leaks simply cannot be made in the press or in public forums, because of the paradoxical need toinformation.

ntelligence is adequately protected as "national defensehis myth highlights the added legal difficulties of showing that intelligence sources and methods need also to be proven as "national defense" information to warrant protection under, and related laws. In truth, intelligence may or may not be so defined, hut often, intelligence issues do not pertain directly to the national defense, and the added legal burden of meeting this defense requirement imposes still another pointless obstacle to legal remedies. Presently, the burden of proof is on the government to show that intelligence information relates directly to national defense, and further, that the person compromising it knew beforehand that its disclosure could harm the national defense. This burden is too high and off the mark. What intelligence information needseparate, discrete, legal identification, independently of national defense. This wouldegally-protected category of intelligence information that docs not now exist. Other categories lhat are afforded effective protection include information on banking, crop estimates, taxes, and consumer credit. Surely intelligence sources and methods deserve as much. Sources and methods of intelligence collection arc intrinsically important to the Nation's security, and intrinsically worthy of separate statutory protection. In removing impediments, this distinction would thusajor step forward in makingand

ublic trials for secret issues arc necessary. This bedeviling limitation has hamstrung the government in prosecuting espionageservesajor inhibitor even in cases of unauthorized disclosures in the media. (It alsoompelling rationale for military tribunals for terrorist cases involving foreignhile the Classified Information Procedures Act (CIPA) affords good protection in pre-trial protection and "in camera" procedures, the perennial risk of exposing sensitive information in open court proceedings often deters the government from taking action. For example, an investigationajor disclosure of highly classified information about sensitive collection activities might never becould soon beto acute worries over further revelations about sources and methods. The reason? Intelligence agencies justifiably fear additional exposures of even more sensitive information in legal proceedings that would follow.esult, significant leaks investigations always face the risk of being aborted after start-up. or are not started at all. This extraordinarys that Ihe greater theintrinsic importance to nationalthe information compromised in the media, the greater the incentive for governmental inaction. Poor laws that cannot adequately safeguard classified intelligence information in judicial proceedings guarantee continued governmentalcontinued media compromises of uniquely valuable sources and methods without penalty.

. -pumalists have every right to publish classifiedo not understand how this myth got started, and it certainly doesn't apply to all journalists. But it applies to some. Unhappily, professional journalists must count within theirew colleagues who traffic

heavily in classifiedvolume, and often highly classified. When this minority of journalists arrogate to themselves the presumptive right to publish classified information in US newspapers and books, and on the Internet, it is fair to ask where they got this nghi. USclassified information is produced by fully lawful procedures in the Executive Branch, and is subject to oversight by Ihe Legislative Branch. No authorization to overturn this system extends to the Fourth Estate. But some journalists presume this "right" and exercise it presumptively on behalf uf the Americanto Ihe detriment of the population they claim to serve when intelligence capabilities are weakenedesult.

These journalists either assume that existing law doesn't apply to them, or il il docs (hat ilenforced, or thai (hoy are not breaking any laws atew arrogantand careers benefit from exploiting classified intelligence forclassified intelligence as if it didn't deserve any protection at all. But their unquestionedright to do this has yet to he established in taw. In practice, their actions subvertthat fully intend to protect Hk intelligence (hey compromise in the press.classified intelligence, no journalist can convincinglyonstitutional righiso. Any journalist's "right" to publish information should not extend (oBut this legal argument remains to be made or

irst Amendment protections prevent more restrictive legislation. For the most part.Identifying and punishing government leakers should not invite constitutional Leaking classified intelligence is no one's legal right, and publishing il inhas not been demonstrated as the media's constitutionally protected right

Still, the inherent tension between First Amendment nghts and the government's interest in protecting national socunty is dynamic, and may never be solved "once and foru( theurrent balance so favors First Amendment rights thai legitimate national security interests areoften superseded. This seems certainly (he case with unauthorized media disclosures thai :omproinise intelligence effectiveness. Here we should entertainotential legal nbalance byime-tested democratic principle enunciated by the preeminent ihilosopher of liberty. John Stuart Mill:

he only purpose for which power can rightfully he exercised over anya civilized com muni (y, agalnsl his will. Is to prevent harm lon

Under (he "harmexample, yelling'heater when ihcrc isvariely of exceptions tu free speech are well established in American law such as obscenity, defamation, breach of peace, "fightingnd sedition. To this list we should add the compromise of US intelligence sources and methods required in the service of the Nation's security. Government leakers with authorized access to (he classified information they pass i;

journalists,inysgregious cases/also the journalists who traffic in classified

be legacythe sources and methods they expose that will

help foreign adversaries degrade the effectiveness of US intelligence, and thereby, further jeopardize US national security. Byean:

a coven intelligence officeroreign agent's identily is compromised in the media, thus risking exposure (hat may end in imprisonment or death.

multiple sources of fragile collection, including technical sensors, arc compromised in (he media, thereby incurring reducedexample, against priority targets such as Usama Bin Ladin oranalysis or warning through weakened collection.

When extremely sensitive, highly classified, and cosdy collection programs are compromised in the media, resulting in foreign countermeasurcs that significantly reduce (he program's cost-effectiveness.

When unauthorized disclosures have so impaired intelligence on key national issues such as terrorism or proliferation of weapons of mass destruction that US policymakers are deprived of valuableintelligenceotherwise available, but essential to sound decisions and policies affecting US national security.

Attributesood Law

The scope and seriousness of Ihe inlelligence leaks problem argue strongly for urgcnl attention to new law thai can successfully stem die hemorrhage of classified intelligence that regularly appears in (he media. Wepecific statute that will deter leaks, and that will punish those who compromise classified intelligence that helps foreign adversaries defeat US sources and methods. What attributes shouldaw have? It should:

Unambiguously criminalize unauthorized disclosures of classified intelligence

Hold government leakers accountable for providing classified intelligenceersons who arc not authorized accesshat information.

Define intelligencespecifically sources andfrom defense information,rotected category of information less vulnerablexposure under First Amendment rights.

Provide betler protectionensitive and classified intelligence information in court trials and olher judicial proceedings than is presently afforded through CIPA.

Should journalists have accountability? Much or all of the above attributes can be accomplished withoui inviting serious debate over First Amendment issues. More contro.aw would also hold unclearedjournalists, writers.

publishing companies, media networks, and websites who traffic in classified information-accountable for damaging disclosures. Specifically, media should be held responsible for providing mass publicity to significant intelligence information they know to be classified, and whose exposure reduces US intelligence effectiveness by damaging sources and methods.

Present law already establishes such liability for media representatives who compromise the covered identities of US intelligence officers andSConlyattern of activities, notompromise that could or does lead to the imprisonment or death of an agent causedinglend also for compromises of SIGINTnder thesehave never been enforced against cases of unauthorizedof imagery and other technical intelligence are not covered. And no generalized provision exists that will impose penalties for the publication of intelligence inforTriation that leads to foreign countenneasures dial degrade, neutralize, or deceive US sources and methods of sensitive intelligence collection programs.

Consequences of inaction. Unless comprehensive measures arc taken to identify and hold leakers accountable for the significant, often irreversible, damage they inflict on vital US intelligence capabilities, and, by implication, the degraded support such weakened intelligence offers to policymakers and warfighlers, the damage will continue unabated. Conceivably, without some legally effective corrective action, the situation could even worsen. Under this scenario:

Policymakers, warfighlers, and military planners should expect lhal their intelligence on significant national security issues will be less accurate, complete, or timely than it would be without foreign countcrmcasures made possible by unauthorized disclosures.

American citizens should expect lhat timely warning of surprise attacks against the United Stales by terrorists or other hostile adversaries will be degraded because key collection activities have been rendered less effective through unbridled leaks.

US taxpayers should expect that their multi-billion dollar collection programs will be less cost-effective tiian Ihey would otherwise be if foreign adversaries were not learning how to neutralize such programs through extensive classified information readily available in open sources.

The alternative is better intelligence capabilities for Ihc United Stales. This can result from no added costs by merely better protecting tlie sources and methods we now have and those that are in the pipeline. Stemming press leaks will afford significantly better protection. Belterand enforcement of thesemake (his possible. Preseni laws preclude improvement.

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