Transparency Needed To Control Leaks

The furor over the New York Times and other newspapers’ publication of national security secrets disguises a larger problem: the media and government knowingly collude in leaking secret information. There is a federal law against leaking communications intelligence (U.S. Code Title 18, Part I, Chapter 37, Paragraph 798) that has not been enforced. For those who wonder why there are not prosecutions of leakers of national security programs, this wider collusion between the media and government officials may be partly responsible.

To expect the media to refrain from publishing leaks is futile, maybe even hypocritical. The pressure to “scoop” outweighs responsibility for national security. This is compounded by some who seek from within to undermine and reporters who seek out selective scoops that injure this administration.

However, leaking is a two-edged sword, as the administration and those close to it employ leaks to get their side of stories published or to lead discussion of selected issues. The revelation of the secret briefing by General Casey about the proposed draw down schedule of U.S. troops in Iraq, subject to events and negotiations with the Iraqi government, may be aimed at defusing Democrat calls for setting a rigid timetable.

Special Prosecutor Fitzgerald did not file charges of illegal leaking regarding the revelation of Valerie Plame’s travel agency for her husband Joe Wilson, whose op-ed lies about his findings in his Niger trip undermined one of the administration’s justifications for going into Iraq. The Special Prosecutor, instead, resorted to torturous perjury charges about leaking. Still, the fact remains that either a high-ranking administration member or a lower level government source leaked information that led reporters to publicize her role.

Some in Congress clamor for wider and more detailed briefings by the administration about secret programs. Yet, some in Congress think little of leaking selective details or impressions from those briefings. This adds to the hesitancy by the administration over revealing sensitive information even to our elected representatives for their informed oversight.

This issue of leaks, and pseudo-leaks, extends beyond the formal government, either feeding or confusing the media’s presentation of government programs and policies. Ryan Lizza wrote in The New Republic last year,

...how much reporters now rely on GOP operatives outside the White House to tell them what’s going on inside of it….This is partly the White House’s own fault. The Bush administration has promoted an explosion in the use of “sources close to the White House”…This White House’s stinginess with information has sent reporters scurrying to find knowledgeable outsiders, even if those sources don’t always know what they’re talking about. “They fill a vacuum,” says Richard Wolfe, who covers the White House for Newsweek.

One can point to a long tradition of presidents and senior administration officials “speaking off the record” to reporters on sensitive issues. However, one can also point out that self-restraint by the media on matters of national security was greater in previous times. This means of communication to further the public’s understanding of issues and to build mutual trust was useful to the government, to reporters, and the public.

However, that time has passed. The media no longer respects national security. Government officials have good reason to no longer trust the media. Both are drawn deeper into mutual animosity, the media revealing sensitive secrets or the government seeking to obscure programs and policies.

In both cases, speculation is increased, not decreased. Public trust in the media and in government suffers.

This is not to argue moral or professional equivalence, or to measure relative culpability. It does argue there is a serious problem that needs to be addressed seriously.

The soundness and future of government leadership, regardless of political party in control, and the public reliance upon and commercial viability of our major media are in serious jeopardy, and the biggest loser is the American people.

What is required is new legislation that broadens the existing U.S. Code to include all matters of national security, applicable to all present and former government employees and officials, Congressional members and staff, and the media, coupled with confidential prior judicial consideration and enforcement mechanisms, and strict prosecution of those not abiding.

If this or any administration has something worth keeping secret, it should be willing to seek prosecution of its own employees who break that trust. If Congress needs more information to perform its representative functions, it must be willing to be policed for those who break trust. If media are to be a “fourth estate” instead of a “fifth column,” it must respect judged national security and be willing to be restrained.

Britain’s Official Secrets Act indicates that such a broader law does not destroy democracy. The details of ours will be different, but the broad outlines are there.

A new paradigm of government-media-public interaction should not stop there, with more secrecy. It must simultaneously entail more openness and transparency by administrations. Justified or excessive paranoia by an administration leads to over-classification. A legislated procedure to both protect and prosecute excessive revealing of legitimate secrets, should encourage more, not less, attributed openness by government officials.

The pressure for public disclosure of government programs and policies will not cease. The government must speak “on the record” more openly about its policies and programs. Sure, critics will harp on this or that matter, but at least the lines of information and responsibility will be clearer to the public.

As a model, for example, the administration spoke openly about its extensive efforts to “follow the money” of terrorist operations and supporters. The Washington Post editorially acknowledged this legal pursuit. The New York Times and a few others, however, saw fit to reveal the specific methods, despite pleas from the administration not to reveal to our enemies our specific means that they can then evade. The line of national security responsible behavior couldn’t be clearer.

Without arguing for prior restraint over publication, it will then be clearer that New York Times editor Bill Keller is not the sole judge of national security, that there are more important issues than his paper’s circulation or agenda, and that publication of national security secrets judged as such will be prosecuted.

The “public interest” that Mr. Keller pleads will be better served by more transparency in government and more legislated restraint over those whose self-interest exceeds their national interest.