Official Secrets


August 11, 2001



BOB GARFIELD: From WNYC in New York this is On the Media. I'm Bob Garfield.

BROOKE GLADSTONE: And I'm Brooke Gladstone. Currently in the nation's capital there is an argument brewing over a measure that would give the government sweeping authority to prosecute anyone who told its secrets. It began last fall when officials in the CIA and the FBI quietly worked a provision into the Intelligence Authorization Act that would make it a felony for federal employees to disclose classified information. Ultimately, but not without a fight, it was vetoed by President Clinton. Right now, free press advocates are battling it out with the intelligence community to stave off hearings on a similar measure. A few weeks ago on our program Daniel Ellsberg said such a measure would have made the publication of the Pentagon Papers impossible. He also said that the intelligence agencies have aimed the measure at a particular reporter and newspaper.

DANIEL ELLSBERG: If that is signed, then there will be a number of prosecutions. There won't be just two; there'll be two in the next month probably. They already have their eyes, I think, in the Washington Times, for example; they've been -act as almost dedicated to getting them.

BROOKE GLADSTONE:Daniel Ellsberg, probably the most famous leaker in U.S. history, said the anti-leak provision was meant to get the Washington Times. Of course what he told us later is that it was actually meant to get Bill Gertz who reports on national security issues for the Washington Times. Bill Gertz, is that true?

BILL GERTZ: Well that's what I've heard. It's been called the Anti-Gertz Leak Statute and [LAUGHTER] I was surprised that it was in fact vetoed by the president last year.

BROOKE GLADSTONE: Have you ever felt like you were compromising national security?

BILL GERTZ: I don't feel that way at all. There have been cases where we have withheld information or modified information at the request of the government, and there have been cases where we've ignored requests to do that. It's done on a case by case basis. From our standpoint as a news organization, if information comes our way and we were to withhold it, there is always the possibility that that information would come out in another news organization. So that's what we take into account when we look at these issues.

BROOKE GLADSTONE:When the Anti-Leak measure was passed by Congress last fall, did it affect your reporting in any way? Did you stop printing classified information?

BILL GERTZ: No, I, I would take issue with the characterization of "printing classified information." We report the news, and if that contains classified information, that's part of my job. Most of the information I get doesn't come with a stamp on it that says secret or top secret so it would be very hard to tell what's classified today. In fact the maxim is: if you classify everything, then nothing is classified, and I think that's kind of where the security classification system is today. There hasn't been any real effort to try and reform that. There's so much over-classification. You know, every year there's an office of government that puts out the amount of information that was classified in the previous years, and it's millions of documents -- every year!

BROOKE GLADSTONE: Daniel Ellsberg volunteered to come on this program again with you as a comrade in arms. Do you see that as an unlikely bedfellow?

BILL GERTZ: No! I don't. You know I think that he did what he did as an act of conscience, and as a newspaper reporter, I can-- clearly understand his motivations there. I think that that may have been a foundation for some of the reporting that I've been able to do.

BROOKE GLADSTONE:Don't you think it's a little ironic that the Clinton Administration with which you have probably nothing in common politically would veto this act and the expectation is that if it were to get to President Bush's desk with whom presumably you have more in common, he's more likely to sign it.

BILL GERTZ: I'm not sure that it's really politically viable for any politician today to be perceived as anti-press. The costs are just too great politically. So I can't see that even the Bush administration when they would sit down and discuss this issue can say that this would be actually a good thing.

BROOKE GLADSTONE: Well Bill Gertz, thank you very much!

BILL GERTZ: Well thank you!

BROOKE GLADSTONE:Bill Gertz is a defense and national security reporter for the Washington Times. Now I'd like to turn to former Washington Post reporter and founder of the National Security Archive, Scott Armstrong. Hello, Scott.

SCOTT ARMSTRONG: Hi, Brooke.

BROOKE GLADSTONE: And Jeff Smith who is the former general counsel of the CIA and a partner in the firm of Arnold & Porter. Thank you very much for being here.

JEFF SMITH: It's my pleasure.

BROOKE GLADSTONE: Scott Armstrong, what would be the impact of this new statute do you think?

SCOTT ARMSTRONG: Well, it, it's enormous, potentially, because it goes way beyond what-- what happened to Daniel Ellsberg, and it goes into the way the press fundamentally does its job. What was most pernicious about this legislation last year was it had a phrase in it that it was "not only things that are clearly marked as classified but things that the individual has reason to believe have been determined by appropriate authorities to be classified." Well that's almost anything. It means that the average national security reporter would be causing their sources to commit ten different felonies by lunchtime, and if they work after lunch, another ten! Former officials would be covered! All of the interviews that you hear where current officials are unwilling to speak on the record but some former official will come forward and make a position would now have to be cleared with the government in advance. It is a mandate for massive censorship.

BROOKE GLADSTONE:Opponents say the provision amounts to an official secrets act; it's a law common in countries without the First Amendment. Jeff Smith, do you think this is an official secrets act?

JEFF SMITH: Let me respond first of all that -- a point that has not been made. Leaks of classified information can be enormously harmful and potentially risk the lives of American servicemen and women.

BROOKE GLADSTONE: Could you give me a brief example of a specific instance in which national security was compromised by a leak?

JEFF SMITH:Well sadly, the only ones I -- this is a terrible thing to say because it's what the government always gets accused of -- the ones that I am personally familiar with occurred when I was general counsel at the CIA, and they remain classified. What I can say is that I remember at least one or two very specific instances in which information appeared in the media that disclosed information that was based on technical collection systems and when that information appeared, we lost that source. And the consequence was that American servicemen and women were put at much greater risk because we simply had much less idea what was going on on the other side of the line.

BROOKE GLADSTONE: But that kind of leak would be easy to prosecute under the current laws.

JEFF SMITH:The current statute requires that the individual know that it could cause injury, and I think certainly if we could identify the person who leaked it, I think there would be every effort to prosecute them. But having said that, every day some senior member of the administration talks to the press on background and that information is used. It's usually attributed to a source close to the administration or sources in the administration said today that -- and then people down the line from him or her feel somehow empowered to talk about that same information. That's probably good for democracy but bad for discipline, and the question is can you draw a line between that information that the government decides is okay to make public in the form of an authorized backgrounder and that information which the government decides is somehow not proper to be disclosed to the American people. And then finally, is that line if crossed something that should be treated as a criminal violation.

BROOKE GLADSTONE: Scott, what do you think? Would a new anti-leak provision address this problem of discipline in the executive branch?

SCOTT ARMSTRONG:Well I think one of two things'll happen; either it won't be enforced at all - in which you'll have one more criminalization of something that doesn't have any teeth and will even reduce the limited respect people have for classification rules at present; or else it'll be done selectively when it's convenient, when it's-- a leak - and it -they'll, they'll be prosecuting the person who said that the strategic defense initiative doesn't work -- that it's a bad investment --that's the guy who will end up getting in difficulty, and they won't be prosecuting the guy who's given the material over the transom to Bill Gertz probably because they haven't caught him! So the, the question is: if you want to limit the amount of damage, it's easier to limit the amount of damage by identifying what you consider to be really harmful; trying to protect that as best you can; and then having a reasonable dialogue with the, with the press rather than creating something -- it's not just a blunt instrument -- it's a sweeping --I mean it's a vacuum cleaner effect. It could lead to some very bizarre outcomes.

BROOKE GLADSTONE: Scott Armstrong thank you very much!

SCOTT ARMSTRONG: Thank you, Brooke. Appreciate it.

BROOKE GLADSTONE:Scott Armstrong is a former Washington Post reporter and founder of the National Security Archives which indexes and makes available declassified documents. And Jeff Smith, thanks to you!

JEFF SMITH: Been my pleasure. This is a difficult issue, and I commend you for calling it to people's attention.

BROOKE GLADSTONE: Jeff Smith is a former CIA general counsel and a senior partner at the law firm of Arnold & Porter in Washington, DC. [MUSIC]