Letters to the Editor
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First Amendment absolutism is a lost cause
Yes, there is information whose dissemination should land the disseminators in jail for a long time, no matter who they are : leakers within the government, journalists, editors or simple private individuals.
What people who care about good government and democracy should care about is not "defending" the First Amendment under all circumstances (and I really resent the idea that "journalists" are somehow different from mere mortals) but addressing the constant abuse of classification.
The law should put without any ambiguity the burden of proof on the government and have very high standards. Nearly every aspect of the business of governing is public business and should be public. Classification should be deemed abusive unless proven otherwise.
Currently, something is classified essentially because the government says so and judges nearly never challenge those classifications. Too bad because my hunch is that probably 99% of what is classified today has no reason whatsoever to be classified : perfectly mundane information shoved under the rug just for convenience. Of the remaining 1%, probably 95% is classified for very weak or dishonest reasons. Another 4% is classified for reasons that have ceased to exist a long time ago. And may be a small 1%, 1/10,000th of the overall mass of classified information actually deserves secrecy. The first question a judge confronted with this type of cases should ask is “Why is it classified ?”. No “Because we say so”. No “Because it’s convenient”. No “Because it’s embarrassing”. No “Trust us”.
My criteria would be that the government should be compelled to bring a positive, specific and explicit proof that classification was appropriate, that actual harm was caused by the dissemination and that there was no credible need for the public to know.
Also, it should be illegal in its own right to use classification to conceal likely illegal actions or actions contrary to common decency or shocking to the conscience, unless specifically provisioned by the law. For instance, the law could explicitly authorize and duly supervise certain forms of actions for CIA foreign operations - corruption, blackmail, kidnapping, even the occasional and duly authorized murder - that would be grossly illegal otherwise. Why not ? But put a "Secret" stamp on documentary evidences of a crime and go to jail.
What would be your idea of proper handling of classification ? Feel free to add, edit and retrench your own criteria and lobby your congressmen.
I like mine because it exposes two recent public cases - the NSA illegal wiretaps and the Plame affair - in glaring contrast.
AFAIK, the NY Times did not publish any technical element about the NSA wiretaps that would compromise future use of critical spying techniques. All the NY Times did was to reveal 1) the existence of an interception program and 2) that the conditions of its operation are grossly illegal. Point 1) is obvious. Most American would expect that government agencies are aggressively spying on Al Qaeda, including and first of all inside the country. News that the government sits on its butt and let Al Qaeda chat and sing its heart content would big time news and a real cause for outrage. So the notion that any harm was cause by publishing point 1) is laughable and would be laughed out of court by any half awake judge. Point 2), in fact, disqualifies the classification. Not only no harm is done but the non-publication would create harm by allowing evidence of likely illegal acts to remain unknown from the public. If an interception is performed outside of the letter or the law, the presumption of illegality is reasonable and so is the presumption that the public should know about it.
Outing Valerie Plame is a very different story. Knowing her specific identity is of negligible value to the public. It’s fairly telling it was published by a columnist and not by a news reporter. For his nepotism smear [ Ah, a week in Lagos on the CIA’s tab, what a treat ! ], Novak and his sources could have simply described her as a person very close to Wilson and leave it at that. On the other hand, revealing Plame’s identity and hence her NOC status caused obvious harm, from the immediate endangerment of Plame’s networks abroad to irreparable damage to the CIA credibility in its efforts to recruit foreign sources. Also, for some people in the chain of dissemination, the dissemination was very likely intentional as the identity of a NOC agent is not the type of information you simply happen to stumble upon. It took a positive and very conscious effort to learn about Plame’s relationship with the CIA requires. Novak may have ignored this NOC status but somebody upstairs clearly could not ignore it. I would not mind if the law gave the prosecutors a cudgel to force Novak to denounce his sources : prove you were burnt by your sources or go to the slammer for a long time.
The AIPAC case is different and falls squarely in standard espionage. The dissemination was narrow but involved a foreign agent and it’s fairly likely the AIPAC employees knew about the classified status of the information they were passing along. I don’t know if they deserve punishment but the case should clearly go to court to sort out the mess.
As for the Abu Grahib abuse and the Eastern Europe mini-gulag, both cases clearly involve grossly illegal actions by government agents, not just actions outside of legality but blatant, positive violations of criminal statutes. Invoking classification is just a way to cover them up and any other justification the gov may offer is moot. Crimes happened. Forget about secrecy.