A recent U.S. News & World
Report cover framed one of the most significant security
challenges America faces today very well. It enticed potential
readers with a headline promising "secret" Pentagon plans for the
global war on terrorism.
Of course, what was in the magazine was no
longer secret, and it was unclear whether its publication helped or
hurt the war. But beyond that, the idea that some secret is on the
cover of a national magazine is utterly unremarkable. Hardly a
month goes by without the publication of some purportedly secret
government information. What does this mean for American security,
and how can the nation balance the people's right to know what
their government is doing in an open and transparent manner with
the legitimate need to safeguard sensitive information whose
compromise might jeopardize lives or put the nation at risk?
Taking on a Complex and Sensitive Issue
On July 25, 2005, The Heritage Foundation
hosted a panel discussion entitled "Secrets and Leaks: The Costs
and Consequences for National Security," analyzing the challenge of
maintaining the security of classified information in an age of
intense global media scrutiny, whistleblowers, and bitter political
partisanship and a global war against terrorism. The panel agreed
that leaks of classified material greatly harm national security
and that current laws both inadequately define "leaks" and fail to
provide adequate remedies after their occurrence.
Fixing these problems will be no easy
task. Any activity in this area will have to balance the competing
interests of national security and long-standing traditions of
openness in government. It is, however, a challenge that the
Congress needs to address. The speakers agreed that new legislation
will likely be necessary to solve this growing problem.
Framing the Challenge
The keynote speaker, Representative Pete
Hoekstra (R-MI), chairman of the House Permanent Select Committee
on Intelligence, highlighted the real difficulties of containing
sensitive information in a free society.1 He argued that openness in government
is important in the United States and that the committee is working
to make the discussion of intelligence matters more transparent,
including holding more hearings that would be open to the
public.
The chairman maintained, however, that
certain classes of information must be kept secret to protect the
security of the country. In these cases, using insider information
to advance policy goals or personal agendas--something that has
always taken place in Washington--is simply unacceptable. Revealing
this information is very harmful, but it also is virtually never
punished. In the past 50 years, only one person has been convicted
of leaking classified material, and he was pardoned by President
Bill Clinton.2 Lawrence Franklin,
recently arrested for delivering classified data to foreign agents,
had previously mishandled classified items and was never punished.
There has been a general reluctance to prosecute.
Congressman Hoekstra also argued that the
U.S. penchant for allowing violators to go unpunished damages our
relationship with foreign security services, all of which operate
in a political climate that protects secrecy far more than the
United States does. American laws guaranteeing open government are
unique in the world, and this creates fear of disclosure of
information shared by foreign governments. It also, the chairman
contends, damages the ability of U.S. intelligence to recruit
agents, who fear their identities will be exposed. In addition,
lack of security over America's secrets gives our adversaries
information about our intentions, which they can then use to thwart
our efforts.
The chairman supports zero tolerance for
disclosure of classified information after more narrowly defining
what needs to be classified and educating government employees on
the risks of disclosure. It is time for Congress to address the
issue through legislation.
Four Perspectives on the Problem
The Past Is Prologue: How We Got Here
from There. Ronald Marks, former CIA employee and
counsel to the Senate Intelligence Committee, discussed the
significant growth in the number of persons receiving classified
briefings on Capitol Hill. The role of Congress in intelligence
oversight has changed over the years. It has moved from a very
informal oversight after World War II to special select committees
in each house of Congress. The emphasis was on "select" since
members were chosen, and remained on the committee, based on their
circumspection.
The end of the Cold war changed this
again. In the early 1990s, many more Members of Congress received
briefings from intelligence agencies, based upon the view that
intelligence was evolving away from being primarily for national
security. Agencies perceive testifying on the Hill more often as
positive public relations and therefore do not resist revealing
classified information. This has created obvious difficulties in
controlling the information and creates an impression that being
classified is not really that important.
Why We Have a Problem.
Shannen Coffin, former Deputy Assistant Attorney General in the
Department of Justice, focused on the impact of leaks on civil
litigation. Often, a person who reveals classified information has
pending disciplinary issues with the agency and seeks status as a
whistleblower as protection. This underscores the problem that one
person's leak is another's revelation of government wrongdoing. The
problem arises that the government cannot rebut or respond publicly
to published information because it would further damage national
security. As a result, the media have a huge advantage in
publishing leaks. Coffin called for stronger and more vigorously
enforced criminal penalties.
Leaks Undermine Intelligence
Operations. Richard Russell, a former CIA employee
and currently a professor at the National Defense University,
expanded upon Congressman Hoekstra's concern that disclosures have
severely damaged intelligence-gathering ability. Russell supported
the point that human sources will not cooperate when there are
leaks since their lives could be at stake. Liaison with foreign
services is also jeopardized by publicity because they want to
avoid embarrassment.
It has become more difficult to get truly
secret information in this environment, so intelligence analysts
more often rely on open source material. This, coupled with a
disinclination to horizontally share information within agencies,
has resulted in much poorer analyses. Information is classified to
protect sources and methods. If agencies rely on public sources
rather than insider intelligence, their value is diminished.
In addition, Russell noted, the danger of
leaks and whistleblowers makes security operatives more
risk-averse. The 9/11 Commission chastised the intelligence
community for a "lack of imagination" in addressing the challenge.
In part, the fear of exposure through leaks and other forms of
intelligence compromise contributed to the reluctance of operatives
to think and act "outside the box."
How to Safeguard an Open
Society. Paul Rosenzweig, Senior Legal Research
Fellow at The Heritage Foundation, addressed the issue of
protecting the public's right to know while also recognizing the
government's legitimate need to keep secrets. Since World War II,
150 people have been prosecuted for espionage, giving secrets to a
foreign government, and only one has been prosecuted for giving
information to the press. Since revealing secrets is a problem in
either event, this disparity is wrong. It reveals a belief that
government secrecy must be selective and justified. A new legal
approach to information leaks must take into account the competing
interests of national security and a free society with access to
government information.
This can occur if classification rules are
tightened to cover only vital information and if clear
prohibitions, including clear penalties, are instituted by law.
These currently do not exist, despite widespread belief to the
contrary. People have lost trust in traditional government
oversight as it has become more political. It cannot work if
intelligence policy differences are worked out in the pages of a
newspaper. A new law would help to revive nonpartisan oversight of
intelligence and curtail uninhibited leaking.
Also, any new law that protects the press
from having to reveal sources would damage the cause of national
security. There is no First Amendment privilege protecting
journalists' sources. This is a matter of custom rather than law.
Journalists should have no greater right to secrecy in vital
matters of security than any other members of society, Rosenzweig
said.
Above all, Rosenzweig argued, is the
principle of transparency in the operations of the government. We
cannot have a system where secrets are used to hide failures or
illegal acts. Transparency, however, can be fulfilled in ways other
than blasting America's secrets on the six o'clock news.
Departmental inspectors general and congressional and judicial
oversight can perform this function just as well without
compromising national security.
Moving Forward
The patchwork of laws and regulations that
currently covers protecting classified information is inadequate.
The problem with unauthorized disclosure must be fixed, but in a
way that does not prevent the public from getting useful
information from the government.
In any new legislative approach,
classifiable information must be strictly defined. Government
employees must be trained in the rules for handling classified
information. Congress and the courts, as well as the executive
branch, must have the means and the will to police themselves. When
leaks occur, punishment should follow. The problem of secrets and
leaks requires both legislation and the national will to follow
through on that legislation.
James Jay
Carafano, Ph.D., is Senior Research Fellow for
National Security and Homeland Security in the Kathryn and Shelby
Cullom Davis Institute for International Studies at The Heritage
Foundation. Les Szwajkowski is a Senior Program Manager at Raytheon
Company. He spent 23 years as a special agent in the FBI handling
legal, policy, and national security issues, including some of the
agency's most highly classified programs.