Tag: Secrecy in government

J.K. at Media Matters saves me some trouble by reviewing almost all the latest wingnut talking-points on the Valerie Plame Wilson affair.

The MM rundown brushes quickly past the talking point that might be called “It’s Only a Leak.” IOAL comes in at least three different flavors: Leaks Are Common, Leaks Are Harmless, and Leaks Are Good. What they have in common is the dishonest elision between a vast variety of harmless and useful activity that can be called “leaking” and the extraordinarily rare and damaging activity undertaken by the White House Iraq Group against Valerie Plame Wilson.

Information can be said to “leak” anytime two or more people are trying to keep a secret and one of them blabs. Since secrets about how a democratic government runs should be considered noxious until proven justified, in that sense most leaking is indeed A Good Thing.

But some leaking is illegal, because the information given out is protected by law. That includes tax-return information and other private information about private citizens, grand jury testimony, and classified information. Illegal leaks are less common that legal ones, but they’re common enough.

There is little dispute about the impropriety of leaking private information.

The justification for keeping grand-jury testimony secret seems to me perfectly sound; a grand jury witness, interrogated without a lawyer present, is unusually vulnerable, and prosecutors can use leaks to embarrass witnesses who invoke of the Fifth Amendment privilege against self-incrimination. As far as I can tell most reporters accept grand jury leaks if they can get them, and no reporter ever writes an investigative story about how information protected by law got to one of his professional colleague/competitors. I wish there were more attention paid to violation of the law by prosecutors and the investigators who work with them.

Of course, the obligation to keep grand jury matters secret applies only to the grand jurors themselves, the prosecutors, and the investigators with whom the prosecutors share the information. There is no obligation on a witness not to do what Matt Cooper did by publishing a full account of the questions he was asked and the answers he gave. And if the witness chooses to talk to his lawyer (who is not allowed inside the grand jury room), the lawyer’s duty of confidentiality extends only as far as his client’s interests and preferences; if a lawyer talks about his client’s grand jury testimony, on or off the record, he isn’t violating the rule of grand jury secrecy. (A prosecutor may request witnesses to hold their peace in order to keep from tipping off the suspects, but that request isn’t a legally binding order.)

So the claim that “everything everyone thinks they know about Patrick Fitzgerald’s leak investigation has been leaked” is not just stupidly irrelevant but false-to-fact: to my knowledge, nothing has leaked from the investigation, and everything we know or think we know comes from the accounts of witnesses and their lawyers.

The legitimately controversial category of illegal leaks involves the disclosure of classified information. Yes, that activity fairly common, and yes, it’s usually harmless and frequently beneficial, because most secret information wouldn’t actually damage the national security were it revealed, and much of it is classified solely to avoid embarrassment to officials and their policies.

But the difference between the Espionage Act and a true Official Secrets Act is that the Espionage Act punishes only potentially harmful leaks: “reason to believe that the information could be used to the injury of the United States” is one of the elements of the offense. “That information couldn’t have been used to damage the country” is a complete defense against an Espionage Act charge, if the defendant can show evidence for it.

But of course the identity of a CIA NOC is obviously the sort of information whose disclosure is likely to damage the national security. And the fact that some clever detective work by a foreign intelligence agency might have been able to ferret out that information is neither here nor there. Secrecy, unlike pregnancy, has degrees; it’s possible for an undercover officer’s cover to be potentially blown, or a little bit blown, or somewhat blown, or (after Robert Novak publishes her name, her CIA affiliation, and the name of her “cover” employer) blown to smithereens. The fact that Moscow Center had perhaps heard of Valerie Plame doesn’t mean that the Pakistani or Nigerian or Iranian secret police knew about her.

It’s Only a Leak has been in use almost since Day One: GWB’s first reaction to the report that someone working for him had outed a NOC was to denounce “leaks of classified information.” From the perspective of the Bush Administration, identifying the problem as “leaks of classified information” serves two purposes: trivializing the appalling breach of national security that occurred in this case, and building support for tougher measures against leaks that are beneficial to the nation but harmful to the kleptocrats now running it and to their allies abroad. (The Bush Administration has already sent a DEA analyst to prison for revealing that a Tory Party bigwig was laundering drug money; none of those mouthing It’s Only A Leak now seems to have protested then.)

It’s perfectly understandable that people who like tax cuts for the rich, loosening of environmental regulation, weakening the power of labor unions, “tort reform,” tightening bankruptcy rules, Social Insecurity, right-wing nominees to the Supreme Court, and neocon foreign policy adventures should hope that the Bush Administration and the Republican Party emerge from this scandal as little damaged as possible, just as those of us who dislike those policies should hope for as much damage as possible.

But, like some of the liberal attempts to explain away Bill Clinton’s zipper problem and its legal complexities, conservative attempts to explain away the disclosure of Valerie Plame Wilson’s identity as a CIA officer ought to be embarrassing to those who are forced to offer them. As John K. Kennedy famously said, “Sometimes party loyalty demands too much.”

Jack Shafer ofSlate’s Pressbox has been insisting all along that there was no prosecutable substantive crime in the Plame Affair, and criticizing the investigation on that basis. (Shafer once likened Patrick Fitzgerald to Inspector Javert of Les Miserables.)

Since, Shafer reasoned, the misconduct of the White House Iraq Group in the Valerie Plame Wilson case probably couldn’t be shown to have met all the elements of the hard-to-violate Intelligence Identities Protection Act, Patrick Fitzgerald would in the end either have to bring prosecutions on ancillary charges such as making false statements to investigators (a la Martha Stewart) or simply write a report and fold his tents.

Based on this week’s developments, Shafer is now willing to entertain the alternative thought that the Espionage Act might apply. (He generously credits me for badgering him into reconsidering the question.)

But the thought doesn’t make Shafer happy. He fears, not unreasonably, that the Espionage Act, if enforced as written, could amount to an Official Secrets Act: a Very Bad Thing, as I’ve argued before.

Shafer writes:

National-security reporters … receive classified information for a living. If the government used espionage law to investigate government leaks to the press, the effect would be an unofficial secrets act criminalizing thousands, if not tens of thousands, of annual conversations between sources and reporters.

[snip]

… no Department of Defense, National Security Council, Department of State, or White House staffer with security clearances would ever speak—on or off the record—to any reporter about any sensitive topic. The sheer legal exposure would prove too much. Knowing they’re explicitly liable for indictment, they’ll just stop talking to reporters.

Actually, it could be even worse than that: officially-authorized leaks would continue (“I never leak,” Henry Kissinger used to say. I de-classify.”) while whistleblower leaks might dry up. After all, in general it’s the administration in power that gets to decide who does, and who does not, get prosecuted. (The risk would be especially grave if journalists as well as leakers were prosecuted; the law allows for that, but there’s no hint that Fitzgerald intends to go that far, and I doubt that such a prosecution could, or should, survive a First Amendment challenge.)

So I’m entirely with Shafer, the ACLU, and the National Security Archive in thinking that existing secrecy laws are overbroad and need to be reined in. I would de-criminalize the publication of classified information by reporters and by anyone else without a clearance; the job of keeping secrets secret is the government’s job, not that of the press. And I would replace the vague “reason to believe” that information “could be used to the injury of the United States” with a standard requiring proof of probable or actual damage, and allow action in the public interest as an affirmative defense. (That might require some in-camera hearings, after the fashion of the “graymail” statute.)

The resulting bill might get fifty votes in the House on a good day, and maybe a few in the Senate. If the Democrats were foolish enough to push such a proposal, we’d hear endlessly from Karl Rove, his allies, and his trained seals in the media about how liberals want to weaken our national security in the face of the Islamofascist threat.

So now let’s imagine a strategy for passing our bill in the face of that political situation. Can you imagine a more potent means of securing support from the current Administration and the GOP majority in Congress than prosecuting Karl Rove and his buddies under the current law? I can’t.

And since, in my view, the conduct of the people who arranged for Valerie Plame Wilson’s identity as a CIA officer to be revealed (and along with it the identities of the other CIA officers using Brewster Jennings as cover) would easily meet a standard of actual damage to the national security, I see no reason not to prosecute them under the law as it now reads. They did the crime; now let them do the time.

Tom Maguire, worried lest I should tear my hair out in frustration, links to an analysis of the Espionage Act question by the Baseball Crank, who knows more of the relevant caselaw than I do, and to another by Dale Franks. All three would desperately like to believe that Karl Rove won’t go to jail — just as I desperately hope that he will — but that doesn’t make what they say wrong.

Both the Crank and Franks more or less conclude that, on its face, the Espionage Act applies to Rove’s reported conduct.

The Crank points out that proving some if its elements in open court might compound the damage to national security, and that the risk of damage might deter prosecution. In other words, Rove and his co-defendants might be able to practice “graymail.” That’s a fair point, but my understanding is that the Reagan-era anti-graymail laws work pretty effectively.

The Crank also raises an excellent point that I should have mentioned: since the IIPA covers some of the same territory already covered by the Espionage Act, do the IIPA provisions in effect narrow what would otherwise be the scope of the EA?

He’s surely right that my broad reading of the EA would make the IIPA almost, or perhaps entirely, redundant: virtually no case could be brought under IIPA that couldn’t equally well be brought under EA. (“Why, then, would Congress have passed it?” I hear you ask. “Because,” I reply, “Congressfolk wanted a chance to vote against Counterspy, but the civil liberties lobby was strong enough back then to insist that the new law be strictly limited in scope.”)

But the courts are reluctant to find that one law repeals another unless the law says as much, and IIPA nowhere refers to EA.

The Crank reads the caselaw as tightening the scienter requirement of the statute in a way that would allow Rove to claim that he didn’t know Plame’s identity as a CIA officer was classified, or that, if it was, he didn’t have reason to believe that disclosure could be used to damage the country. Again, maybe that’s right, but the law uses the term “willful” only with regard to the communication itself, not to the belief that it might be damaging. And, as the Crank notes, the case he relies on preceded a Congressional amendment greatly weakening the scienter requirement from “reason to believe the information is to be used” to “reason to believe the information could be used.” The Crank doesn’t consider the question whether classification in itself constitutes “reason to believe” that information if released would be damaging.

The Crank and Franks argue — and I agree — that, as written, the Espionage Act is overbroad as a matter of policy, especially because it criminalizes the receipt of damaging information as well as its leakage, thus threatening reporters with prosecution.

Franks imagines that a prosecution of Rove under the Espionage Act would rally the press to his side, out of fear that the Espionage Act could become in effect an Official Secrets Act. (I would note that the reporters in question would have a very strong defense on the element of “reason to believe;” they don’t have security clearnances, and they would have no reason to suspect that information given them freely by a senior official was likely to be damaging if published.)

Surely, if prosecutors overused the law, and in particular if they used it to prosecute reporters for publishing accurate information, they could lose the law, either to a Supreme Court decision on First Amendment or vagueness grounds or to Congressional action to cut back its overbreadth. The same is true of the false statements law (18 U.S.C. 1001), which if read literally would criminalize most lobbying, PR work, and campaign oratory.

But the Crank and Franks both write as if the damage done by the White House revelation of Plame’s identity were an open question. It is, of course, in political and blogospheric terms. But those who have actually seen the evidence evince no such doubt. Fitzgerald — a career prosecutor who was chosen for his job as U.S. Attorney by a very conswervative Republican Senator and for his role as special prosecutor by Bush’s own Deputy Attorney General — obviously thinks he’s prosecuting serious crimes. So did the people in the CIA who made the criminal referral. So does Judge Hogan. So did the appeals court judges who heard the case, and in particular Judge Tatel.

If the Espionage Act is used to punish a serious breach of security which compromised intelligence sources and methods in regard to weapons of mass destruction, and is used to prosecute officials rather than reporters, I think it highly likely that a jury and appellate judges will hold still for that, and that the non-Murdoch press will sympathize with the prosecution and not the defense.

In general, I disapprove of passing laws that put excessive reliance on prosecutorial discretion. I wouldn’t mind seeing both EA and 1001 cut back to size (or RICO, for that matter). But the courts have tolerated such laws as long as the prosecutors have in fact remained discreet about their use. And if ever a case called for Espionage Act prosecution, this is that case.

I’m grateful to Tom Maguire for his concern about my hair, for paying attention to this issue, and for inducing some of the folks on his side of Blogland to do the same. So far the GOP spin that this case is about IIPA or nothing remains dominant in the mainstream press.

When last heard from, Glenn Reynolds wanted people fired or jailed for leaking classified information. As I tried to explain at the time, that’s a very bad idea, since most classified documents won’t threaten the national security if released, and, if no one ever leaks classified information, those in power will have more capacity to cover up their lies and blunders and we as citizens will have less capacity to know what’s going on.

[Release of genuinely sensitive information about weapons capability, order of battle, vulnerability of targets, and intelligence sources and methods is a different issue entirely. The same sometimes applies to technical information about how to make a nuclear weapon or weaponized anthrax, or either side of the cryptography/cryptanalysis problem.]

I’m delighted to report that Glenn seems to have changed his mind. At least, he’s quite pleased by the publication in the Weekly Standard of what the Standard says are large chunks of a Top Secret document, purporting to show strong ties between the Ba’athist regime in Iraq and al-Qaeda.

I’m with Glenn: the more of this we get to read, the better. Let’s have the whole document, though, not just the Standard’s version of it. (And while we’re at it, can we see the censored 28 pages from the Senate Intelligence Committee’s report 9-11: the pages that lay out the role of the Saudi monarchy?)

However, as Graham Greene pointed out in Our Man in Havana, the fact that a document is stamped “Top Secret” doesn’t mean that any of the information it contains is true. Matthew Yglesias, considering the source — Doug Feith — offers reason to doubt that the “report” adds much to our knowledge. He’d rather have his intelligence processed by intelligence agencies than by advocates.

There’s every reason — starting with the lack of outcry from the Adminstration, ever vigilant, under the cover of “security,” against the release of anything embarrassing — to think that this memo was written to be leaked, and that the information inside is just as insincere as the “Top Secret” stamp on the front.

One advantage of leaking over open publication is deniability. Another is unaccountability: this way, if challenged on his assertions, Feith can just say “That material is classified and I can’t discuss it.”

Update Hmph. The “official leak” theory just took a big hit. DoD put out a press release denying that the docment said what the Standard, and the warbloggers quoting the Standard, said it said. (The Standard’s headline was “Case Closed.”)

Here’s the full text of the DoD release:

News reports that the Defense Department recently confirmed new information with respect to contacts between al-Qaida and Iraq in a letter to the Senate Intelligence Committee are inaccurate.

A letter was sent to the Senate Intelligence Committee on October 27, 2003 from Douglas J. Feith, Under Secretary of Defense for Policy, in response to follow-up questions from his July 10 testimony. One of the questions posed by the committee asked the Department to provide the reports from the Intelligence Community to which he referred in his testimony before the Committee. These reports dealt with the relationship between Iraq and al-Qaida.

The letter to the committee included a classified annex containing a list and description of the requested reports, so that the Committee could obtain the reports from the relevant members of the Intelligence Community.

The items listed in the classified annex were either raw reports or products of the CIA, the NSA, or, in one case, the DIA. The provision of the classified annex to the Intelligence Committee was cleared by other agencies and done with the permission of the Intelligence Community. The selection of the documents was made by DOD to respond to the Committee’s question. The classified annex was not an analysis of the substantive issue of the relationship between Iraq and al Qaida, and it drew no conclusions.

Individuals who leak or purport to leak classified information are doing serious harm to national security; such activity is deplorable and may be illegal.

Now a ritual denunciation of leaking can accompany an official leak, and it’s worth noting that the release, at least, doesn’t threaten an investigation, and Google News doesn’t turn up any such threat being made from the White House. (That doesn’t, of course, mean that an investigation won’t happen.)

But the DoD document goes well beyond that. It actively tries to rain on the Standard’s parade. The Standard had pushed the Feith memo as embodying new information and reaching strong conclusions:

The memo, dated October 27, 2003, was sent from Undersecretary of Defense for Policy Douglas J. Feith (search) to Senators Pat Roberts and Jay Rockefeller, the chairman and vice chairman of the Senate Intelligence Committee. It was written in response to a request from the committee as part of its investigation into prewar intelligence claims made by the administration. Intelligence reporting included in the 16-page memo comes from a variety of domestic and foreign agencies, including the FBI, the Defense Intelligence Agency, the Central Intelligence Agency, and the National Security Agency. Much of the evidence is detailed, conclusive, and corroborated by multiple sources. Some of it is new information obtained in custodial interviews with high-level Al Qaeda terrorists and Iraqi officials, and some of it is more than a decade old. The picture that emerges is one of a history of collaboration between two of America’s most determined and dangerous enemies.

According to the memo, which lays out the intelligence in 50 numbered points, Iraq-Al Qaeda contacts began in 1990 and continued through mid-March 2003, days before the Iraq War began. Most of the numbered passages contain straight, fact-based intelligence reporting, which in some cases includes an evaluation of the credibility of the source. This reporting is often followed by commentary and analysis.

But the DoD release denies all of this. It describes the “memo” as consisting merely of a list of reports, and as not reaching any conclusions.

So it seems unlikely that this was authorized at the top of DoD.

It’s possible that Feith, or someone working for him, leaked the document, with or without clearance from the White House political operation, or that Rove’s people did it, with or without Feith’s acquiescence. But it’s also possible that the source was someone on the Intelligence Committee or its staff, presumably someone with an interest in making the case for war look stronger.

Second update: Spencer Ackerman in Washington Monthly marshals the evidence against any significan Iraqi role in terrorism directed against the U.S. I’m not familiar with Ackerman’s work, but pass it along for what it may be worth.

I really have no idea whether Bob Graham would make a good President, or even a good candidate, but he does seem to be saying the right things:

Graham alleges a coverup of pre-9/11 failure

By TYLER BRIDGES

tbridges@herald.com

DES MOINES - Sen. Bob Graham accused the Bush administration Sunday of covering up its failure to possibly prevent the Sept. 11 terrorist attacks by refusing to release the findings of a Graham-led congressional investigation last year.

Graham said on CBS’ Face the Nation program that the administration is not withholding the information to protect national security.

”In fact, a great deal of the information which they want to keep classified has already been released, such as in testimony by CIA and FBI officials in public hearings,” Graham said. “I think what they are shooting at is to cover up the failures that occurred before September the 11th.”

Releasing the report, he said, could help law enforcement prevent another attack.

In an interview later, Graham said, “I think what the administration is concerned about is that we have connected the dots. They don’t want the American people in one document to know and be able to assess and hold accountable the people who were involved in the lead up to September 11.”

Countered White House spokesman Tucker Eskew: “We have been working cooperatively with the joint inquiry from the beginning so that the American people will know what happened. I do not think the American people want anyone in the government to release operational details or sources and methods that could compromise our national security.”

The joint committee was co-chaired by Graham and Rep. Porter Goss. It issued a 900-page report in December that detailed security lapses, poor communication and missteps by the CIA and FBI before Sept. 11.

Since my teaching hobby has begun to interfere seriously with my career as a blogger, in lieu of fresh comment on this I’m going to resort to self-quotation (in somewhat edited form), from a post that is one of my own favorites but which no one, if I recall correctly, picked up on.

Abuse of the classification system to control public debate is pervasive. Only subset of classified material would really be of use to a potential enemy. Additional material is properly classified for “sources and methods” reasons: the information itself isn’t sensitive, but revealing that we know it might reveal where the bug is or which attache is selling us secrets.

But those two categories together do not exhaust what can properly be classified according to the statute. Any information the release of which would tend to impede the foreign policy of the United States is, by law, properly classifiable. So if our current policy is to suck up to the House of Saud, any information, including translations from the Riyadh newspapers, the revelation of which would tend to annoy the Saudis, can be, and almost certainly is being, protected by a “Top Secret” stamp.

I know what I’m talking about; I’ve been there.

When I was young and irresponsible, I had a job at the Justice Department analyzing drug policy. In that capacity, I was put through the full security mumbo-jumbo and received a Top Secret clearance and, on top of that, clearances for various very highly taboo Codeword categories: categories, that is, the very names of which are classified at above the “Top Secret” level. (The initiation ceremony involves being dipped in the blood of … well, I could tell ya, but then I’d have to kill ya.)

Having been cleared, what did I learn that it would then have been a felony for me to reveal? Nothing that would have helped the Russkis or the narco-bad-guys. But I did learn the names of assorted corrupt high-level officials in various of the Carribean banking havens Jeff MacNelly once lampooned as “Rinky-Dink and Tabasco.” No elaborate spying had been required to learn the names; apparently it was routine cafe gossip in the countries involved. So why, I asked, is this material classified? Not that I had any desire to reveal it, but I was curious.

The senior security guy in the Criminal Division set me straight: Yes, everyone knew that the Rinky-Dink-and-Tabasconese Finance Minister, or Central Bank president, or whatever it was, was crookeder than a dog’s hind leg. He knew, we knew, the Prime Minister knew, the Prime Minister knew we knew, we knew he knew we knew, ad infinitum. Maybe the Rinky-Dink-and-Tabasconese voters didn’t know; that was their lookout.

But it was our policy to make nice to Rinky-Dink and Tabasco (honest, I forget which contrylet we were talking about). If it were revealed publicly that the US Government had knowledge that Mr. So-and-so was on the take, that would embarrass the Rinky-Dink-and-Tabasconese government, thus impeding U.S. foreign policy. Ergo, Codeword classified: properly Codeword classified

There’s a story Khruschev used to tell, back when he was General Secretary of the CP-USSR (i.e., dictator). In the story, an Old Bolshevik goes crazy, and runs through the halls of the Kremlin shouting, “Khruschev is a fool! Khruschev is a fool!” Naturally, he’s promptly arrested, charged, tried, convicted, and sentenced to twenty-three years of corrective labor in Siberia: three years for insulting the Party Secretary, and twenty for revealing a state secret.

An enormous amount of classified information consists of state secrets of the Khruschev-is-a-fool variety. And the incumbent administration is completely free to decide that revealing any given bit of information would be consistent with our foreign policy, and reveal it. As Henry Kissinger used to say, “I never leak. I de-classify.” This is a huge problem, and an excellent reason not to have anything resembling an Official Secrets Act.

Let’s here more on this from the other Democratic candidates: and John McCain, if he’s still alive.