Leaks in a Democratic Society Sunshine in Government Initiative April 2007


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Leaks in a Democratic Society
Sunshine in Government Initiative

April 2007

Leaks play a vital role in a democracy, the cornerstone of which is an informed citizenry. Without leaks, the American public would know nothing – or little – about:

  • The U.S. government’s involvement in Vietnam dating back to 1945 as documented in the 7,000 pages known as the Pentagon Papers.

  • Former U.S. attorney general and Nixon campaign manager John Mitchell’s involvement in a $400,000 political donation by the International Telephone and Telegraph Corp., and the Justice Department’s dismissal of an antitrust suit against ITT.

  • Abscam, the 1970s scandal resulting from an FBI investigation targeting various public officials, including members of Congress. FBI employees posed as Middle Eastern businessmen associated with an Arab sheik who offered money in return for political favors.

  • A 1953 CIA-aided coup in Iran which ousted an elected prime minister, brought the shah to power and fomented anti-Americanism in the country. The coup, reported on in 2000, is believed to be the CIA’s first successful overthrow of a foreign government.

  • Ivy Bells, a joint Navy-National Security Agency underwater secret surveillance mission to eavesdrop on the Russians during the Cold War, and the Soviet discovery of the mission.

  • A National Intelligence Council report estimating the short-term outcome for the war in Iraq as ranging from tenuous stability to civil war.

  • A U.S. government report on the financial self-sustainability of the Iraqi insurgency.

  • Prime Minister Tony Blair’s inflated dossier on Iraq’s weapons program, and the false but alleged link between al-Qaeda and Iraq.

  • The inhuman treatment of prisoners in the U.S.-run Abu Ghraib prison in Iraq and the prison at Guantanamo Bay, Cuba, the former of which was documented in a 53-page report written by Army Maj. Gen. Antonio M. Taguba.

  • The existence of a CIA-operated covert prison system for suspected terrorists in Thailand, Afghanistan and Eastern Europe.

  • A National Security Agency program authorized by the president to eavesdrop, without warrants, on Americans and others living in this country.

  • The use of a financial monitoring program that allows U.S. counterterrorism officials to obtain information from a database that monitors about 11 million financial transactions daily among 7,800 banks and other financial institutions in 200 countries.

All of the above-mentioned stories involve the government’s interest in secrecy colliding with the press’ constitutionally protected freedom to publish information of value to the public. The collision may appear to be what Yale constitutional scholar Alexander Bickel once called a “disorderly situation.” But it works, according to Geoffrey R. Stone, the Harry Kalven Jr. Distinguished Service Professor of Law at the University of Chicago.

“The solution, which has stood us in good stead for more than two centuries, is to reconcile the irreconcilable values of secrecy and accountability by guaranteeing both a strong authority of the government to prohibit leaks and the expansive right of the press to publish them,” Stone wrote in “Government Secrecy vs. Freedom of the Press.” (p. 13, Vol. 7, No. 1 (December 2006), First Reports, First Amendment Center) “This solution may seem awkward in theory and unruly in practice, but it makes perfect sense and has stood the test of time.”

Indeed, in the entire history of the United States, the government has never prosecuted the press for publishing confidential information.
What’s more, Stone concludes, existing law already allows the government to “constitutionally punish the press for publishing classified information if the publisher knew that (a) it was publishing classified information, (b) the publication of which would likely result in imminent and serious harm to the national security and (c) the publication would not meaningfully contribute to public debate.” Constitutional punishment of journalists for receiving or soliciting the disclosure of classified information from a public employee also is possible, in specific and rare circumstances, within the existing framework of the law, Stone notes. The government also can constitutionally discipline, fire or criminally punish a government worker who knowingly discloses classified information not already in the public domain. (p. 26)
In short, no new laws are necessary and any new statutes may have serious First Amendment consequences, as noted by the Congressional Research Service in a 2006 report. “If a challenger were able to show that agencies classify information that it is unnecessary to keep secret, he could argue that the statute is invalid as overly broad because it punishes protected speech that poses no danger to the national security,” CRS Legislative Attorney Jennifer K. Elsea wrote. (“Protection of National Security Information,” Congressional Research Service, updated Dec. 26, 2006.

http://www.fas.org/sgp/crs/secrecy/RL33502.pdf (visited April 5, 2007))

A Responsible – and Responsive – Press

The fact that the government has never prosecuted the press for publishing classified information demonstrates that the media, in its unique role in a constitutionally protected profession and democracy watchdog, listens to concerns of government officials and makes responsible journalistic judgments on withholding truly harmful information.

Leading senior journalists, high-level national security officials from various agencies, news executives and senior members of the congressional intelligence committees and/or their key staffs are already working together under the umbrella of non-profit Aspen Institute to identify and develop collaborative and workable approaches for overcoming the press-government tensions that arise in intelligence reporting. During the seventh annul Aspen Institute Conference on Journalism and Society in June 2003, leading journalists, news executives and media lawyers came up with best practices for reporting on sensitive information. They are:
1. Journalists not only have the duty to serve the public interest by reporting and informing, but also the responsibility to consider the consequences of their reporting, including the potential that publication might directly damage the nation’s security and the public safety.

2. Journalists have a responsibility to consider the government’s position if it objects to publication or asks for delay.

3. Journalists should give serious consideration to the risk of compromising ongoing investigations and sensitive operations.

4. Before news is reported, a responsible editor or news executive should know the bona fides (the knowledge, expertise, credibility and interest) of critical confidential sources and be prepared to ascertain their identities.

5. Journalists have a duty to their audience to be transparent about agreements they make with the government and to reveal them when they report the news story itself.

(p. 21, “Journalism, Security and the Public Interest: Best Practices for Reporting in Unpredictable Times,” Adam Clymer, The Aspen Institute, 2003. http://www.aspeninstitute.org/atf/cf/%7BDEB6F227-659B-4EC8-8F84-8DF23CA704F5%7D/JOURNSECRTY.(64PAGE)72.PDF (visited April 5, 2007))

Gen. Michael Hayden, the director of the CIA and Tom Curley, CEO of Associated Press, led the most recent Aspen Institute dialogue in October 2006, and discussed in a not-for-attribution session each other's responsibilities and performance in regard to disclosure of sensitive information.
Another session is planned in 2007 with off-the-record discussions planned on practical ways to reduce overclassification and promote the healthy dissemination of information while protecting the most sensitive information, sources and methods. Also on the agenda is bettering congressional oversight of the intelligence community. And there are discussions planned about the possible creation of courses, both beginning and advanced, on intelligence issues for journalists and intelligence officials who regularly deal with the media.
Many journalists already apply the best practices that emerged from the Aspen Institute dialogue in 2003. Consider three stories regarding national security – two recent, the other decades old. In 1985, The Washington Post’s Bob Woodward learned of the existence of Operation Ivy Bells, a U.S. Navy-National Security Agency secret surveillance mission to tap Russian communication cables that ran along the floor of the Sea of Okhotsk during the Cold War.
A great scoop, but the Post chose not to run the story since it was a sensitive and ongoing spy program.

“I could see no useful social purpose whatever in publishing news about our new intelligence capability,” Ben Bradlee, then-executive editor of the Post, wrote in his 1995 autobiography, “A Good Life.” (p. 470)

Several months later, Woodward learned that the project had been actually shut down several years earlier after being compromised by a low-level NSA worker, Ronald W. Pelton. Woodward and Bradlee decided to run the story. When the CIA and the White House caught wind of the Post’s story, President Reagan called Post CEO Katharine Graham and then-CIA Director Bill Casey met with Bradlee, telling him the story would compromise national security and threatening prosecution under the Espionage Act.

Bradlee ultimately rejected Casey’s argument, noting that the Russians would learn nothing new from the article, but Bradlee and Woodward decided not to run the story for 48 hours. NBC News scooped the Post, and two days later, the Post ran its piece.
In “A Good Life,” Bradlee wrote about the lessons of Ivy Bells:
“First, the damage to the national security was done by Pelton, not by The Washington Post, nor the press generally.

Second, the government tried to prevent publication to avoid national embarrassment. Once it was certain that the Russians knew everything about Ivy Bells, there was no issue of national security.

Third, the claim that publication would threaten national security is an insidious one. The public feels entitled to believe that a president, or a CIA director, or a four-star general knows more about national security than a two-stripe editor. It is a formidable task to convince the public that patriotism is not exclusively the province of administration officials.” (pp. 473-474)

Bradlee goes on to say:

“In my time as editor, I have kept many stories out of the paper because I felt – without any government pressure – that the national security would be harmed by their publication.” (p.474)
More recently, the Post’s Dana Priest broke the Nov. 2, 2005, story about the CIA’s covert prison system operating in Thailand, Afghanistan and in “several democracies in Eastern Europe.” Priest declined to identify the Eastern European nations, and so noted in her story:

“The Washington Post is not publishing the names of the Eastern European countries involved in the covert program, at the request of senior U.S. officials. They argued that the disclosure might disrupt counterterrorism efforts in those countries and elsewhere and could make them targets of possible terrorist retaliation.”

(“CIA Holds Terror Suspects in Secret Prisons,” The Washington Post, Nov. 1, 2005, http://www.washingtonpost.com/wp-dyn/content/article/2005/11/01/AR2005110101644.html (visited April 5, 2007))

One month after Priest’s story, ABC News reported that Poland and Romania, in response to Human Rights Watch reports, closed secret CIA prison camps.
About six weeks after Priest’s story, The New York Times reported about the NSA’s secret eavesdropping program that bypassed the court-approved warrants ordinarily required for domestic spying, a story the paper held for 14 months in part over national security concerns. What’s more, James Risen and Eric Lichtblau noted in the Dec. 16, 2005, piece that they did not report all the information they had collected:
“The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.”
(“Bush Lets U.S. Spy on Callers Without Courts,” The New York Times, Dec. 16, 2005,

http://www.commondreams.org/headlines05/1216-01.htm (visited April 5, 2007))
When asked by PBS’s “Frontline” in 2006 why it took 14 months to get the NSA eavesdropping story in the paper, Lichtblau said:
“The paper takes national security issues very, very seriously. I think the fact that we did look as long and hard at that as we did is evidence that we're not just going to rush something into the paper that could compromise national security.”

(Transcript of interview by PBS’ Frontline with Lichtblau, conducted July 14, 2006.

http://www.pbs.org/wgbh/pages/frontline/newswar/interviews/lichtblau.html (visited April 5, 2007))
New York Times Editor Bill Keller and Dean Baquet, then-Editor of the Los Angeles Times, wrote a joint column in the summer of 2006 after both papers reported on a secret Bush administration program that monitors international banking transactions. The column explained how two of the nation’s largest newspapers decide whether to publish classified information.
“No article on a classified program gets published until the responsible officials have been given a fair opportunity to comment. And if they want to argue that publication represents a danger to national security, we put things on hold and give them a respectful hearing. Often, we agree to participate in off-the-record conversations with officials, so they can make their case without fear of spilling more secrets onto our front pages. (“When Do We Publish a Secret? July 1, 2006, The New York Times, http://www.nytimes.com/2006/07/01/opinion/01keller.html?ex=1309406400&en=2ed55afc4e52e771&ei=5088&partner=rssnyt&emc=rss)
Keller, in a subsequent interview with “Frontline,” spoke about President George W. Bush’s request not to publish:

“But in the end, you can't defer to the government on these kinds of decisions. It may seem odd to ordinary Americans that somebody like me has the power to defy the president of the United States, but in fact, that's the way the inventors of the country set things up, because the alternative was to let the government be the final arbiter of its own flow of information. ...”

(Transcript of interviews by PBS’ Frontline with The New York Times’ Bill Keller, conducted July 10, Oct. 18 and Nov. 30, 2006. http://www.pbs.org/wgbh/pages/frontline/newswar/interviews/keller.html (visited April 5, 2007))

Indeed, Thomas Powers, an intelligence expert and author of “Intellience Wars: American Secret History From Hitler to al-Qaeda,” told American Journalism Review’s Rachel Smolkin that: “‘You could ransack the literature and not come up with three examples’ where publication has harmed national security. He calls such claims ‘wildly overblown,’ adding, ‘No government since World War II has demonstrated that it can be trusted in that area. They constantly and repeatedly hide behind national security arguments in order to do dumb or doubtful things.’” (“Judgment Calls How top editors decide whether to publish national security stories based on classified information,” AJR, October/November 2006. http://www.ajr.org/Article.asp?id=4185 (visited April 5, 2007))
Hayden, the CIA director, recently praised journalists at The New York Times, The Washington Post and The Associated Press for having a reportorial instinct to "not naturally assume evil" on the part of the CIA.
"We are a powerful, organization inside of a political culture that only distrusts two things: power and secrecy," Gen. Hayden told Brian Lamb on C-SPAN's "Q&A" on April 15, 2007. "And so, there is a natural tendency to take any story about us, and as I said before, shove it into the darkest corner of the room. The best people of the press who cover us don't do that instinctively, or fight that instinct and let the data taken them where it does."
Gen Hayden also noted that opening up communications inside the agency after his May 31, 2006, swearing-in sparked a lessening of leaks.

"We've found that [when] people have a comfort level that their views are heard inside the agency, there's less of a tendency for legitimate, or perhaps not to legitimate, reasons to go outside the agency," he told Lamb. "And that seems to have worked."

Leak investigations often fruitless
Leak investigations are expensive, time-consuming and rarely successful, the latter of which President Bush lamented at a recent White House press conference.
“It turns out you can never find the leaker,” Bush said Dec. 20, 2006, in response to a question about a memo written by National Security Advisor Stephen Hadley criticizing Iraqi Prime Minister Nouri al-Maliki and leaked to The New York Times.

(Transcript of White House news conference, Dec. 20, 2006, http://www.whitehouse.gov/news/releases/2006/12/20061220-1.html (visited April 5, 2007))

History proves him right.
In 1989, then-Attorney General Richard Thornburgh launched an unsuccessful investigation into who leaked to CBS information about an FBI inquiry of then-Rep. William H. Gray III (D-Pa.) Thornburgh spent $224,000 and his investigators questioned more than 30 individuals, including top Justice Department officials.
In 1992, special Senate Counsel Peter Fleming issued a 170-page report in which he failed to conclusively identify who leaked information to National Public Radio and Newsday about Anita Hill’s sexual harassment allegations against Clarence Thomas during his Supreme Court confirmation hearings. The four-month investigation cost taxpayers more than $550,000.
Fleming also failed to find the source of leaks to The Washington Times about the Senate Ethics Committee’s investigation of five senators who performed favors for Charles Keating in the savings and loan scandal of the 1980s.

Leak chasing is frustrating, the recently retired head of the FBI’s leak-investigation section told The New York Sun earlier this year. “I wish we had better success in this area. This stuff is a wilderness of mirrors,” Michael Donner, who helped crack several high-profile spy cases, including that of Aldrich Ames, told the paper.

Before retiring, Donner convinced the FBI in 2005 to abandon several criminal investigations into leaks of classified information to the media because of lack of cooperation from one or more intelligence agencies, the paper reported. The Sun obtained more than 300 pages of heavily redacted pages of leak investigation files under the Freedom of Information Act.

(Leak Probes Stymied, FBI Memos Show, Josh Gerstein, The New York Sun, Jan. 10, 2007, http://www.nysun.com/pf.php?id=46407 (visited April 5, 2007))

The Government Accountability Office has looked into leak investigations twice, concluding that government investigators frequently cannot determine the source of leaks.
In a 1982 GAO review of a Department of Defense investigation of a disclosure of classified information to The Washington Post, the GAO reported that 26 individuals were polygraphed, while 34 others were interviewed without polygraphs. The end result was a letter of reprimand to one individual for “disregard for DOD regulations, but not for ‘leaking’ the official information that appeared in the article,” according to the report to then-Rep. Jack Brooks, chairman of the House Subcommittee on Legislation and National Security.
As part of its review, GAO studied synopses of 68 investigations of leaks of classified materials conducted by the Army, Navy, Air Force and DIS between January 1975 and October 1982:

“In no case was there any indication that an individual was removed from a position of trust because of an investigation,” wrote then-GAO Director William J. Anderson. “In most cases, the sources of the leaks could not be determined because of the wide dissemination of the classified information.” (Emphasis added, GGD-83-15, Review of DOD Investigation of Leak of Classified Information to The Washington Post, Oct. 7, 1982. http://archive.gao.gov/f0102/119859.pdf (visited April 5, 2007))

The GAO, reviewing of the leak of the Federal Reserve System’s July 20, 1983, long-range monetary growth targets to Bondweek and subsequent other media outlets, was unable to determine exactly how and when that leak occurred. GAO investigators found that at least 239 people in the Federal Reserve System or Congress knew of the decision or handled documents containing the secret monetary growth targets. (GGD-84-40, Unauthorized Disclosure Of The Federal Reserve’s Monetary Policy Decision, Feb. 3, 1984, http://archive.gao.gov/d5t1/123361.pdf (visited April 5, 2007))
Classified information is more widely distributed now than in the late 1970s and early 1980s, particularly in the wake of Sept. 11, 2001, when intelligence agencies were implored to share information with one another. What’s more, a record 15.6 classification decisions were made in 2004, nearly double the number in 2001, according to the federal Information Security Oversight Office. There were another 14.9 million classifications in 2005.

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