Since coming to office, the Obama Administration has brought five criminal cases charging present and former government officials with violating the law by disclosing national security information to the press without authorization under the Espionage Act. In one of these cases, it is seeking to force a reporter to testify and reveal the source of the information he published on the grounds that he was the only witness to the so called "crime" of orally receiving information from a government official. The number of indictments constitutes a startling departure from past practices and threatens Americans' ability to know what their government is doing. At the same time, others are criticizing the administration for not responding to information about intelligence operations that has appeared in the press.
There is now a national debate about how best to protect genuine national security secrets from exposure by the press, while insuring that the public receives the information it needs to participate in shaping national security policy. Every study on this issue has concluded that one essential step is to drastically reduce the volume of information that is classified. When there is vast over-classification it is hard to protect real secrets and difficult to persuade government officials that they are doing harm by providing information, which is classified, to the press and the public. A second key measure is to improve administrative procedures, both for determining the source of a serious leak, and for enabling the government to punish that person through administrative action including revoking a clearance or termination. Steps to punish leaks, while in principle unobjectionable, would need to be accompanied by protection of whistle blowers and the establishment of clear channels to report waste, abuse, and illegal activity.
Another course of action for deterring leaks of properly classified information is the threat of criminal penalties. Efforts to impose criminal penalties, however, have played a surprisingly small role in efforts to prevent leaks.
It is true that every administration since World War II has asserted that efforts to disclose information to the press can constitute a crime and has warned of possible prosecutions. However, there were only three such indictments in the entire post-war period prior to the Obama Administration and there were no efforts to compel a journalist to testify about the "crime" of receiving information.
There was nothing in the campaign rhetoric of President Obama, nor in his transition team's comments on the one case pending at the time, that provided any hint that within his first term his administration would bring forward five new cases seeking criminal penalties under the espionage law, known as Section 793, for actions involving the provision of classified information to the press. The Obama Administration denies that it has adopted a new policy and points to the consistent public stand of all previous administrations. However, this more frequent use of section 793 and the expansion of the statute to compel journalists to testify as to sources raise serious First Amendment issues.
Because much of the information vital to public understanding of the national security decisions and actions of the government is classified -- and much of it improperly classified -- the public is dependent on information routinely provided to the press and to NGOs by government officials. If the Obama Administration succeeds in this effort to persuade the courts the section 793 covers leaks to the press and to compel reporters to reveal sources of information, the administration's commitment to increased transparency and accountability will be completely undermined; and the public's ability to monitor the behavior of the government, eviscerated. The same result would occur if Congress were to enact a statute making it a crime to publish information that the government has classified.
It is by no means clear that either effort will succeed. In fact there is considerable doubt that Congress has criminalized efforts by government officials to provide information to the press, except for very specific categories of information, and if it has or does, that such a statute can meet constitutional scrutiny given the breadth of over-classification. Nor is it clear that the First Amendment permits the government to compel a reporter to reveal a source when the only "crime" to which he or she is a witness, is the receipt of information.
In a perfect world, the Congress and the administration would retreat from these maximalist positions and accept that given the breadth of over-classification and the requirements of the First Amendment, actions to provide information to the public may be considered criminal only if Congress has enacted a narrow statute covering a specific and well-defined category of information meriting such protection and stating the circumstances under which either government officials or private citizens have committed a crime.
There is, however, no possibility that the administration will retreat from such a long held executive branch position, especially now that it is under criticism for not bringing indictments for other leaks to the press. The government's posture in the cases brought by the Obama Administration suggests that it may have learned from previous cases brought under section 793. For instance, the AIPAC case suggests that indictments brought against private citizens without security clearances cannot be sustained. The Drake case may have led to conclusions that the government should only issue indictments when the information revealed was rightly classified in that its disclosure would clearly harm the national interest.
In the short run, Congress will not legislate to prevent Section 793 from being used to punish efforts to publish information. Congress is in fact, much more likely to enact a statute which does make it a crime, at least for government officials, to disclose any classified information to the press. It must be urged to move slowly and deliberately.
Starting from the premise that more information must be made public and that the government has the right to keep some information secret in the name of national security, we need a public and congressional dialogue about what set of measures would be most effective in meeting these two equally important objectives. Reducing government secrecy must be a key component of any such measures. The government should also be able to take measures to administratively punish those who reveal critical information without authority while strengthening protections for whistleblowers. Finally, it would be appropriate for Congress to consider whether it should make it a crime for government officials to reveal other specific and narrow categories of information as it has done with atomic energy, communications intelligence, and the identities of covert agents. Any new legislation should be enacted only after full deliberations and public hearings by both the Judiciary and Intelligence Committees with the active participation of concerned public interest organizations. Any such effort should make it clear that Section 793 is not an appropriate means for seeking to punish disclosures to the press.
An area requiring immediate attention is the question of whether journalists can be compelled to testify before grand juries or at criminal trials about the sources of the information which they publish. The government is currently arguing in the Sterling case that courts should compel such testimony if the government is proceeding in good faith and if there are no other witnesses to the "crime" of providing the information to a reporter. This matter is before a federal appeals court and the outcome is uncertain. A serious effort should be made by the press and NGOs concerned with government secrecy to persuade the administration that it should accept two limitations, or at least one or the other. The first is that the courts should adopt a balancing test to determine if the disclosure was in the public interest. Alternatively, it should agree that the "crimes" to which a reporter can be compelled to testify should exclude those actions related solely to providing information to a reporter for publication. Irrespective of what the administration does, it is possible that the Supreme Court may be persuaded to accept one or both of these limitations.
If the administration refuses to retreat and the courts compel the testimony, there will be no choice but to advocate that Congress enact protection for journalists along the lines presented above.
It remains unclear why the administration has relied so much more than its predecessors on criminal penalties in dealing with leaks. One can only hope that the criticism it is receiving from multiple directions will persuade it to lead a serious public debate about how to most effectively balance the public right to know with the need to protect genuine secrets.
For more information, see the full text of Dr. Halperin's recent article on this subject, "Criminal Penalties for Disclosing Classified Information to the Press in the United States"