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Leaks keep the ship of state afloat
Inside the First Amendment

By Paul K. McMasters
First Amendment Center ombudsman
11.20.05

The recent revelation that for the past four years the CIA has operated a “covert prison system” in Eastern Europe for the interrogation of terrorism suspects has prompted angry demands for investigations — not of the interrogation prisons but of the leak of classified information that brought the system to light.

Shortly after Dana Priest’s article appeared on the front page of The Washington Post, the CIA sent a letter to the Justice Department requesting an investigation into the leak that made the “black sites” story possible. A few days later, Senate Majority Leader Bill Frist and House Speaker Dennis Hastert fired off a letter to the chairs of their respective intelligence committees, demanding they launch an immediate probe into the source of the leak.

They may not have far to look. On Nov. 8, CNN reported that former Senate Majority Leader Trent Lott pegged the possible source of the information as someone privy to a closed-door briefing for Republican senators by Vice President Cheney.

That would not surprise veteran journalists on the nation’s capital beat. They will tell you that leaks of sensitive information regularly spurt from the offices of high officials and their staffs in both the executive and legislative branches of the federal government.

As investigative journalist and government-secrecy expert Scott Armstrong has described it, “the ship of state leaks from the top.”

Little noticed in the uproar over the secret-prisons leak was news that the government had ended its investigation into a leak four years ago about two classified messages intercepted by the National Security Agency on the eve of the 9/11 terror attacks. The target of inquiries by both the Justice Department and the Senate Ethics Committee: Sen. Richard Shelby, R-Ala., a member of the intelligence committee at the time.

Then there is the long-running saga of Valerie Plame, the CIA operative exposed by sources in the White House. Lawyers for I. Lewis “Scooter” Libby, the vice president’s former chief of staff indicted for obstructing the investigation into that leak, are exploring some ominous options. They may want to compel reporters other than the three immediately involved to testify — without any of the limits agreed to by the special prosecutor in the grand jury probe.

What began as a leak has turned into a flood of alarming and unanticipated consequences for the public, the press, the courts and the federal government.

Is this any way to run a railroad, let alone the ship of state?

Why do government insiders leak sensitive information? Why do journalists grant confidentiality to such sources and then suffer painfully, including going to jail, to protect those sources?

The answer is no big secret — or rather, it’s too many secrets. Over-classification of material, ever-more restrictions on unclassified information and increasingly sophisticated news-management techniques combine to allow top officials unacceptable control over information that goes out to the citizenry.

This culture of secrecy in the federal government expands every day.

For example, legislation moving quickly though the U.S. Senate right now would create a new agency called the Biomedical Advanced Research and Development Agency to encourage private industry to develop countermeasures to bio-terrorism attacks or disease outbreaks.

Despite giving the agency sweeping powers and lots of money, a recipe for abuse that begs for oversight, the bill would exempt the entire agency from federal open-records and open-meetings laws. No other agency or department in the government has such an exemption, including the departments of Homeland Security and Defense and the CIA.

Over at the Environmental Protection Agency, officials are proposing dramatic changes in the frequency and scope of the Toxic Release Inventory, which has been indispensable in reducing the deadly poisons released into air, water and land. If the rules are implemented, more than 4,000 plants and facilities would no longer have to report toxic-release details and more than 2,000 communities would be denied specific information on half of the chemicals threatening their citizens.

There is a constant clamping of such restrictions on the public’s need to know.

Without an elaborate system for circumventing secrecy and information management and manipulation, there would be no way or no one to hold accountable those entrusted with our government.

Without unofficial sources of information, there would be no context for the “official message.”

Without government insiders who leak information to the press, which passes it on to the public, government officials’ control over information flow would be near-absolute. That would threaten severe damage to the machinery of government and the promise of democracy.

Certainly, a “leak system” is ponderous, frustrating, costly and counterintuitive for a nation that values its democratic traditions. But it is absolutely essential as long as our leaders keep secrets that don’t need to be kept, and as long as they can’t resist putting themselves in the best light by keeping the rest of us in the dark.

Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail: pmcmasters@fac.org.


Related

Justice Department mulls probe into secret-prisons leak

CIA asks agency to open criminal investigation, while GOP House, Senate leaders call for congressional inquiry after Washington Post publishes story on covert detention centers. 11.09.05

2nd Time reporter to testify in CIA leak case
Viveca Novak has agreed to cooperate with special counsel and discuss conversations she had with White House aide Karl Rove's attorney. 11.28.05

Prosecutor, 2nd Time reporter meet in CIA leak probe
Patrick Fitzgerald has been seeking testimony from Viveca Novak about her conversations with Karl Rove's attorney. 12.09.05

Bob Novak claims president knows CIA leak source
Meanwhile, Sen. Charles Schumer is urging Bush to identify Novak's source or to say that he does not know who it is. 12.15.05

Libby's lawyers seek to subpoena reporters' records
Court filing indicates that large part of defense's trial strategy will be identifying other officials who knew Valerie Plame was CIA operative and told reporters about it. 01.23.06

CIA leak trial set for after midterm elections
Federal judge said he had hoped to start in September but one of Lewis Libby's attorneys had scheduling conflict. 02.03.06

Libby: White House superiors authorized leaks
Lawyer for former top Cheney aide says 'no truth at all' to suggestions that his client would try to shift blame as defense against charges. 02.10.06

Cheney says he has power to declassify government information
Speaking about former chief of staff charged in CIA leak case, vice president points to executive order for authority to release data. 02.16.06

News-media lawyers say Libby subpoenas threaten integrity of press
Federal judge asked to block subpoenas seeking drafts of articles, e-mails, notes generated by reporters besides the three involved in CIA leak case. 04.19.06

CIA fires intelligence analyst for alleged press leaks
Government officials say employee has admitted leaking classified information that led to Pulitzer Prize-winning story about network of secret prisons. 04.24.06

Prosecutors in Hollywood wiretap case want to plug leaks
Assistant U.S. attorney also confirms that Justice Department is investigating leaks of FBI reports to New York Times. 05.03.06

Too much secrecy is a challenge to justice
By Paul K. McMasters Courts are under enormous pressure to keep vast array of information out of the sight of ordinary citizens. 12.18.05

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