Montréal, 11 novembre 2000  /  No 71
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Ralph Maddocks is a retired textile executive and former management consultant. He lives in Cowansville.
by Ralph Maddocks
          The other day I came across an item in a US newspaper referring to the fact that President Clinton, presumably between cavorting with his aides, was pondering signature of a bill called the Intelligence Authorization Act for Fiscal Year 2001. On the surface, it is probably the sort of thing one expects presidents of countries to be doing, at least when not engaged in more pleasurable pursuits. However this particular legislative act represented a change in the traditional thinking of US governments.
Filling the gap 
          Buried in this Intelligence Authorization Act for Fiscal Year 2001 is Section 303 which seems to have been placed there to fill in a few holes and close a few so-called escape hatches in the federal government's laws concerning disclosure of information which it feels to be in the interest of national security. Effectively Section 303: 
          [C]reates a basis in law for prosecuting the knowing and willful unauthorized disclosure of classified information to a person not authorized to receive that information. This section closes the gap in existing law for the unauthorized disclosing of classified information. 
          In the past we have seen much sensitive material disclosed, information such as the Pentagon Papers and all that stuff about Iran-Contra and more. So it may not surprise the more wide-awake among us that politicians upon seeing this « gap » must rush in to fill it. Long ago we learned that Nature abhors a vacuum, political nature is no different. 
          The gap to be closed really means that those penalties applied normally to disclosures of information considered vital to the national security interest, may now be extended to any piece of data that any official may consider too embarrassing or too inconvenient to be released to the public. 
          The Republican Representative from Georgia, Bob Barr, a former CIA analyst himself, was quoted by the Washington Post as saying: « This legislation contains a provision that will create – make no mistake about it, with not one day of hearings, without one moment of public debate, without one witness – an official secrets act. »  
          Indeed, this legislation appears to be similar in intent to the British government's Official Secrets Act. A piece of legislation that the British government uses to silence anyone they suspect of leaking information of a secret or embarrassing nature. Not necessarily secret or damaging to the national interest, it could be just embarrassing. The British Act forbids the « reporting » of information, but this US intelligence appropriations act doesn't actually ban the printing of forbidden material – it cannot, because of the First Amendment – it does however create a difficult situation for journalists who receive and publish information which has been leaked. Some organizations who have spoken out against the proposed new restrictions predicted that journalists would now be obliged to reveal their sources. Those who, for ethical reasons, refuse to reveal their sources may well find themselves incarcerated for contempt. 
          One of the arguments made in support of this new measure was that there had been a news report to the effect that one of the US intelligence authorities was monitoring Osama ben Laden's satellite telephone calls, thus causing him to switch to some other means of communication. One might question the innate intelligence of any so-called intelligence service that underestimated its opponents to the point that they believe leaks to newspaper reporters would produce such an effect. Surely, Mr. ben Laden, if he is a clever as they say he is, could well have arrived at this conclusion all on his own. Everyone knows that the US intelligence agencies are monitoring, on a world-wide basis, all faxes, phone calls and e-mails through their Echelon system (see BIG BROTHER HAS BEEN AROUND FOR A LONG TIME, le QL, no 20). Perhaps nobody told the US House Select Intelligence Committee (an oxymoron if ever there was one) which drafted this legislation that this was going on.  
          Even the Chairman of the House Judiciary Committee, Henry Hyde, opposed the bill saying that: « To put a three-year – up to a three year – felony sentence for leaking information that doesn't affect our national defence, our national security is overkill. » Hyde also said that the person leaking the information about ben Laden could have been prosecuted under existing law anyway. Current US law makes it a crime to release classified information if it helps a foreign power, exposes intelligence agents or relates to national defence. 
Meanwhile... in England 
          Recently, William Cohen, the Secretary of Defence, complained about the constant leakage of information from the Pentagon and related that he had read personal memos addressed to him in the press before they came to his desk. Cohen also warned that anti-Western terrorist groups could begin striking at US targets and that his fellow citizens may be pressured into giving up some of their cherished personal freedoms.  
          The British Official Secrets Act has no such qualms about the personal freedoms of its citizens. The objective of the Act seems to be to protect the guilty at all times. It is not at all concerned with fears that the Act may suppress any real wrongdoing on the part of any government employee.  
     « Nowhere in the UK Official Secrets Act can be found the words public interest. A civil servant or a journalist could reveal information about behaviour so monumentally disgraceful and so completely unacceptable that no minister would dare defend it. » 
          Such concerns were raised when the government's white paper dealing with reform of the Act appeared in June 1988. The most notable response at the time was the extravagance of the language used to defend the reforms. Mr. Hurd, Home Secretary at the time, described it as « an essay in openness which has no parallel in the history of our government since the war », « a substantial and unprecedented thrust in the direction of greater openness », « a charter for liberty » and « an earthquake in Whitehall ». 
          In reality, the bill did nothing at all to increase public access to information. The bill in itself did not lead to the disclosure of even a single item of information that was not then available. The Home Secretary's comments implied that because some kinds of information – for example on education, housing or the environment – were being removed from the protection of the criminal law, more of it will reach the public. It did not.  
          Other, generally more immediate, deterrents – such as the threat of dismissal – continue to operate against unauthorised disclosures. Of course, ministers could always decide to authorise much greater disclosure; or even create new legal rights of access to information. But no indication has ever been given that such changes were ever planned or implemented. The bill itself tightened control over protected information. If it was restricted to the most sensitive, highly classified military information, this may be no bad thing. In reality though, the bill covers great areas of information – much of it relatively low grade. 
Stop the Press! 
          The protected classes of information cover: international relations; information supplied in confidence by other governments and international organisations; defence; security and intelligence; the interception of communications; and information likely to impede law enforcement or lead to crime. The bill applies to unauthorised disclosures by civil servants or others who acquire information through official duties (such as the police, members of the armed services, and presumably even government ministers) or as government contractors. It also covers journalists or any member of the public who obtains protected information that has been disclosed without authority. Even if the information reached you indirectly (after passing through the hands of several other persons, or even if you read it in a newspaper) it could still be an offence to pass it on. 
          No defence of prior publication was proposed. In areas covered by absolute offences – offences such as wiretapping by the police or by Customs and Excise, or by actions taken by the security service under a warrant – every repetition of previously published information however widely known it has become became a new offence. This successfully enshrined in law the argument which the Thatcher government advanced unsuccessfully in the Spycatcher case. An argument which, at the time, prompted one of the Law Lords, Lord Griffiths, to comment: « If such was the law then the law would indeed be an ass ». 
          In several areas, the new offences created did not depend upon evidence that disclosure caused specific harm. A journalist may be convicted and imprisoned without any evidence that he or she has harmed basic national interests – or indeed done any damage at all. In other areas, the offence depends upon evidence that a disclosure is likely to cause harm. This applies particularly to disclosures about defence, international relations and law enforcement. Ministers at the time said that the law would be used sparingly and wisely. However, given their unceasing efforts to prevent the British public reading a book freely available all over the world, there is considerable room for doubt on this point. 
          If all possible harm has been done by the initial disclosure, it is not an offence to repeat the information. But if further harm is possible, then any repetition of the information could become a new offence. The question is: how can a newspaper know whether all the potential harm attached to a story has already taken place? A national paper will not be in a position to know whether giving wide publicity to an item published in a small local paper could lead to further harm, and prosecution. Papers are thus reluctant to repeat information already in the public domain. The outcome being to follow ones lawyer's advice, play it safe and keep quiet.  
          The British press has become rather quiescent as a result and much information of a potentially embarrassing nature to the government rarely sees the light of day. The present UK government, probably because the matter could not qualify under the Official Secrets Act, embargoed the Cullen report (about the Dunblane shooting tragedy) for a hundred years, an unprecedented move when one considers that much of the secret activities during WWII have already been published. 
          Nowhere in the UK Official Secrets Act can be found the words public interest. A civil servant or a journalist could reveal information about behaviour so monumentally disgraceful and so completely unacceptable that no minister would dare defend it. Everyone in a position to get involved may have failed to act in accordance with their duties, yet the person who finally exposes the matter risks imprisonment; having no chance to justify the disclosure.  
          In the USA there is a « whistle blower » law where a civil servant can take up such matters with the US Office of Special Counsel whose mission it is to investigate the validity of the claim and, if found to be true, protect that person from harassment or dismissal. 
          On Saturday November 4th, Mr. Clinton finally vetoed Section 302 of the Intelligence Authorization Act. To deflect charges that his administration was weak on security the President said that « What is in dispute is not the gravity of the problem, but the best way to respond to it » and he called upon Congress to draft « a more narrowly drawn provision ». To make clear that he meant what he said and to avoid any legal questions, he returned the measure to Capitol Hill. The funding of intelligence activities was not affected by the veto because a backup authorization provision was passed as part of the 2001 Defense Appropriations Bill that President Clinton has signed. 
          Now the CIA and its friends in the House will have a chance to present their ideas again to the newly elected president whoever that may turn out to be. 
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