Leaks are a currency of politics. To leak is to boost one policy or bash another, to promote a pal or punish a political foe. It is the common practice of too many in Congress and the Executive Branch. A leak of a photo taken by a spy satellite may have less value than one about who is sleeping with whom. But both are potentially good stories, and the fact that publishing one may release classified information to the bad guys isn't considered nearly enough.
We are in a war, and leaks are a constant problem for the CIA, NSA, and everyone else in the intelligence business. The problem has become so acute that the CIA has floated what should be an astounding trial balloon.
James Bruce of the CIA's Foreign Denial and Deception Committee argues for new laws to prevent future damaging leaks. In a policy memo entitled, "The Consequences of Permissive Neglect," Bruce says new laws should "[h]old government leakers accountable for providing classified intelligence to persons who do not have authorized access to that information, irrespective of intent; and hold unauthorized recipients accountable for publishing information that they know to be classified." From Congress and the press there is silence, the worst possible reaction.
In these days of 24/7 news, there's little discretion exercised, and there is little incentive for reporters to assess what harm can come from publishing a leak. People in the media believe that leaks are both good for democracy and not very damaging. Bruce says this, too, is wrong: "The view that leaks are harmless is further nourished by other popular myths that the government over-classifies everything -- including intelligence -- and classifies way too much. This seduction has become a creed among uncleared, anti-secrecy proponents." In my long career in and out of government, I have held some of the highest security clearances there are. I can't speak as an intelligence professional, but the press is right in saying that too much gets classified. But Bruce is also right -- terribly so -- in saying that leaks are damaging national security severely.
Bruce gives a list of damaging leaks, some chilling examples. On 20 June 2002, Ari Fleischer said at a White House briefing:
"In 1998… as a result of an inappropriate leak of NSA information, it was revealed about NSA being able to listen to Osama bin Laden on his satellite phone. As a result of the disclosure, he stopped using it. As a result of the public disclosure, the United States was denied the opportunity to monitor and gain information that could have been very valuable for protecting our country."
That example hits hard, because the story Fleischer referred to was in the conservative Washington Times, by reporter Bill Gertz. If something this important is leaked to a conservative paper, and it chooses to publish it regardless of the likely effect, what can you expect from the rest?
As Bruce says, the problem is much bigger: "What the public cannot easily know…is that the bin Laden example cited here is just the tip of the iceberg. In recent years, all intelligence agencies -- CIA, NSA, NIMA, NRO, and the Defense Intelligence Agency, to cite just the larger ones -- have lost important collection capabilities, including against high-value terrorist targets."
There are two parts of this problem: the leakers and the media. With regard to the leakers, I side with Bruce. The laws against leaking classified information are convoluted and unenforceable. Let's rewrite these laws to make them clear, and to ensure harsh punishment of those in the government -- Congress included -- who leak classified information. Bruce is wrong, though, about jailing reporters and editors, and fining companies so hugely that they will stop their presses.
There are four freedoms guaranteed by the First Amendment: freedom of religion, freedom of the press, freedom of assembly and freedom to petition the government for redress. It's no accident that these four are in the First Amendment. The Founding Fathers understood that they are the foundation on which all the others stand. Like a nuclear weapon, a First Amendment change is the last resort. We may someday have to face it, but I believe there is another answer to Bruce's concerns that has not been tried: strict self-censorship by the press. Quit laughing, dammit.
Teaching the press to police itself will probably be as productive as teaching a pig to sing. But we have to try. The press' problems these days only begin with credibility. Journalists are beset by bias, diversity, and every crank political idea that has come up in the past thirty years. What the press has to learn is responsibility.
Many journalists learned about operational security while embedded with our troops in Iraq. They were allowed to report things that happened, but were forbidden to talk about locations, planned operations, and in some cases even the identities of the units they were with. All of them -- with the horrific exception of Jerry Rivers (aka Geraldo Rivera) -- accepted the responsibility that came with the privilege of battlefield reporting. This lesson needs to be translated and implemented for all who scribble here.
There is a responsibility that comes with each freedom, and freedom of the press is no exception. Every journalist has the duty to determine if the story he is about to publish will give away national security information that could benefit our enemies.
The problem with self-policing is that almost none of the people in the press have any way to gauge the criticality of the classified information they are given. To meet the pressures of deadlines and competition, this self-policing mechanism would have to include people who were involved in classified matters. Here's one way to do it.
First, all of the television and radio networks, newspapers and magazines would enter into a written contract with each other. That contract would provide that they would train their editors and reporters to treat classified information differently from other facts that come into their possession. Every news reporter, columnist, and broadcaster would be required to agree to submit the question of publishing any information known or suspected to be classified to a committee established by the industry. Any failure to do so resulting in publication of classified information would result in instant dismissal and blackballing from journalism.
Next, DoD could grant security clearances to a committee of say, a dozen retired editors, broadcasters and consultants. These consultants -- who would be on the committee in equal number to the journalists -- would be hired from among the retired intelligence and defense communities. They would be sworn to not leak anything to any news media, at any time, and their duty would be as a fiduciary. Any breach of it would be sanctionable in court, and with permanent loss of their security clearance. To operate, the committee would be given a SCIF - a sensitive compartmented information facility -- secure phones and agree to be on call 24/7.
Anytime a reporter, an editor or a broadcaster was leaked classified information -- or information, such as what Bill Gertz reported that should be recognizable as classified even if not so labeled by the source -- the leak would be tossed to the Classified Reporting Committee. They would read it, confer on it, and vote -- all within two hours -- on whether it should be published. Any report not having a two-thirds vote in favor of publication would be spiked.
The Committee's members will have vastly different views on many leaks. But their decision would be final, and all the media would agree to abide by it. No appeals, no second chances, and no quibbling.
This system won't be perfect, and not many in the press will want to abide by any system that gives editorial control to anyone outside their publication. But with freedom comes responsibility. I'd rather accept the responsibility than risk losing the freedom.