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September 28, 2003

A US "Official Secrets" Act

Read this article about the attempt by Ashcroft to criminal leaks to the press.

The article is by John Dean (yes that John Dean) who knows of what he speaks about the executive branch quashing press freedom, as the Pentagon Papers prosecution methods are exactly what Ashcroft is seeking to revive.

The key here is that Ashcroft is not looking for new legislation, a la the Patriot Act. Instead, he seeking to twist the meaning of a combination of statutes to create an "Official Secrets Act" that the Congress deliberately DID NOT create.

Congressional Rejection of "Official Secrets": Back in 1917, the Congress passed the Espionage Act to criminalize passing government information to the enemy, but voted down a proposal by President Wilson to more broadly criminalize leaks. As the lead opponent of the proposal in the Senate stated, ""Once before in the history of this Government we undertook to establish something in the nature of an abridgment of speech and of the press. It was a complete and ignominious failure."

So when the Nixon White House sought to prosecute Daniel Ellsberg for leading the Pentagon Papers, they tried to charge him with "theft of government property", as if the President has a copyright on documentation of his lies or incompetence.

A Bad Precedent: That case was dismissed because of government misconduct, but a similar case was successful in 1987 -- against the leaker of satellite photos of a Soviet nuclear sub to Jane's Defense Weekly.

Using that precedent Ashcroft is gearing up to prosecute any executive branch member who leaks information that the administration doesn't want leaked-- in the most recent instance information damaging to a wealthy Brit who bankrolls the Conservative Party.

With the new documentation that White House officials deliberately blew the cover of a CIA agent to punish the agent's husband, ambassor Joseph Wilson-- who had dared to publicly challenge Bush's claim that Iraq had "yellowcake" uranium ore -- one wonders if the same energy to prosecute leaks of lower-level officials will extend to the White House. (Especially since there is actually a specific law making revealing the identity of an agent a crime-- unlike the more generalized and unintended prosecution of regular leaks.)

Officials should be fired for general leaks if they undermine public integrity, but selective criminal prosecution of leaks is just a recipe for the government to bury its own malfeasance.

Posted by Nathan at September 28, 2003 01:19 PM