Congress is moving to stem leaks to the media. The Senate Intelligence Committee recently drafted legislation that would bar former intelligence officials from speaking to news organizations or working for them after leaving their government posts. But more action is needed: Congress should follow the legislatures of other leading democracies and pass an official state-secrets act. It not only would limit the leakers but also prevent the media from publishing information that is likely to cause major damage to national security.
Ever since the Supreme Court allowed The New York Times and Washington Post to publish the Pentagon Papers in 1971, the media has assumed that nobody can stop it from publishing whatever information it acquires. The court then merely established that, “any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity” and that the government “thus carries a heavy burden of showing justification for the imposition of such a restraint.” However damaging recent leaks may have been—when the lives of dozens of CIA agents were directly threatened and our ability to stop a nuclear attack from Iran has been undermined—the “burden” has been deemed too light, and the freedom of the press has been allowed to trump national security.
The Iran situation is particularly illuminating. Both presidents George W. Bush and Barack Obama repeatedly have declared that an Iran equipped with nuclear arms is “unacceptable.” In 2007, a U.S. National Intelligence Estimate declared that “by ‘nuclear weapons program’ we mean Iran’s nuclear weapons design and weaponization work.” Now the Obama administration seems to draw the line at a decision by Iran to actually assemble a bomb. The Washington Post recently quoted a senior U.S. official as stating that, “there is confidence that we would see activity indicating that a decision had been made.”
But our ability to “see” such a decision in the making has been compromised though a recent leak, which revealed that U.S. government agencies have developed the capacity to control the microphones and cameras of computers at any place and any time. One must assume that, as a result, leaders in Tehran will make their decisions not merely in a secure room but in one that has neither computers nor phones—and maybe not even a toaster. Hence, this particular leak may have significantly undermined our capacity to discover Iran’s decision to dart forward and assemble a bomb and thus vastly increased the challenge we face in stopping such weaponization.
The Economist recently revealed that the CIA is training special forces in Jordan to grab Syria’s chemical weapons if they were about to fall into the hands of terrorists or were about to be used against the rebels. I cannot see what the readers of that magazine have gained from knowing about this mission before it is carried out (if it ever is), but I can see major damage to U.S. core interests and the people of Syria if, as a result, Assad or the terrorists finds out what specific countermeasures they should watch for. When the damage of a publication can be that significant, there should be ways to prevent it.
True, there were occasions in the past in which the White House called the publishers or editors of our leading newspapers and explained to them that the publication of given material would damage U.S. security and cost lives. It was then left to each editor to decide whether to run the story, delay its publication or bury it. Sometimes they chose one course, sometimes another. But one hardly can feel that national security is well attended to when such momentous decisions are left in the hands of individuals who have no training in national-security matters and whose interest lies in getting the word out before the competition. Even if one could formerly rely on the small group of publishers of major newspapers, today the media has become much more segmented and diverse. It seems ill-advised to rely on the responsible conduct of so many individuals.
Other democracies have attended to this matter. The Canadian Official Secrets Act makes it “inconceivable, for example, that Canadian newspapers would publish the equivalent of the American Pentagon papers on the Vietnam war, as occurred in the United States.” In such a situation in Canada, both the press and those involved in providing the documents would be open to prosecution under the Official Secrets Act. Editors and publishers could be given long jail terms.
In Great Britain, the Official Secrets Act of 1989 prohibits the disclosure of defense, intelligence and diplomatic secrets by crown servants, members of the security and intelligence services, and government contractors. Journalists who publish leaked confidential information also can be prosecuted. In recent years, police have raided journalists’ offices and homes in search of documents, pressured them to reveal their sources and threatened them with prosecution if they proceed with publication.
Some oppose an official U.S. state-secrets act, fearing that it will be used by the government to prevent the publication of information that it finds embarrassing rather than truly damaging to national security. This can be avoided by including in the act a “public-interest defense.” Such a measure would allow whistleblowers and those who seek to publish—or have published—state secrets to argue that the only harm was to corrupt or incompetent public servants.
No right is absolute, even the freedom of the press. The constitution is not a suicide pact, as Judge Robert A. Jackson famously put it. As we face mounting challenges to our security and a wild assortment of media outlets, the time has come to provide the public with new tools to protect our security from devastating damages.
Amitai Etzioni is a professor of international affairs at The George Washington University. His newest book, Hot Spots: American Foreign Policy in a Post-Human-Rights World, will be published by Transaction in October 2012.