An official secrets act might keep Congress in the dark
COMMENTARY | August 25, 2006
Legislation aimed at criminalizing the disclosure of classified information is a threat not only to whistle blowers and the press but to Congress’s exercise of its own oversight function as well.
By Nick Schwellenbach
Though the Cold War saw a formidable spy apparatus marshaled against the United States (and one greater than anything al Qaeda could hope to develop), even in those vexing days our elected representatives consistently chose not to emulate one of the British government's more dubious contributions to jurisprudence: The Official Secrets Act. Originally passed by Parliament in 1911 and radically revised in 1989—the same year, ironically, as the Berlin Wall's crumbling heralded the hyper-secretive Soviet system's inevitable collapse—the Official Secrets Act is notable not merely for its expansive definition of "official secrets." The British law does not allow for circumstances when the disclosure of such secrets may be in the public interest and anyone in or out of government who discloses such secrets may be subject to criminal penalty.
America has contemplated such a law before, yet with starkly different results. When considering the Espionage Act of 1917 during World War I, Congress refused to give the President blanket authority to prohibit publication of classified information by criminalizing its disclosure during wartime. In 1957, Senator Norris Cotton (R-New Hampshire) championed a proposal to make unauthorized disclosures of classified information a crime. Again Congress refused.
It was nearly a half-century later when Senator Richard Shelby (R-Alabama) resurrected this heavy-handed idea—this time, with near-success. Then as now, under existing law only the unauthorized transmission of a narrow band of secrets—like cryptography methods and the identities of covert agents—come with criminal penalties. But in 2000, Senator Shelby presided over the quiet movement through Congress of a bill that would have criminalized the unauthorized disclosure of any classified information to the media and others. The bill passed—but died with a stroke of then-President Clinton's veto pen. Still enamored of the idea, Shelby reintroduced the bill again in 2001. Even in the wake of 9/11, no less an authority than then-Attorney General John Ashcroft told Shelby that his legislation was unnecessary, thus ending Shelby’s attempts to foist a dubious English legal import onto existing American law.
But on August 2, the possibility of an American Official Secrets Act reared its head once again. This time, it was sprung by Senator Christopher Bond (R-Missouri). Wrapped in the deceptively benign title, "A bill to prohibit the unauthorized disclosure of classified information," Bond’s legislation is identical to Shelby’s.
If ever there was a piece of legislation crying out for withdrawal, this is it. Intolerably broad and unneeded, it would deprive Congress and the public of critical information they should know by chilling disclosures of wrongdoing to the press.
For many, Bond’s legislation sounds reasonable. Shouldn’t “unauthorized” disclosures of information that could damage the United States be a crime? It is not so simple.
The First Amendment’s guarantee of free speech and a free press presents a formidable barrier to such a sweeping law. When Congress made it a felony to reveal the identities of covert CIA officers in 1982, this law met a constitutional test because it only narrowly interfered with the First Amendment and its role in securing free political discussion. As noted by National Security Archive director Thomas Blanton, Supreme Court Justice Antonin Scalia, then a law professor, testified before Congress, “The necessity of this particular, narrow category of disclosure [the identities of covert agents] to the free and open political debate which the First Amendment is intended primarily to assure” is “negligible.” By contrast, according to a recent Congressional Research Service report, “a statute that relies solely on the Executive’s classification of information to determine the need for its protection might be contested as overbroad.”
Bond’s Official Secrets Act does not require that the information even be classified for its disclosure to be a crime. As long as someone with official access to government information “has reason to believe” that information might be classified and discloses it, Bond would have that person subject to arrest and prosecution. Yet the Senator fails to enumerate any requirements that classified information be clearly marked to indicate its status, thus giving employees notice of their responsibilities. This law would invite abuse by wrongdoers in the executive branch who could prevent embarrassing or illegal activity from being discovered by classifying evidence of it after the fact and then prosecuting employees who bring it to light.
One could argue that if the secrets that truly needed to be protected from public disclosure were the only ones classified, Senator Bond’s legislation could be considered reasonable. But this is clearly not the case.
In 2004, Carol Haave, then-deputy undersecretary of defense for counterintelligence and security, testified that roughly 50 percent of classified information needn't be classified at all. Over the last five years, the number of Executive branch decisions to classify items has exceeded even the Cold War heights of secrecy in the early 1980s. Indeed, Peter L. Galison, a Harvard historian of science, has calculated that “the classified universe is, as best I can estimate, on the order of five to ten times larger than the open literature that finds its way to our libraries.”
While certainly some information, if leaked, could harm national security, the overheated rhetoric thrown around—such as Commentary magazine editor Gabriel Schoenfeld's exhortation that "failure to prosecute the [New York] Times [for its disclosure of the National Security Agency warrantless domestic surveillance program] would be a blow to the rule of law and bad for the war on terrorism"—should give way to the examination of real-world examples.
Case in point: Many—including former CIA director Porter Goss and Schoenfeld himself—have argued that the Washington Times and other media outlets tipped Osama bin Laden off to U.S. eavesdropping of his satellite phone. This charge has been soundly refuted. First, bin Laden advertised his use of a satellite phone to Time magazine in 1996; that he had such a phone was no secret and certainly not a leak. Secondly, the Al Qaeda leader did not cease using his phone until the day after American cruise missiles rained down on his Afghan bases in response to the 1998 bombings of U.S. embassies in Tanzania and Kenya.
Such basic reportage aside, press disclosures of classified information have overwhelmingly been in the public interest, and have led to a reexamination of government policies and actions. Had Bond’s law been in effect, Americans might never have learned about egregious acts: human rights abuses like the My Lai massacre; the secret government history of the Vietnam War known as the Pentagon Papers; Pentagon lies about multi-billion dollar weapon system cost overruns and test failures; Abu Ghraib prisoner abuse; the Iran-Contra operation where our government sold weapons to Iran during the 1980s; and security breaches leaving nuclear facilities vulnerable to terrorists.
Some believe that Congress can check the executive on its own without the press working to inform the public. History, however, does not support this contention. There are numerous cases where Congress has only been informed of at least dubious, if not unconstitutional and illegal, Executive branch machinations by the media.
For example, contrary to the National Security Act of 1947, the full congressional intelligence committees, including staffers whose expertise is crucial in achieving informed oversight, were not briefed on the NSA warrantless domestic surveillance—an intelligence collection program rather than a highly sensitive covert action—until it was exposed by the New York Times.
Revelations by the New Yorker and Washington Post of secret findings and executive orders by President Bush authorizing covert operations overseas run by the Pentagon, rather than the CIA, generated concern by Republican Senator Pat Roberts (Kansas), chairman of the Senate intelligence committee. Roberts said he was concerned that even as a member of the “Gang of Eight”—the handful of lawmakers who are supposed to be informed of covert operations in lieu of the full intelligence committees—he was not informed. Again the press spurred Congress to action in the face of the Executive’s attempt to evade accountability. Roberts told the Kansas City Star that if he was being left out of the loop, “That would be a problem, that will be a big problem…He (the president) has an obligation. We will be making inquiries.”
And then there is the fact that the Congressional intelligence committees themselves were created as a result of Congressional investigations sparked by press disclosures in the mid-1970s of massive intelligence operations targeted against American citizens.
After a cursory review of this history, it should come as no surprise that although numerous laws require that Congress be kept in the loop by the Executive branch, our lawmakers and overseers have consistently not been briefed by the White House. The current administration’s penchant for “signing statements”—the President’s official interpretation of the legislation he signs into law—that assert that the President may choose to flout the law and ignore Congress makes this clear. And in proposed intelligence reform language submitted by the President in 2004, in response to the 9/11 Commission report—and contrary to their recommendations—the administration sought exemptions from informing Congress about intelligence operations.
Given this administration’s callous disrespect for even a Congress dominated by the President’s own party, the legislative branch should not seek to chill disclosures to the press. The press can be a valuable guide for Congress in its vital but little exercised oversight role. A valuable guide that is, only if Congress does not criminalize disclosures of classified information that are in the public interest, while protecting secrets that could actually harm national security.
It is ironic that while Congress should be thankful to the press for greasing the wheels of our constitutional system, some lawmakers are seeking to sharply reduce their own ability to defend democracy and the public interest, and leave out in the cold those conscientious government employees who want to expose government malfeasance.
Supreme Court Justice Louis Brandeis once wrote, "Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." This astute observation is a warning that even the best intentioned measures to defend freedom can contain the seeds of its—and our—demise. Will we heed it?
Nick Schwellenbach is an investigator and blog editor at the Project On Government Oversight (POGO), an investigative non-profit organization in Washington, DC.
Deep Cover CIA, False Flag Op's & Foreign Policy
09/07/2006, 05:19 PM
The United States Air Force Colonel Edward Lansdale mentioned as the Chief of the Cuba Project in the National Security Archive's article, below, was a full time CIA Agent who was eventually promoted to the rank of General in the USAF for 'cover' purposes, as were all his previous promotions.
In early 1953, Lansdale, then posing as a USAF Lieutenant Colonel, was in charge of a false flag operation in the Philippines which fabricated the existence and threat of the HUK Communist guerrilla movement bent on the overthrow of the existing Philippine Government.
This ruse was accomplished with the same tactics outlined in the Northwoods document, below. The operation was successful and the hero of the operation was one Philippine Colonel Magsaysay who immediately became the new President of the Philippines. The previous president was balking at certain US requirements and had to be replaced.
There was no HUK anti government movement. It was purely a fantasy, orchestrated by Lansdale at the behest of the CIA.
Interesting to note: President Truman would have had a hissy fit if he knew of such an operation. Most learned folks don't believe he had a clue. Eisenhower was newly elected and although he had a great career in military administration, he had no combat experience nor any of the daring do of special operations.
This fabricated campaign began in early 1953 immediately after Eisenhower's inauguration.
After the success of the Philippine false flag operation, the HUK Campaign as it was known at the time, Lansdale was shipped off to become the Chief of the Military Mission in Saigon, in early 1954, as we had no Embassy there at the time and the Indo China war was still ongoing.
As Diem Bien Phu was falling to the Viet Minh, due to the fact that Eisenhower refused the French request for B-52 bomber support, (although not just a few CIA pilots were flying French marked aircraft for resupply of men and munitions for the doomed French position) Lansdale was cozying up to Diem, the newly US chosen first president of the newly created country of South Vietnam. Minh had just been plucked from a Catholic enclave in New Jersey.
By 1956, Lansdale had hatched a plan, with nods from Washington, to import 1.1 million North Vietnamese Catholics, using CIA proprietary aircraft and ships, to support the Diem Regime (Catholic) much to the angst of the Buddhist's who were the great majority in "South" Vietnam. The religious conflict set in motion by Lansdale evolved into the Second Indo China War; The Vietnam War.
By 1960, Lansdale was back in Washington, at the Pentagon, working in the Special Op's basement offices.
Lansdale found himself briefing President Kennedy on the updates of the War in Vietnam. Kennedy was so impressed with "Colonel" Lansdale that consideration for his appointment as Ambassador to Vietnam was discussed with Lansdale.
By 1962 Lansdale had been on the periphery of the Bay of Pigs fiasco, and, as noted in the Northwoods document, he recommended responsiblity for the overt and covert operations associated with Northwoods, be at the Joint Chief's of Staff. Therefore, if anything went wrong, the blame would not go to the CIA, again. And, Kennedy had already placed responsibility for all para-military operations in the Pentagon, unknowingly infiltrated by deep cover CIA Agents such as Lansdale.
By 1963, Lansdale had not been chosen as the new Ambassador to Vietnam but he was still closely associated with President Diem.
October, 1963 found Diem assassinated, along with his brother and his brothers wife.
Novemeber 22, 1963 found Ed Lansdale in Dallas, Texas, in civilian clothes, photographed walking by the three "tramps" being escorted by shotgun toting "police". The "tramps" were later identified as future Watergate Burgler E Howard Hunt and two Cubans also arrested during the break-in at the Democratic Headquarters.
So, this bit of history begs the question: Who is the new "Lansdale" and what is the next false flag operation to justify the preemptive attacks on Syria and Iran? Or the next batch of assassinations?