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by David Wise


Most Americans possess classified information, whether they know it or not.

Unencumbered by a 1st Amendment, Britain for almost 100 years has had an Official Secrets Act to prevent leaks to the media and to prosecute offenders, including journalists.

Some Bush administration officials and members of Congress are casting a longing eye at the British law. If only the United States had a similar law, their reasoning goes, the reporters who revealed CIA-run prisons in Eastern Europe and the National Security Agency's warrantless wiretapping of terrorism suspects would be prosecuted instead of receiving Pulitzer Prizes.

The Constitution remains a barrier to those who would restrict the flow of information to the media -- and thus to the public. But administration policies are gradually chipping away at its protections. The nation is in danger of having an Official Secrets Act not through passage of a law -- although that is still a possibility -- but through incremental steps.

The evidence is mounting:

Although the indictment of the two lobbyists for the American Israel Public Affairs Committee is replete with references to "classified information," the espionage laws, with one narrow exception, refer only to "information relating to the national defense." The spy laws were passed in 1917 during World War I. A 1951 presidential executive order created the current system of classifying documents.

There is no law specifically prohibiting leaks, so the government has used the espionage laws to try to combat the practice. President Clinton vetoed anti-leak legislation passed in 2000 that would have made it a crime for a government official to disclose classified information.

To criminalize leaks of government information simply because the information is marked "classified" is absurd on its face. In 2004, the most recent year for which figures are available, the government classified 15,294,087 documents. It is hardly likely that the government has that many real secrets to withhold from its citizens.

Unnecessarily classifying documents is a fact of life in Washington. Many bureaucrats know that unless they stamp a document "secret" or "top secret," their superiors may not even bother to read it. One government agency classified the fact that water does not flow uphill. During World War II, the Army labeled the bow and arrow as a secret, calling it a "silent flashless weapon."

The government's theory in the lobbyists' prosecution could, if it stands, change the nature of how news is gathered in Washington and how lobbyists and academics interact with the government.

"What makes the AIPAC case so alarming," said Steven Aftergood, director of the Project on Government Secrecy of the Federation of American Scientists, "is the defendants are not being charged with being agents of a foreign power but with receiving classified information without authorization. Most Americans who read the newspaper are also in possession of classified information, whether they know it or not. The scope of the charges is incredibly broad."

Officials in Washington talk to reporters every day about matters that may, in some government file cabinet, in some agency, somewhere, be stamped with a secrecy classification. How would a journalist be expected to know that he or she was a "recipient" of classified information, and in theory subject to prosecution under a law that was meant to catch spies?

The original British Official Secrets Act, passed in 1911, allowed the crown to prosecute anyone, even a journalist, who published a railroad timetable. The act was made less draconian in 1989, but it still carries tough provisions and can apply to journalists.

Fleet Street also is guided by Defense Advisory Notices that warn the media against publishing data about military operations, nuclear or other weapons, codes, "sensitive installations" or the intelligence services.

At least until recently, the U.S. government applied the espionage laws to officials who leaked, not to the recipients. "Otherwise," Aftergood said, "Bob Woodward would not be a wealthy, bestselling author. He would be serving a life sentence."

David Wise writes frequently about intelligence and secrecy. He is the author of "Spy: The Inside Story of How the FBI's Robert Hanssen Betrayed America." This article appeared as an Op-Ed piece in the Los Angeles Times
( la-op-wise30apr30,0,2856360.story?coll=la-sunday-commentary) April 30, 2006.


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