|Montréal, 11 novembre 2000 / No 71||
by Ralph Maddocks
The other day I came across an item in a US newspaper referring to the fact that President Clinton, presumably between cavorting with his aides, was pondering signature of a bill called the Intelligence Authorization Act for Fiscal Year 2001. On the surface, it is probably the sort of thing one expects presidents of countries to be doing, at least when not engaged in more pleasurable pursuits. However this particular legislative act represented a change in the traditional thinking of US governments.
Buried in this Intelligence Authorization Act for Fiscal Year 2001 is Section 303 which seems to have been placed there to fill in a few holes and close a few so-called escape hatches in the federal government's laws concerning disclosure of information which it feels to be in the interest of national security. Effectively Section 303:
[C]reates a basis in law for prosecuting the knowing and willful unauthorized disclosure of classified information to a person not authorized to receive that information. This section closes the gap in existing law for the unauthorized disclosing of classified information.In the past we have seen much sensitive material disclosed, information such as the Pentagon Papers and all that stuff about Iran-Contra and more. So it may not surprise the more wide-awake among us that politicians upon seeing this
The gap to be closed really means that those penalties applied normally to disclosures of information considered vital to the national security interest, may now be extended to any piece of data that any official may consider too embarrassing or too inconvenient to be released to the public.
The Republican Representative from Georgia, Bob Barr, a former CIA analyst himself, was quoted by the Washington Post as saying:
Indeed, this legislation appears to be similar in intent to the British government's Official Secrets Act. A piece of legislation that the British government uses to silence anyone they suspect of leaking information of a secret or embarrassing nature. Not necessarily secret or damaging to the national interest, it could be just embarrassing. The British Act forbids the
One of the arguments made in support of this new measure was that there had been a news report to the effect that one of the US intelligence authorities was monitoring Osama ben Laden's satellite telephone calls, thus causing him to switch to some other means of communication. One might question the innate intelligence of any so-called intelligence service that underestimated its opponents to the point that they believe leaks to newspaper reporters would produce such an effect. Surely,
Even the Chairman of the House Judiciary Committee, Henry Hyde, opposed the bill saying that:
Meanwhile... in England
Recently, William Cohen, the Secretary of Defence, complained about the constant leakage of information from the Pentagon and related that he had read personal memos addressed to him in the press before they came to his desk. Cohen also warned that anti-Western terrorist groups could begin striking at US targets and that his fellow citizens may be pressured into giving up some of their cherished personal freedoms.
The British Official Secrets Act has no such qualms about the personal freedoms of its citizens. The objective of the Act seems to be to protect the guilty at all times. It is not at all concerned with fears that the Act may suppress any real wrongdoing on the part of any government employee.
Such concerns were raised when the government's white paper dealing with reform of the Act appeared in June 1988. The most notable response at the time was the extravagance of the language used to defend the reforms. Mr. Hurd, Home Secretary at the time, described it as
In reality, the bill did nothing at all to increase public access to information. The bill in itself did not lead to the disclosure of even a single item of information that was not then available. The Home Secretary's comments implied that because some kinds of information – for example on education, housing or the environment – were being removed from the protection of the criminal law, more of it will reach the public. It did not.
Other, generally more immediate, deterrents – such as the threat of dismissal – continue to operate against unauthorised disclosures. Of course, ministers could always decide to authorise much greater disclosure; or even create new legal rights of access to information. But no indication has ever been given that such changes were ever planned or implemented. The bill itself tightened control over protected information. If it was restricted to the most sensitive, highly classified military information, this may be no bad thing. In reality though, the bill covers great areas of information – much of it relatively low grade.
Stop the Press!
The protected classes of information cover: international relations; information supplied in confidence by other governments and international organisations; defence; security and intelligence; the interception of communications; and information likely to impede law enforcement or lead to crime. The bill applies to unauthorised disclosures by civil servants or others who acquire information through official duties (such as the police, members of the armed services, and presumably even government ministers) or as government contractors. It also covers journalists or any member of the public who obtains protected information that has been disclosed without authority. Even if the information reached you indirectly (after passing through the hands of several other persons, or even if you read it in a newspaper) it could still be an offence to pass it on.
No defence of prior publication was proposed. In areas covered by absolute offences – offences such as wiretapping by the police or by Customs and Excise, or by actions taken by the security service under a warrant – every repetition of previously published information however widely known it has become became a new offence. This successfully enshrined in law the argument which the Thatcher government advanced unsuccessfully in the Spycatcher case. An argument which, at the time, prompted one of the Law Lords, Lord Griffiths, to comment:
In several areas, the new offences created did not depend upon evidence that disclosure caused specific harm. A journalist may be convicted and imprisoned without any evidence that he or she has harmed basic national interests – or indeed done any damage at all. In other areas, the offence depends upon evidence that a disclosure is likely to cause harm. This applies particularly to disclosures about defence, international relations and law enforcement. Ministers at the time said that the law would be used sparingly and wisely. However, given their unceasing efforts to prevent the British public reading a book freely available all over the world, there is considerable room for doubt on this point.
If all possible harm has been done by the initial disclosure, it is not an offence to repeat the information. But if further harm is possible, then any repetition of the information could become a new offence. The question is: how can a newspaper know whether all the potential harm attached to a story has already taken place? A national paper will not be in a position to know whether giving wide publicity to an item published in a small local paper could lead to further harm, and prosecution. Papers are thus reluctant to repeat information already in the public domain. The outcome being to follow ones lawyer's advice, play it safe and keep quiet.
The British press has become rather quiescent as a result and much information of a potentially embarrassing nature to the government rarely sees the light of day. The present UK government, probably because the matter could not qualify under the Official Secrets Act, embargoed the Cullen report (about the Dunblane shooting tragedy) for a hundred years, an unprecedented move when one considers that much of the secret activities during WWII have already been published.
Nowhere in the UK Official Secrets Act can be found the words public interest. A civil servant or a journalist could reveal information about behaviour so monumentally disgraceful and so completely unacceptable that no minister would dare defend it. Everyone in a position to get involved may have failed to act in accordance with their duties, yet the person who finally exposes the matter risks imprisonment; having no chance to justify the disclosure.
In the USA there is a
On Saturday November 4th, Mr. Clinton finally vetoed Section 302 of the Intelligence Authorization Act. To deflect charges that his administration was weak on security the President said that
Now the CIA and its friends in the House will have a chance to present their ideas again to the newly elected president whoever that may turn out to be.
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