On Sunday, Senator Joe Lieberman (I-CT) called for resurrecting a broad anti-leaks law that would be a de facto Official Secrets Act. (I warned that the result of the recent hysteria over leaks could be such a broad anti-leak measure that would no doubt stifle legitimate dissent.)
The law would criminalize any disclosure of classified information, despite the fact that all experts agree that the classification system is plagued by rampant overclassification, and that far too much information is deemed classified. Worse, the law would remove the intent requirement of the Espionage Act, despite the fact that the intent to harm the United States or benefit a foreign nation requirement is the only thing making the Espionage Act constitutional.
Lieberman's proposal would chill First Amendment-protected activity, criminalize whistleblowing, and cover everything from whistleblower disclosures, press briefings, and anyone who repeats or reprints previously leaked classified information.
I discussed Lieberman's misguided proposal on RT yesterday:
In practice, the Lieberman proposal would mean that anyone (government employee or not) who discloses information that the government declares classified, or decides is classified after the fact, as the government did in the case against National Security Agency (NSA) whistleblower Thomas Drake, could be criminally prosecuted, regardless of the reason for the disclosure. In Drake's case, the supposedly classified information he was criminally-charged with improperly retaining was so egregiously over-classified, that the former classification czar under G.W. Bush, J. William Leonard, filed a formal complaint seeking discipline for the officials who engaged in what Leonard described as the most
deliberate and willful example of government officials improperly classifying a document . . .
that Leonard has ever seen. Nonetheless, Lieberman is calling for a law that would make it easier to use the criminal justice system to go after whistleblowers like Drake.
Already, the Obama administration has waged a war on whistleblowers using the Espionage Act, which has not abated despite the Justice Department's ungraceful belly-flop in the Drake case. (The case ended with the government dropping all felony charges in exchange for Drake's guilty plea to a minor misdemeanor not involving classified information).
If Lieberman really cared about stopping "leaks," his law would distinguish between legitimate whistleblowing and politically-motivated "leaking." Even better, instead of focusing on who made what information public, Congress should focus on providing safe, effective channels for whistleblowers to bring complaints. Protect whistleblowers, and properly-classified information will be protected as well.
Jesselyn Radack is National Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.