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Bush's Unofficial Official Secrets Act:
How the Justice Department Has Pushed to Criminalize The Disclosure of Non-Security Related Government Information


Friday, Sep. 26, 2003

Except in a few highly egregious circumstances relating to national security information (espionage and atomic secrets), the U.S. Congress has, in the past, never made it a crime to leak information to the news media. As a result, for over two hundred years, our government has operated without an "official secrets act."

In contrast, Great Britain and other nations have long criminalized the disclosure of government information. But there's a crucial difference between them and us: They lack an equivalent of our First Amendment.

Despite the free speech costs, President George W. Bush has created the equivalent of an official secrets act for America - and it is only growing stronger. Indeed, by cobbling together provisions from existing laws, Bush's Justice Department has effectively created one of the world's most encompassing, if not draconian, official secrets acts.

If Attorney General John Ashcroft has his way, we will see many more prosecutions of this ilk. Ashcroft has told Congress he wants a "comprehensive, coordinated, Government-wide, aggressive, properly resourced, and sustained effort" to deal with "the problem of unauthorized disclosures."

It's important to watch Ashcroft's lips here: He said "unauthorized" disclosure - not, say, disclosures of classified information relating to national security, which would be a very different matter. Plainly, he is targeting anyone who leaks information the Bush Administration would rather not have made public - even when security is in no way at risk.

This time, however, it is already too late, for Ashcroft has outfoxed the watchdogs. Rather than pressing for new legislation that might spark similar controversy, he has decided to twist and distort laws already on the books to create the equivalent of such legislation. However, these laws were never intended to criminally prosecute such conduct.

The History of Attempts To Prosecute Leaks of Government Information

For good reason, Congress has never adopted a law to criminalize leaks of government information. Woodrow Wilson tried to get Congress to enact such a law in 1917, as part of the Espionage Act, during World War I. But Congress refused - and the Espionage Act, as passed, was intended to apply only to spies passing information to the enemy.

During the debate on criminalizing leaks, Senator William Borah, a Republican from Idaho, reminded his colleagues of the lesson of the infamous Sedition Act of 1789: "Once before in the history of this Government we undertook to establish something in the nature of an abridgment of speech and of the press. It was a complete and ignominious failure."

Unfortunately, Congress's unequivocal rejection of an anti-leak criminal law in 1917 did not prevent the Nixon administration from trying to prosecute a leak many decades later. In doing so, the Administration relied on the 1917 Espionage law, as well as another broadly written statute, covering the theft of government property. It was the first time either statute had been applied in such a prosecution - and, in truth, neither was properly applicable.

The prosecution, of course, was the famous Pentagon Papers case - in which Nixon's Justice Department charged Daniel Ellsberg (and Tony Russo, who helped him) under these laws for leaking the classified Pentagon study, relating to the origins of the Vietnam war, to the New York Times. Because the case was dismissed, due to government misconduct, it did not resolve the question of whether the laws at issue could actually be used to punish leakers.

Shortly thereafter, though, in 1971, the Nixon Justice Department once again tried to invoke the theft statute in a similar context. In that case, the government charged agents of the Drug Enforcement Agency (DEA) with using DEA information to set up a drug operation of their own.

The government argued the case came within the theft statute because it reaches the unlawful disposition of "any record ... or thing of value" of the United States. The government argued that even intangible information was a "thing of value," and the federal district and appellate courts agreed.

The Morison Case: The First Leak Conviction Under the 1917 Espionage Act

The case arose because Samuel Morison, a civilian analyst working in Navy Department Intelligence, sent two classified satellite photos of a Soviet nuclear-powered aircraft carrier under construction to Jane's Defence Weekly, a British-based publication. (With the consent of his Navy employer, Morison worked part-time as the American editor for another Jane's publication.)

The guilty verdict sent shock waves through the news media and publishing establishment. By late 1987, when the case reached the U.S. Court of Appeals for the Fourth Circuit, some thirty-four major news organizations had filed amici curiae (friend of the court) briefs. They included The Washington Post, The New York Times, The Los Angeles Times, The Chicago Tribune, ABC, CBS, NBC, The American Society of Newspaper Editors, and The Magazine Publishers Associations, just to list a small sampling.

These media entities knew that if Morison was guilty of a crime for leaking under these statutes, then potentially they too were guilty - either under an "aiding and abetting" theory, if they printed or induced leaks from their government sources, or even under these loosely worded statutes themselves. Their briefs hammered at the point that Congress never intended either of these statutes to be used to criminally prosecute such leaks.

But the Fourth Circuit was not interested in what Congress intended to do, only what Congress had said. They found that the Espionage statute covered Morison's conduct even though it was not a classic spying case, and no information had been given to an enemy. As for the theft statute, the court reiterated that information could be a "thing of value" that could be stolen, and held - invoking the 1971 drug case precedent - that it, too, was applicable.

Morison was sentenced to two years in prison. To say that the Reagan administration received bad press for his prosecution, is an understatement. Newspeople understand that leaks are the lifeblood of Washington; that government officials leak information daily; and that the ship of state is unique in that it leaks from the top. To prosecute low-level leakers - when it's obvious high-level leakers never will face the same kind of charges - is high hypocrisy.

In 2001, just before leaving office, President Bill Clinton pardoned Morison, who had already served his sentence.

Bush's Revival Of Morison And More: The Randal Case

Attorney General John Ashcroft is making good on his word to aggressively prosecute leaks - or at least some leaks. Again, the target has been a low-level employee, a Morison for the new millenium. He is Jonathan Randal, an intelligence research specialist with a Ph.D. who had worked at the Atlanta office of the DEA.

Randal's alleged crime? Leaking negative information about one of the richest men in the U.K., Lord Michael Ashcroft (no relation).

The bad press forced Lord Ashcroft's resignation as the Conservative party's treasurer. Soon, the U.S. State Department issued a statement that it had no conclusive proof connecting Ashcroft to money laundering, or anything else. But the London Times said that to the contrary, it had DEA documents showing that Ashcroft was index-numbered on the DEA files, a measure that, it said, is taken only when serious suspicions exist.

Lord Ashcroft filed a libel lawsuit against the Times, and soon traced the DEA documents back to Jonathan Randal. It turned out that Randal had leaked them to a freelance British journalist who was investigating Lord Ashcroft; the journalist, in turn, had sold them to the London Times. According to Randal's attorney, Steve Sadow - who spoke to Robin McDonald of the Fulton (Georgia) Country Daily Report and Felicity Barringer of the New York Times - Randal himself received no payment for the information itself, no quid pro quo.

Lord Ashcroft settled his lawsuit with the London Times, which agreed to a front-page apology and promised never again to investigate him. In addition, according to press accounts, he hired an Atlanta lawyer to encourage DEA and the Justice Department to prosecute Jon Randal.

The Case Against Randal

Randal was indicted by Bush's new U.S. Attorney in Atlanta, William Duffey Jr.. Duffey is a former Deputy Independent Counsel who worked for Ken Starr in Little Rock, Arkansas. (Starr, with Duffey's help, built a case against then-governor Jim Guy Tucker, sending him to jail on fraud and conspiracy charges.)

In February 2002, Duffey's office confronted Randal with a twenty-count indictment. The impact of the indictment was to criminalize Randal's leak. But to do so, prosecutors didn't bother to draw from an official secrets act - since they didn't have one. Instead, they twisted the existing law to issue an indictment to the same effect.

Count One is based on the general theft statute - with information, once again, alleged to be the "thing of value" stolen. Count Two relies on a statue adopted in 1994 designed to protect information in government computers, where most government information now resides. The government charged that Randal "knowingly and with an intent to defraud" the government, exceeded his authorized use of the DEA computer by pulling information about Lord Ashcroft.

Counts Three through Eighteen are based on the mail/wire fraud statutes; there are sixteen counts because Randal allegedly accessed DEA computers to obtain information about Lord Ashcroft sixteen times.

This pair of statutes is especially prone to misuse. As Chief Justice Warren Burger noted, "When a 'new' fraud develops - as constantly happens - the mail fraud statute becomes a stopgap device to deal on a temporary basis with the new phenomenon, until particularized legislation can be developed and passed to deal directly with the evil." The same is true of the wire fraud statute, as he also noted.

Jon Randal decided to cooperate with the government, and to plead guilty to a violation of the theft statute. That's not surprising: If he had not, he could have faced a staggering statutory maximum of penalty of 580 years - or more realistically, life - in prison.

Randal's Sentencing: The Government Seeks a Long Sentence

For sentencing purposes, the Government used expert testimony to claim the value of the information given the London Times was up to $70,000 - an absurd contention. Still, Randal was given a year in jail; he will have to serve the entire year, followed by three years of supervised probation. He will also have to pay a $2000 fine.

U.S. Attorney Duffey told the New York Times that he was pleased with the sentence - and saw the prosecution of Randal as "a warning to other government workers."

But what warning, exactly? The information was not classified. It did not compromise any investigator, investigation, or investigative method. Clearly, the warning is this: Keep your mouth shut at all costs, no matter how intensely a leak might be in the public interest, and no matter how integral leaking might be to the way a free press operates. In short, the message is: Never blow the whistle.

Meanwhile, there is still talk of prosecuting the London Times. But I'll believe that only when it happens - which would doubtless only occur after November 2004, if ever.

I suspect the "fair and balanced" Mr. Murdoch, who owns the London Times, will be able to settle up with the Bush administration before then. If not, the American media, too, will get an ugly warning - for it may be the next victim of Bush's unofficial official secrets act.

John W. Dean, a FindLaw columnist, is a former counsel to the President.

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