Goss Attacks Leakers

| Fri Feb. 10, 2006 5:00 PM EST

Always nice to see the CIA Director getting down and dirty. In the Times today, Porter Goss takes to berating people who leak national security secrets to the press:

As a member of Congress in 1998, I sponsored the Intelligence Community Whistleblower Protection Act to ensure that current or former employees could petition Congress, after raising concerns within their respective agency, consistent with the need to protect classified information. Exercising one's rights under this act is an appropriate and responsible way to bring questionable practices to the attention of those in Congress charged with oversight of intelligence agencies. And it works. ….

On the other hand, those who choose to bypass the law and go straight to the press are not noble, honorable or patriotic. Nor are they whistleblowers. Instead they are committing a criminal act that potentially places American lives at risk. It is unconscionable to compromise national security information and then seek protection as a whistleblower to forestall punishment.Unconscionable, eh? Now admittedly I tend towards the extremes when it comes to thinking about classified information and national security secrets—"leak early, and leak often" is the motto 'round these parts—but even from a more "reasonable" angle, Goss' position doesn't seem right.

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The Whistleblower Protection Act does provide some channels for whistleblowers to complain to Congress, true, but it's still very incomplete. Russell Tice, the guy who's supposedly privy to a bunch of "illegal actions" taken by the NSA in its domestic spying program, is not allowed to testify before Congress, because even the members of the House and Senate Intelligence Committees, who are technically supposed to oversee this stuff, don't have the necessary clearance. If the executive branch is allowed to possess secret information that no one else can have, then it becomes a bit difficult to find an "appropriate and responsible way" of bringing illegal activities to Congress' attention, no?

Meanwhile, the normal channels for reporting wrongdoing that Goss prefers have become much more treacherous since 1999, when a federal court ruled that whistleblowers can be protected from retaliation only if there is irrefutable evidence of wrongdoing—a high bar to meet (the wrongdoer basically has to cop to illegal activity). According to the Government Accountability Project, prior to the court ruling, 36 percent of whistleblowers who went to the Merit Systems Protection Board won their case on the merits; post-ruling, it's 7 percent. Presumably, many potential whistleblowers have been deterred from using "legal" avenues to report wrongdoing. So that leaves the press.

Is it ignoble or dishonorable to leak classified information to the press? Even I would agree that some national security secrets need to be kept under wraps (although I'm less enamored of the idea that "covert" CIA agents toppling governments and fueling crack epidemics deserve special protection, but whatever). But what counts as a real secret here? Classification of "national security secrets" has always been arbitrary and subjective. The CIA still classifies the intelligence budget total from 1947, despite the fact that budget figures for, say, 1998 have been declassified. Similar examples are everywhere. Is this the sort of whimsy that should be backed by criminal prosecution? I'd say no.

(Moreover, if ever it became a felony to leak classified information—as Congress proposed in 2000, only to be vetoed by Bill Clinton—then the executive branch, which can classify and declassify things at will, would also have the power to create or dissolve at will the conditions for felony prosecution. Surely more than a few people can see an abuse-of-power problem lurking here.)

Under the current administration, moreover, the executive branch has revised the rules on classification, allowing documents to be classified "even in cases of significant doubt." In 2004, classifications rose 25 percent, at a cost of some $6.5 billion. Was this all due to national security? Hardly—a record number of agencies are keeping things secret, including Health and Human Services and Agriculture. Agriculture. The administration has also decided to ignore the "Seven Member Rule," under which, if seven members of the House Government Reform Committee request information from the executive branch, they get it. No longer. In many cases, the members simply wanted to look at adjusted census records—and couldn't even get that. When the rules become this capricious, I'd argue that whistleblowers have less of a duty to respect government secrecy.

The last thing to say is that leaking doesn't always put "lives at risk," as Goss has it—sometimes it does a world of good. Here's an example everyone can agree on: In 2002, press reports on the classified Nuclear Review Posture—in which the administration was considering the use of nuclear weapons—proved pretty damn important, since the Pentagon hadn't even bothered to create an unclassified report on the subject, as it usually does. Some administration officials, reported the Los Angeles Times, even welcomed the leak and "said privately that a national debate on nuclear strategy might be healthy." To put it mildly, yes. If Goss had had his way, there might have been no "healthy" debate at all.

At any rate, those are more scattered observations than specific recommendations. Very few people would agree with me that we should declassify nearly everything, but it seems uncontroversial enough to say that current whistleblower protections are inadequate and the current classification system is hardly the sort of thing that should inspire as much reverence and awe as Porter Goss is demanding.

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