Secret's Out

On the evening of December 3 last year, the Bush administration learned of an alarming leak. At midnight, the largest Muslim charity in the United States, the Holy Land Foundation of Richardson, Texas, would be formally listed as a terrorist-linked organization. Federal agents would then raid the foundation's offices and seize its papers. Now, only a dozen hours before the raid, the phone was ringing. The New York Times was on the other end of the line. Somebody had tipped them off. They intended to post the news about the foundation on their website immediately.

The organizers of the raid pleaded with the paper to postpone its report. We are dealing, they said, with some very dangerous people. Warning of the raid could jeopardize the lives of federal agents. At a minimum, the Times's leak would give the foundation time to destroy incriminating documents."Won't this be just as good a story tomorrow morning?" the Bushies asked.

Apparently not. The Times decided it was prepared to risk the lives of federal officers to have its scoop. The White House ordered an internal investigation, but the leaker was never found.

I thought of this story when I saw that Daniel Ellsberg had published a new memoir, on the eve of what may be a war with Iraq. Remember Ellsberg? He was the man who leaked the Pentagon Papers in 1971, and three decades later he is still urging high officials to betray the nation's secrets to advance a political agenda.

"If people in the administration and the Pentagon can hear me, indirectly or directly," Ellsberg said in the San Francisco Chronicle on Oct. 23, "I urge them to consider . . . [,] if they know, from documents passing their hands, that the country is being deceived into a reckless war, . . . going to Congress with the documents, and to the press . . . "

Somebody must be listening to him. In July, the Times published a front-page story describing a military plan for the invasion of Iraq from the north, south, and west. At a July 22 press conference, Secretary of Defense Rumsfeld vowed to find and punish the leaker. "I think it is so egregious, so terrible, that I decided to have an investigation notwithstanding the cost."

Some cynics suggested that the leak was an act of disinformation intended to throw the Iraqis off balance. Let's hope so -- because the awkward truth is that authentic leakers are seldom caught and even more seldom punished.

In 1971, the Times's then-publisher Arthur "Punch" Sulzberger agonized over publishing the Pentagon Papers. Sulzberger was worried less by the harm the Pentagon Papers might do to the country, than by the potential legal danger to the Times. Sulzberger was a surprisingly simple man, and he just assumed that something very bad would happen to a newspaper that defied the classified stamps on thousands of official documents and broadcast to the world America's innermost secrets.

Was he wrong! Law professors sometimes entertain their students with antique statutes that nobody has bothered to expunge decades after they lost all meaning -- I remember one that forbade the grazing of cattle on Boston Common. But equally interesting are the laws you would expect to be there, but aren't.

You might think it's against the law to publish top-secret documents. It's not. You might think it's illegal to receive top-secret documents and pass them on. Again: It's not. Government employees have a duty to protect secrets in their care. Beyond that, so long as he is not actually spying for a foreign power, no American has any legally enforceable duty to his government's security.

Does this matter? Not according to our journalists. For them, the right to leak is one of the bulwarks of American democracy, alongside trial by jury and freedom of worship. When President Clinton two years ago proposed to increase penalties for leakers, William Safire accused him of seeking "the weapon that so many dictatorships use to stifle dissent and hide misdeeds."

Um, maybe. But mightn't easy access to potentially lethal information about America's vulnerabilities also be a useful weapon for dictators?

Many democratic countries, including Britain, Canada, and Australia, have official secrets acts that protect military and intelligence information. Under these laws, it's not only illegal to give away secrets. It's illegal also to receive and publish them.

Yes, official secrets acts are sometimes abused. My own father-in-law, Peter Worthington, is the only person ever to have been prosecuted under the Canadian Official Secrets Act. How did he achieve this distinction? By exposing the extent of Soviet espionage in Canada -- and the Canadian government's lax response to it. (My father-in-law was quickly acquitted -- rather too quickly for his taste. When he and the publisher of his newspaper stepped out of the courtroom, they were asked how they felt about the result. The publisher said that he was satisfied, but that his co-defendant wanted to appeal.)

A Canadian-style official secrets act would be unconstitutional in the United States, and a good thing too. The U.S. government classifies too many things too thoughtlessly. But I doubt that the Supreme Court would strike down a secrets law that applied only to very specific categories of super-sensitive information, such as military plans. Even in the Pentagon Papers case, the Supreme Court reaffirmed the old rule that the press could be restrained from publishing the departure times of troop ships.

Open government is an American ideal. But some advocates of open government sound more like Saturday Night Live parodies than like rational libertarians. The Naderite group OMB Watch, for example, has complained that the Federal Aviation Authority's website no longer specifies deficiencies in airport security and that the Department of Transportation no longer identifies which gas pipelines would explode with the greatest force.

As the war on terror enters its second year, it gets harder and harder to remember that it is a war, and not a metaphor. So maybe we do owe Daniel Ellsberg thanks after all for reminding us at a crucial time that information is a weapon that can lose wars, as well as win them.