By DANA LIEBELSON
Imagine an America where journalists and whistleblowers cannot reveal government misconduct without facing grave punishment. Does that sound like a healthy democracy to you? Well, if Congress rushes anti-leak legislation without carefully considering the ramifications on the public’s right-to-know, the U.S. will be one step closer to that dim future.
Some members of Congress have been calling for swift anti-leak legislative action in response to The New York Times breaking two sensitive national security stories: the first on the Obama Administration’s “kill list,” the second about U.S. cyber-attacks on Iranian nuclear facilities. As some legislators frame it, the most recent leaks are part of a growing trend of potentially harmful disclosures.
POGO and more than 25 good government groups from across the ideological spectrum sent a letter to the Senate and House intelligence committees last week, urging Congress not to accelerate anti-leak legislation without taking careful steps to protect the interests of an open government and informed public.
It’s politically popular for politicians to take a strong stance against leaking—but rushing legislation is not a practical solution to the issue. Firstly, as the Federation of American Scientists, American Civil Liberties Union, POGO and countless others have documented, there is already a serious problem with over-classification of government records.
“Over-classification hinders information sharing, causes information to be inappropriately removed from public access, and causes the government to needlessly spend billions of taxpayer dollars protecting information that should never have been classified” good government groups wrote in a 2010 letter.
There have been some steps to address this problem: for example, in 2009, President Obama signed an Executive Order that spurred a review of the current procedures for classifying and declassifying information.
But these actions are still very much in the early stages—and the problem of an abundance of improperly classified information still exists.
“There are absolutely secrets that must be kept to protect our national security and our democracy, but that is undermined by the overwhelming amount of information illegitimately marked secret,” said POGO Public Policy Director Angela Canterbury. Anti-leaks efforts must start by ensuring our classified information is credible and by creating safe channels for lawful disclosures of wrongdoing by whistleblowers.”
“Both acts have the effect of damaging the subject of the revelation. But leaking is quite different from blowing the whistle,” Radack wrote in The Los Angeles Times. “The Whistleblower Protection Act protects the disclosure of information that a government employee reasonably believes evidences fraud, waste, abuse or a danger to public health or safety.”
Unfortunately, this law does not provide adequate safe channels to make disclosures—particularly in matters of intelligence—which can lead more leaking. It doesn’t help that the Obama Administration is cracking down on leakers and whistleblowers at an alarming rate: just check out these six Americans the Department of Justice charged with the deadly-serious Espionage Act.
It is vital that whistleblowers have strong protections for legally exposing wrongdoing. One way to do that would be for Congress to finally pass the Whistleblower Protection Enhancement Act (H.R. 3289/S.743), which among other things, would provide intelligence community workers safe, legal channels for disclosures of wrongdoing, and give them some protections for doing so. This bill passed through the Senate on May 8, 2012, and the House companion bill has passed the Oversight and Government Reform Committee, and awaits consideration by the House.
No one wants leaks that threaten our national security to happen—but throwing a big blanket over leakers, whistleblowers, and any remotely sensitive information doesn’t solve the problem. It makes it worse. Congress needs to seek input from the public and experts in the field to begin to address these important issues.
As former President Bill Clinton said when he vetoed a broad anti-leak bill put forth by Congress, “It is my obligation to protect not only our government's vital information from improper disclosure, but also to protect the rights of citizens to receive the information necessary for democracy to work.”
Dana Liebelson is POGO's Beth Daley Impact Fellow