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An official secrets act might keep Congress in the dark
COMMENTARY | August 25, 2006
Legislation aimed at criminalizing the disclosure of classified information is a threat not only to whistle blowers and the press but to Congress’s exercise of its own oversight function as well.
By Nick Schwellenbach
schwellenbach@niemanwatchdog.org
Though the Cold War saw a formidable spy apparatus marshaled against the United States (and one greater than anything al Qaeda could hope to develop), even in those vexing days our elected representatives consistently chose not to emulate one of the British government's more dubious contributions to jurisprudence: The Official Secrets Act. Originally passed by Parliament in 1911 and radically revised in 1989—the same year, ironically, as the Berlin Wall's crumbling heralded the hyper-secretive Soviet system's inevitable collapse—the Official Secrets Act is notable not merely for its expansive definition of "official secrets." The British law does not allow for circumstances when the disclosure of such secrets may be in the public interest and anyone in or out of government who discloses such secrets may be subject to criminal penalty.
America has contemplated such a law before, yet with starkly different results. When considering the Espionage Act of 1917 during World War I, Congress refused to give the President blanket authority to prohibit publication of classified information by criminalizing its disclosure during wartime. In 1957, Senator Norris Cotton (R-New Hampshire) championed a proposal to make unauthorized disclosures of classified information a crime. Again Congress refused.
It was nearly a half-century later when Senator Richard Shelby (R-Alabama) resurrected this heavy-handed idea—this time, with near-success. Then as now, under existing law only the unauthorized transmission of a narrow band of secrets—like cryptography methods and the identities of covert agents—come with criminal penalties. But in 2000, Senator Shelby presided over the quiet movement through Congress of a bill that would have criminalized the unauthorized disclosure of any classified information to the media and others. The bill passed—but died with a stroke of then-President Clinton's veto pen. Still enamored of the idea, Shelby reintroduced the bill again in 2001. Even in the wake of 9/11, no less an authority than then-Attorney General John Ashcroft told Shelby that his legislation was unnecessary, thus ending Shelby’s attempts to foist a dubious English legal import onto existing American law.
But on August 2, the possibility of an American Official Secrets Act reared its head once again. This time, it was sprung by Senator Christopher Bond (R-Missouri). Wrapped in the deceptively benign title, "A bill to prohibit the unauthorized disclosure of classified information," Bond’s legislation is identical to Shelby’s.
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