The U.S. Constitution specifically authorizes prosecution of treason and empowers Congress to determine the penalties for traitors. The penalty can be death. There also are federal statutes against sedition, with stiff penalties. It's against the law for government workers to disclose classified defense or national security information. Also on the books is a law called the Espionage Act, which a federal judge only recently declared may be used by the government to prosecute citizens for unauthorized receipt or disclosure of classified information.
To gild this legal lily, U.S. Sen. Christopher Bond, R-Mo., has proposed what amounts to an Official Secrets Act, further criminalizing leaks of any information the government doesn't want made public. Among the co-sponsors joining Bond on the bill, S. 3774, is Montana's own Republican Sen. Conrad Burns.
The proposed law would relieve government prosecutors of the need to prove a broken secret harmed national security. Indeed, the law isn't about national security. It's about maintaining secrets. Anyone who discloses classified information to another person not authorized to have it would be guilty.
Except, of course, the government always has discretion to prosecute or not. Government operatives who leak secrets with the tacit and sometimes explicit authorization of their bosses as part of routine politicking doubtless would skate, while whistleblowers and critics of government policy would go to jail.
In 2000, President Bill Clinton vetoed a bill containing a virtually identical measure. At the time, he said the provision would create an “undue chilling effect” on the free flow of information that is essential to democracy. Clinton had a secret or two of his own he likely wished to suppress, and his administration began the increased secrecy classification of information that has further accelerated under the Bush administration. But he was exactly right when he said the criminalization of all leaks goes too far. If you know only what the people in power at the moment want you to know, you might as well kiss the notion of democracy and self-determination goodbye.
To understand why criminalizing leaks is a bad idea, you need only consider the extent to which the government classifies information as secret. The federal government maintains at least 1.5 billion pages of classified documents, adding millions more every year. Some of this comprises legitimate state secrets, important to protect national security. But through the routine declassification of old information (a process that has slowed and even reversed in recent years), we've seen that much of what gets classified as secret is embarrassing or inconvenient to the government or politicians and has no real national security implication. Some of what gets classified is stuff you really ought to know - as when the government systematically violates people's rights or engages in covert wars in defiance of Congress.
Interestingly, members of the president's Sept. 11 Commission complained repeatedly that too much of the classified information they reviewed as part of their inquiry had no reason to be classified. Beyond politics, there seems to be a natural, bureaucratic inclination to keep information on a need-to-know basis - the presumption being, you don't need to know. This is no surprise. Knowledge is indeed power, and those in power seldom are very keen on sharing it.
People who actually compromise national security are traitors and should be dealt with accordingly. People who uncover wrongdoing and subversion of democracy are patriots, even if they break secrets to do so. We already have laws to deal with the former. We won't benefit from a new law likely to be used most in stifling the latter.
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