Unofficial Official Secrets Act

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The article "Bush's Unofficial 'Official Secrets Act': How the Justice Department Has Pushed to Criminalize The Disclosure of Non-Security Related Government Information" by John W. Dean was published in the September 26, 2003, edition of FindLaw's Writ. The article addresses what clearly appears to be a manipulation of provisions delineated in Patriot Act I and other United States laws and statutes.

Dean wrote that, "Except in a few highly egregious circumstances relating to national security information (espionage and atomic secrets), the U.S. Congress has, in the past, never made it a crime to leak information to the news media. As a result, for over two hundred years, our government has operated without an official secrets act.

"In contrast, Great Britain and other nations have long criminalized the disclosure of government information. But there's a crucial difference between them and us: They lack an equivalent of our First Amendment.

"Despite the free speech costs, President George W. Bush has created the equivalent of an official secrets act for America - and it is only growing stronger. Indeed, by cobbling together provisions from existing laws, Bush's Justice Department has effectively created one of the world's most encompassing, if not draconian, official secrets acts."

Dean indicated Attorney General John Ashcroft as point man, saying that if Ashcroft "has his way, we will see many more prosecutions of this ilk. Ashcroft has told Congress he wants a comprehensive, coordinated, Government-wide, aggressive, properly resourced, and sustained effort' to deal with 'the problem of unauthorized disclosures.'"

Dean said that it is "important to watch Ashcroft's lips here: He said unauthorized disclosure" and did not say "disclosures of classified information relating to national security." That would "be a very different matter," as, said Dean, "Plainly, [Ashcroft] is targeting anyone who leaks information the Bush Administration would rather not have made public - even when security is in no way at risk."

  • "Although there is no single statute that provides criminal penalties for all types of unauthorized disclosures of classified information, unauthorized disclosures of classified information fall within the scope of various current statutory criminal prohibitions.... Given the nature of unauthorized disclosures of classified information that have occurred, however, I conclude that current statutes provide a legal basis to prosecute those who engage in unauthorized disclosures, if they can be identified."

A similar process begun during the Bill Clinton days was outfoxed by Scott Armstrong, Executive Director of Information Trust, who "realized what was occurring, and mounted a major lobbying effort to get Clinton to veto it, and he did." However, this time, says Dean, "it is already too late, for Ashcroft has outfoxed the watchdogs. Rather than pressing for new legislation that might spark similar controversy, he has decided to twist and distort laws already on the books to create the equivalent of such legislation. However, these laws were never intended to criminally prosecute such conduct."

See article for historical background material, as well as Dean's recount of the Jonathan Randal/Lord Michael Ashcroft/DEA case.

On October 23, 2002, Secrecy News reported "No new legislation is needed to combat unauthorized disclosures (leaks) of classified information, according to the long-awaited report of an interagency task force led by Attorney General John Ashcroft.

"However, strong new administrative measures to discourage leaks should be adopted, coupled with aggressive investigation of violations and vigorous enforcement of existing laws, the task force report said."

"Any such comprehensive anti-disclosure legislation would not significantly enhance the government's ability to deter leaks or identify leakers, Mr. Ashcroft concluded:

"Although there may be some benefit from a new comprehensive criminal statute, such a statute standing alone would be insufficient in my view to meet the problem.... Accordingly, I am not recommending that the Executive Branch focus its attention on pursuing new legislation at this time."

"'But,' added Ashcroft, 'a wide range of administrative measures' should be activated 'to significantly improve our capacity to stem the practice of unauthorized disclosures of classified information.'

"These notably would include an amended non-disclosure agreement signed by all authorized recipients of classified information that 'sets out liquidated damages' in the event of a finding that the person leaked information; and a requirement that a suspected leaker certify under penalty of perjury that he or she had not engaged in a particular unauthorized disclosure.

"The Attorney General's Task Force Report on Unauthorized Disclosures of Classified Information was transmitted to Congress on October 22[, 2002]."

"Currently, the determination of what constitutes a national security secret is governed by Executive Order 12,958 [Classified National Security Information] of April 17, 1995, as amended and the determination of who may have access to such secrets is governed by Executive Order 12,968 [Access to Classified Information] of August 2, 1995, as well as by Executive Order 12,958."[1]

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