The heads of the intelligence committees in Congress, Democratic Senator Dianne Feinstein and Republican Representative Mike Rogers, are right to be angered by recent leaks about intelligence operations involving a CIA informant inside the Al Qaeda network, drone strikes in Yemen, and a cyberattack on Iran. Unauthorized disclosures, of course, can undermine US security. But Congress’s bipartisan push for more stringent anti-leak laws may do as much harm as good.
To convict people under the Espionage Act of 1917, the main anti-leak statute on the books, a prosecutor must show that they disclosed national defense information with the intent or knowledge that it could be used to harm the United States or benefit another country. That covers all the situations that Congress should be concerned about. Proposals to make it easier to convict a leaker, either by outlawing leaks regardless of whether they affect national security or arbitrarily restricting the number of national-security officials who can talk to reporters, could serve to criminalize even expressions of disagreement on important policy matters or disclosures of official wrongdoing.
If someone in the US intelligence arena deliberately leaked information about the double agent who helped thwart an Al Qaeda plot to bomb an airliner this summer, he or she can be suitably prosecuted under the existing statute. Likewise, the various proposals to stiffen the anti-leak law wouldn’t have made it any easier to prosecute the Bush administration official who leaked information about CIA operative Valerie Plame; it turned out that the official responsible for the leak, Deputy Secretary of State Richard Armitage, didn’t know that Plame’s status was protected.
And Armitage was so high on the federal food chain that a law barring lower-level officials from talking to the media would have had no effect on him. Meanwhile, allowing only the most senior administration officials to talk about national security would have given them even more power to present their sanitized versions of intelligence actions. Disclosures need to be stopped when they undermine Americans’ safety. But not all leaks are created equal; some are harmless, and some shed necessary light. The current anti-leak law strikes the necessary balance between security and transparency.