U.S. is uniquely harsh in its panic over government secrets

By the standards of other countries, the U.S. approach to official secrecy is ferocious.

For leaking hugely newsworthy information to the press, ex-intelligence contractor Edward Snowden, who’s beseeching a score of countries for asylum, and Bradley Manning, the U.S. soldier being tried by a military court in Maryland, face charges of espionage. They could go to prison for life.

Elsewhere, punishment for making official secrets public is less severe than the penalties here for driving drunk: at worst, two years in Britain and Denmark. In other Western countries, maximum punishments range from four years in Sweden and Spain, to five in Germany, Belgium and Poland, and seven in France.

That’s according to an analysis of 20 European countries by Sandra Coliver, a legal expert with the Open Society Justice Initiative. Her group has been leading a multiyear, international effort to formulate broad principles reconciling the legitimate need to keep government secrets with the no less legitimate need to hold governments publicly accountable.

Not only are penalties mild elsewhere, Coliver found, prosecutions are rare.  In six countries, nobody in the past decade has been convicted for disclosing state secrets. In Britain, since the 1989 Official Secrets Act took effect, only 10 public employees have been prosecuted. The longest sentence was imposed on a naval petty officer who sold intelligence to a newspaper about a possible Iraqi anthrax attack. He got a year.

In fact, apart from the United States, the only country where prosecutions are common is Russia. There, 10 government employees have been imprisoned in the past decade for from four to 15 years for disclosing government information publicly.

Europe’s courts seem to be moving toward support for whistleblowers, even when state security is breached.

In a 1996 case, a military intelligence official in Romania was initially sentenced to two years for releasing the tapes of illicit wiretaps his agency had made of journalists and politicians.

But the European Court of Human Rights ruled that he was wrongly convicted, Continue reading “U.S. is uniquely harsh in its panic over government secrets”

Shouldn’t the news media fret over criminalizing the flow of important information?

In recent weeks, the gleaming Digital Age has been flipped over, exposing a dank underbelly of post-9/11 secrecy and surveillance reminiscent of a mid-20th Century police state, and implicating not just government but Silicon Valley too in harvesting and misusing information.

I’m curious about where the news media fit into all this. After all, in our political culture the news media have responsibilities that go well beyond reporting the news.

They historically have played much broader civic roles in the realm of information—as advocate of expressive liberties, servant of the public’s need to be well informed, skeptic when the powerful use secrecy against accountability, protector of the rights of the powerless who don’t want information about themselves looted.

Are the media playing such lofty roles now? That depends. Sometimes they sound like First Amendment zealots:

In May, when the Associated Press learned the government had secretly seized records from more than 20 phone lines used by reporters, AP chief Gary Pruitt denounced the action as “a serious interference with AP’s constitutional rights… ”

That same month, when a Fox News reporter was targeted as a possible “co-conspirator” with a former source—an ex-State Department contractor charged with leaking government fears about North Korean nuclear plans—Fox boss Roger Ailes deplored “a climate of press intimidation, unseen since the McCarthy era…”

Chagrined, the White House dusted off its 2009 press shield bill, which would provide some cover for journalists to defy pressure to identify confidential sources, and indicated the time might be right to pass it.

In those cases, the lines seemed clear, with the press firmly on the side of ferreting out the news and publishing it, championing informational liberty.

But elsewhere little is clear. Whose side are the news media really on when it comes to demanding a reasonably unfettered flow of publicly significant information?

The absence of sustained coverage of the half-dozen felony prosecutions of news Continue reading “Shouldn’t the news media fret over criminalizing the flow of important information?”

On getting over it

Two weeks ago on a cross-country flight I checked three bags, and when I unpacked I found three printed memos from the Transportation Security Administration indicating that they’d each been searched.

Now, my bags contained nothing but used clothing, as a scan probably revealed, and I’m a Baby Boomer with no criminal past. So the traditional legal standard for police searches–probable cause–offers nothing to justify uniformed apparatchiks running their paws through my shirts, shorts, and undies. Apparently I was asleep when the Fourth Amendment was repealed.

I didn’t boil my clothes afterward, but I have to say I’m irritated by this incursion into private space. Worse, I flash to the advice of Antonin Scalia, the Supreme Court associate justice, when he was asked a few years back about lingering anger over the disgraceful 2000 ruling he signed that gave the presidency to George W. Bush. “My usual response is, get over it,” Scalia said.

Now, “getting over it” can be the voice of maturity, sympathetic words to console and encourage a child. But it can also counsel acceptance of the unacceptable. And there’s entirely too much of that sort of “getting over it” going around.

Consider the refusal of the Obama administration to tell the public just what basis it uses in deciding whom to kill. That formulation is a little bald, but basically accurate. Lawsuits brought by the American Civil Liberties Union and The New York Times sought to force the administration to share its legal rationale for targeting and killing individuals targeted as enemies.

Included are U.S. citizens, notably U.S.-born Anwar al-Awlaki and his 16-year-old son, both killed in separate 2011 drone strikes in Yemen.

This is a big deal. Normally, when the government kills a citizen it’s called capital punishment, and happens only after criminal indictment, trial, Continue reading “On getting over it”