Since 1919, First Amendment law has been much more fully articulated, in part through a long line of Supreme Court decisions. In contrast, the Espionage Act has garnered much less attention, in part because it does not directly implicate the Bill of Rights. The law reads, in part
Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book,signal book, sketch, photograph, photographic negative, blueprint,plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to
receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it
can be imprisoned for up to ten years.
The intent of the act clearly is to protect the operations of the military from harm resulting from spying. As every president from Wilson to Obama has insisted, violation of this law can place American soldiers immediately in harm's way, and could result in disaster for whole campaigns. Given that the constitution gives the president and Congress explicit power to maintain an army, it seems perfectly reasonable to say that the government has the power to protect it from espionage.
The problem is that the government too often has used the law to shield itself from having to reveal less obviously beneficial secrets. In one early example, the federal government claimed the right to protect military secrets even from judicial scrutiny when the widow of an Air Force officer sought information on the cause of the plane crash that killed her husband. In Reynolds v. United States, the Supreme Court ruled that all the government had to do was say secrets were involved, and everyone had to keep hands off. When those documents finally were released 50 years later, we learned that there were no military secrets involved at all, but that a failure of proper maintenance, which would have exposed the government to embarrassment and legal liability, had killed the airmen. The government lied, and then used the courts to cover its lies. Since then, we know the Nixon, Reagan, Bush, Clinton and Bush administrations also cloaked their activities in ways that were later found to be unethical at least and possibly even illegal.
More recently, according to stories in The New Yorker magazine and CBS's "60 Minutes" news program, the Obama Administration is also stretching the meaning of the law to meet questionable goals. In "The Secret Sharer," Jane Meyer describes the Justice Department's (over?)zealous prosecution of Thomas Drake, a former executive in the NSA who leaked secret documents to the press. Drake says that he not a spy, but a whistle-blower, uncovering graft and incompetence, not secrets important to the US government.
Therein lies the trouble. Without utter secrecy, it's possible that the operation to assassination Osama bin Laden would not have worked. If the government fails to protect its own secrets, such missions might never work. On the other hand, not everyone agrees that the mission against bin Laden was legal -- I, for one, have my doubts. In that case, a full and unfettered public debate about targeted killings, if not specific operations, may be absolutely necessary for the proper functioning of our government. We can't have that debate without the kind of information withheld in cases like these.
My own view is that, except in the case of specific military information having to do with current operations, secrecy is gnerally not good for government. Transparency, as Obama himself once argued, is better.
No comments:
Post a Comment