Free Speech Is About To Disappear

The USA Senate is currently debating a dangerous bill that, if passed, could have broad consequences for press freedom and the public’s right to know.
The bill’s provisions, buried in the annual Intelligence Authorization Act, are designed to stop leaks of classified information to reporters-a premise worrying in itself-but it is written so sloppily it will also severely impair government transparency and prevent the media from reporting on national security issues.
The problems with this specific bill are extensive and severe. While the New York Times stated in an unusually forceful editorial last Friday, it has been “drafted in secret without public hearings” and bars most government employees from giving press background briefings, even if the data is unclassified-vital for media organizations when reporting on complex dilemmas. Another provision prohibits officials from writing op-eds or appearing on t.v., again, even if the information is unclassified-a clear prohibition on protected speech.
Classification expert Steven Aftergood documented several specific issues with the bill’s broad definitions, most notably that the bill doesn’t differentiate between correctly and improperly classified information. Even the Freedom of Information Act, which carries a broad exception for classified information. insists it must certainly be “properly classified.”
This really is specially troubling considering that the government’s secrecy system has ballooned to absurd proportions, to the stage where virtually every government action in the national security or foreign policy realm has been stamped classified, many times improperly. Information is regularly classified to cover embarrassing details, government waste, corruption, as well as serious constitutional violations. The former head of the U.S. classification process, J. William Leonard, recently called the system “dysfunctional” because it “clearly lacks the ability to differentiate between trivial information and that which can truly damage our nation’s well-being.” The bill’s definition is virtually an invitation for government officials to help use secrecy to hide their conduct.
Of course, if classification were used to hide such wrongdoing, “there is no exception carved out for whistle-blowers or other press contacts that advance the public’s awareness,” as the New York Times reported. At precisely the same time, Congress, its staff, along with other advanced officials are exempt from most of the bill’s provisions.
The National government had been much too aggressive in prosecuting whistleblowers-its charged more leakers than all other administrations combined-and the latest, wide ranging FBI investigation in to new leaks is “casting a distinct chill over press coverage of national security issues as agencies decline routine interview requests and refuse to provide background briefings” as the New York Times reported on its front page last Thursday. The brand new anti-leaks bill gets the potential to permanently alter just how press can interact with government officials. Whilst the New York Times editorial board said in its criticism Friday, this won’t just chill the press, but potentially “undermine democracy by denying Americans access to information necessary to national debate on critical issues like the extent of government spying powers and the use of torture.”
Possibly the most disturbing aspect of this bill may be the fact that it’s been proposed at all. As Steven Aftergood notes, “there is something incongruous, if not outrageous, about the whole effort by Congress to induce stricter secrecy in the executive branch, which already has every institutional incentive to restrict public disclosure of intelligence information.” Aftergood reminds us that, before, leaks led to investigations in to the programs exposed and also to “substantive” Congressional oversight. In stark contrast, the response to leaks in the years since September 11, 2001-by both Congress and the Executive-has gone to prosecute whisteblowers-and even reporters-and to ensure much more information is kept secret from the American public.
Take, as an example, the national debate on the use of classified drone strikes in overseas military operations. While the New Yorker’s Steve Coll wrote, the brand new book by Newsweek reporter Daniel Klaidman on President Obama’s usage of classified drone strikes discusses “the first instance in American history of a sitting President speaking of his intent to kill a particular U.S. citizen without that citizen having been charged formally with a crime or convicted at trial.” Similarly, when the New York Times reported on U.S. cyberattacks against Iran-another target of recent leak investigations-the Times said the decision to engage in offensive cyberattacks was so consequential and unprecedented, that it is much like “the first use of atomic weapons in the 1940s.”
They’re just two cases of decisions by the President which — whether you agree with them or not– should be debated and scrutinized in both the halls of Congress and the public sphere. Yet as they are hidden behind giant walls of secrecy, there is no oversight or accountability, and the public has no say in decision as to whether the country should be doing them at all.