Leaks vs. liberty

Posted: Feb 04, 2005 12:00 AM

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press?"

 WASHINGTON, D.C. -- On a flight to the West Coast last week, I was seated beside a young, apparently well-read computer wizard who offered a flattering appraisal of my reporting for FOX News while embedded with U.S. troops in Iraq and Afghanistan.

 Regrettably, he then picked up a review of the "Al Qaeda Reader," a forthcoming compilation of writings by Osama bin Laden and his ilk detailing their hatred for the United States. Pointing to the book title, my traveling companion suggested that the publisher should be "sent to join his friends in Guantanamo." While I understood the sentiment, I'm sure I lost a fan forever when I disagreed. Here's why.

 The First Amendment to our Constitution continues to spark unremitting scholarly, political and legal debate as to what Messrs. Madison, Mason, et al. had in mind when it comes to religious liberty. Yet, in those same erudite circles, unless it has to do with regulating broadcasts or disseminating child porn, almost no one suggests that government regulate what can be published.

 Even when the lives of others are put at risk, the United States, practically alone in the world, zealously protects purveyors of government secrets or classified information. Unlike our British brethren, we're never going to have an "Official Secrets Act" -- nor should we. The legacy of Tom Paine, pamphleteer, is that a "free press" is supposed to help check the power of government. But prosecuting publishers is different from locking up leakers. History is a pretty good guide -- but who bothers with history?

 In the summer of 1942, shortly after the Battle of Midway, Robert McCormick, publisher of the Chicago Tribune and a bitter political opponent of FDR, learned that America's first victory at sea in World War II had been achieved by breaking the Japanese Naval code. It was true, and though the information was highly classified, McCormick went ahead and published the story.

 Roosevelt was apoplectic. He demanded that Attorney General Francis Biddle have McCormick arrested. He didn't -- Biddle knew that even under wartime censorship rules it would be a tough case to make. Further, Adm. Ernest King, the chief of naval operations, believed that any acknowledgement that the story was correct might lead the Germans to change their codes, a risk he was unwilling to take. In the end, the Japanese stopped using their JN-25 code, but Germany continued to use theirs. Americans were at greater risk in the Pacific but were scoring victories in Europe, and McCormick continued to enjoy the profits of his highly successful newspaper.

 The problems of prosecution that Biddle and King saw in the McCormick-code case is one that bedevils us today, and it will continue to as long as we mistake who the law-breakers are and insist that the government exact retribution for what most of us consider to be deplorable -- if not illegal -- behavior. Setting aside the discussions of World War II censorship restrictions, the serious criminal wasn't McCormick or even his reporter: It was the "leaker" -- probably in Hawaii -- who divulged the highly sensitive information about breaking the Japanese code.

 Unfortunately, under the guise of protecting a "free press," our courts have now all but decided that the "leakers" warrant equal protection with those who print the illegally handed-over classified information. To compound the crime, our media make "heroes" of those who "courageously" obtain and publish classified information with no regard for the consequences -- even when it means increased danger or death for American servicemen. Wars seem to spawn such counterfeit champions.

 There is no bravery in Seymour Hersh publishing the detailed information he claims came from uncorroborated, "high-ranking," anonymous sources about American efforts to collect intelligence in Iran concerning its nuclear weapons program. If the consequence of the story is that American commandos or spies die in Iran, who but their families will know or care? It's happened before.

 In 1975, Phillip Agee published the names of active and former CIA operatives. Among those named was Richard Welch, then the CIA station chief in Greece. Within weeks, Welch was dead -- assassinated by Marxist "November 17" terrorists in Athens. His son, a fellow Marine, CIA Director William Colby and I met his body as it was carried off the C-141 at Andrews Air Force Base.

 It takes no courage for William Arkin, the author of the forthcoming book "Code Names," to print for all the world to see coded information and classified data that has been used to keep America more secure. In an effort to hype the sales of his book, Arkin maintains that some of what he publishes is still classified. But he's protected unless he violated a nondisclosure agreement and our beleaguered Justice Department chooses to pursue the matter.

 That, too, has happened before. In 1977, Frank Snepp, a former CIA officer, thought he could ignore nondisclosure agreements he had signed and ride the First Amendment to fame and fortune. He published "Decent Interval," an anti-Vietnam War screed containing classified information he had sworn to keep secret. He lost the court battle and forfeited all profits, but escaped the prison term he so richly deserved.

 And therein lies the greater part of the solution to protecting sensitive information in this new world disorder. Forget prosecuting publishers. Don't bother pursuing phoneys like Hersh. Insist that those who have access to classified information abide by the nondisclosure agreements they have signed. Use polygraph tests to randomly check on compliance -- just like we check for drugs. When government employees break the law, indict them. And as for the rest of us, just don't buy trash like the "Al Qaeda Reader."