Commentary: Total information awareness: A chance encounter raises questions

LONDON — In early November, the United States came within a pen stroke of dramatically curtailing the news medias freedom of inquiry into government affairs. Had the Intelligence Authorization Act of 2001 been signed into law as passed by Congress, it would have completed an astonishing reversal of the common observation that the American press is the freest in the world and Britain's the most restricted.

The cliché is already seriously incorrect. In today’s Britain, officials no longer face criminal penalties for leaking official information if it turns out not to be damaging. Journalists do not face penalties for talking to them or for receiving their papers, though a decade ago, it was completely different. British writers are also noting the effects of having been granted on October 2, for the first time ever, a Bill of Rights.

No one is starry-eyed about the effect of the U.K. Human Rights Act 2000, which places the European Convention on Human Rights into British law. But British subjects (not “citizens”) have never before been granted explicit civil rights and, until recently, had to rely on the shifting sands of judges feelings as expressed in the tradition of common law. Freedom of expression is now enshrined in something that begins to look like the Bill of Rights the colonialists won for themselves more than two centuries ago. A breeze of freedom has begun to blow into some dark and dirty places.

Across the water, the trend has been just the opposite.

In the United States, had President Clinton not vetoed the bill on November 4, the Intelligence Authorization Act would have criminalized the conduct of “any person . . . with authorized access to classified information” who disclosed any of it. Section 304 of the proposed Act offered accused leakers no leeway or loophole, provided they knew “or [have] reason to believe [the information] has been properly classified by appropriate authorities.” Many of the classification regulations currently appear not in open statute but in presidential or executive directives, themselves highly classified.

The Intelligence Authorization Act is soon to be law, minus what amounted to a new U.S. Official Secrets Act. But many expect Congress to resurrect that provision next year. One of the measures two Republican sponsors, Senator Richard Shelby, chairman of the Senate Intelligence Committee, accused Clinton of “subordinating national security to political concerns” and blamed the veto on an “hysterical, largely inaccurate, but extremely well-timed media-lobbying blitz.”

Bush might approve restriction

Steven Aftergood, a senior research analyst at the Federation of American Scientists who directs the groups Project on Government Secrecy, said he believes President-elect Bush would likely approve such a restriction. “Certainly his father would have and, at least initially, President-elect Bush is surrounding himself with many members of his fathers national security team.” The elder Bush was director of the Central Intelligence Agency before serving as vice president, then president.

If such a measure becomes law, U.S. media will face a historic reversal to the conditions faced by journalists in Britain in the 1990s.

There, the first Official Secrets Act was passed in 1911. Prior to this, there was no statute criminalizing any disclosure. After enactment, the slightest disclosure by journalists or officials became a criminal offense punishable by a two-year jail term. Until 1989 (when reform took place), journalists in London joked that it was a criminal offense even to be told how many cups of tea were served daily in the Ministry of Agriculture canteen.

We were arrested in 1977

The joke was not too far off the mark. In 1977, another journalist and I were arrested for having a conversation with a former Army corporal who had been a member of Britain’s military signals intelligence organization during the 1960s, working at the Middle East listening station on Cyprus. Under the 1911 Official Secrets Act, we were accused of having “received official information,” which the ex-soldier had told us during the conversation.

We were found guilty. It was left to the wit of the trial judge to make sense of this. Having seen the Alice-in-Wonderland case presented by the government (some of it in camera), he annulled our convictions after they were imposed. We went free. It was the old Act itself that was the offense, and its terms became even more widely derided.

Notoriously, Britain’s original Official Secrets Act was rushed through Parliament in a hot summer, with almost no one attending the hearings. It had originated not long before, among a secret cabal of security officials on the Imperial General Staff.

In 2000 in Washington, America did just the same. The provision emerged within the intelligence community and progressed to the White House with little debate, with important organs such as the Senate Judiciary Committee excluded from commenting or amending the bill.

The astonishing parallels between the U.S. and Britain on official secrets do not end there. It is probably no coincidence that both countries enacted or (so far) attempted to enact Draconian secrecy controls at the zenith of imperial power, accompanied by paranoia for the future.

In 1911, Britain was at the peak of global reach and power. The Royal Navy ruled the seas, and the sun could never set on the British Empire.

But imperial rulers in London felt fear, not confidence. Whipped up by partisan media of the day, newspapers and gentlemen’s clubs had been full of talk about German spies landing in the north of England in the guise of hunting parties. The new bill passed quickly in a national mood of hysteria.

Parallel with Wen Ho Lee case

Washington has already seen its version of the German hunting party mythology, in the shape of the prosecution of former Los Alamos nuclear scientist Dr. Wen Ho Lee, who was accused of obtaining computer data on nuclear weapons design and passing this on to the Chinese. After nine months spent in solitary confinement, Dr. Lee went free with all but one of the felony charges against him dropped.

The parallels are precise. Asia is in the ascendant, and China is universally perceived as the coming challenger to the present U.S. dominance as the sole superpower.

The trans-Atlantic contrast in approaches over official secrets was even sharper after the act had been sent to the White House for the presidents signature. At the same time in Britain, a former Army intelligence officer was facing trial at the top London criminal court, the Old Bailey. The defendant, Lt. Col. Nigel Wylde, had been decorated for gallantry in defusing terrorist bombs in Northern Ireland during the 1970s. During the Cold War, he had directed and worked in an undercover technical team spying from behind the lines in former East Germany. As a retired officer and computer consultant, he had shared information about how computer surveillance worked in Northern Ireland with author Tony Geraghty. After Geraghty’s book The Irish War was published in October 1998, both men were arrested and ultimately charged with passing “damaging” information.

Had the case gone ahead, it would have been the first trial of its kind since 1978, when we faced trial in the Cyprus signals intelligence case. This made the charge against Geraghty particularly risky for the government, especially since changes made as a result of our case meant that the government would have to prove to a jury that the revelations had caused, or were likely to cause, real damage. After a years wait, the government did not have the nerve to continue against journalist Geraghty, and his case was dropped. Wylde continued to face trial and two years in jail.

On November 1, however, Wylde also walked free. Under the 1989 Official Secrets Act, it did not matter that the government could show that the information passed on by him was known to be classified. The prosecution had to show that the information was a “damaging disclosure,” likely to lead to death, injury or “serious” damage. Critically, conviction did not flow from the fact that the information in the case had been “properly classified by appropriate authorities” as the proposed U.S. measure would have had it.

U.S. proposal was more restrictive

Under the proposed U.S. law, an American Colonel Wylde would have faced three years in a federal penitentiary and would have been denied any opportunity in court to argue that the leaked information did not damage U.S. security.

When the 1989 British law was passed, the government had intended that the defendant would bear the burden of proof in showing that the information passed was not damaging, not the other way around. But this iniquitous provision was thought by lawyers to be likely to fail under the new Bill of Rights. So the test was could the government prove damage?

In Wylde’s case, they hadn’t a hope. Instructed by defense lawyers to prepare a comparison between the “secrets” revealed in The Irish War and what was already in the public domain, I submitted a 75-page report, accompanied by 700 pages of published material. The government dropped the charges against Wylde and, in a letter to the defense team stated, “The reason for this course of action is that having had the opportunity to consider the defense expert’s report [we] no longer consider that there is a realistic prospect of conviction.”

Had this not happened, the full panoply of secret (in)justice would have proceeded. Army witnesses would have been decreed to be anonymous, and evidence would have had to be given in secrecy to protect non-existent secrets. The trial still would have been a fiasco. It would just have taken a little longer and hurt more.

No one who has studied the progression of Dr. Lee from nuclear laboratory to jail and out again, or the media, political and FBI handling of the matter, could doubt that the U.S. legal system is immune from this sort of executive misjudgment and misbehavior. But for a soon-to-depart president, the U.S. political system has already shown itself as bad as the British were in 1911.

And it may yet be. Despite the hope that the Supreme Court will test the law against the First Amendment and give the vital sources of the press more latitude, the chilling effect will remain. No one will forget that, 25 years after Watergate, congressional intelligence committees set up to oversee intelligence agencies acted instead to represent the agencies they manage, not the citizens that elected them.

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