@RABEL222,
WHO WATCHES THE WATCHMEN?
The Conflict Between National Security
and Freedom of the Press
By Gary Ross, National Intelligence University, Washington, DC, July 2011
The Scope of Unauthorized Disclosures in the United
States
I’ve been told that The New York Times has so much classified material,
they don’t know where to store it.82
- President Gerald Ford
In the 232 years following the publication of Paine’s “Common Sense”
articles, and the 206 years since Jefferson’s second inaugural address,
unauthorized disclosures by the U.S. media have persisted. Former
Presidents, from Harry S. Truman through George W. Bush, have voiced
their frustration over the practice.83 In 2009, President Barack Obama
joined his predecessors in expressing his displeasure.84
Quantifying precise figures for unauthorized disclosures in a historical
context is difficult. Former Presidents have provided some insight, if
only through hyperbole. In 1951, President Truman remarked “ninetyfive
percent of our secret information has been revealed in newspapers
and slick magazines.”85 Twenty years later, President Nixon discussed
administration efforts to respond to “massive leaks of vital diplomatic and
military secrets.”86 In declassified minutes from a 1974 National Security
Council meeting, President Ford noted: “I’ve been told that The New York
Times has so much classified material, they don’t know where to store
it.”87 When asked in 1981 to identify the biggest disappointment of his
presidency, President Reagan cited “the inability to control the leaks.”88 In
1985, President Reagan famously complained of being “up to my keister
in leaks.”89
Publicly available information concerning the actual number of
unauthorized disclosures during a given period is rare.
In 1988 former
DCI Robert Gates wrote that there had been approximately five hundred
documented disclosures between 1979 and 1988, 50 a year during a tenyear
period.90 In November 2000, an NSA official testified before the House
Permanent Select Committee on Intelligence (HPSCI) that the NSA had
identified 40 instances in 1998 where signals intelligence capabilities were
disclosed for the first time in the media and an additional 34 instances in
1999.91
During testimony before the SSCI in June 2000, Attorney General
Janet Reno stated that the Justice Department had been notified of an
unauthorized disclosure
approximately fifty times a year over “the last
several years.”92 This is equivalent to the level identified by DCI Gates,
approximately one unauthorized disclosure per week. Reno added that
virtually all agencies within the Intelligence Community and the Defense
Department had suffered “severe losses of sources, methods, and important
liaison relationships” as the result of unauthorized disclosures.93
The most recent publicly available statistics were provided to the Senate
Judiciary Committee by the Department of Justice in 2010.94
The Justice
Department reported receiving an average of thirty-seven notifications of
unauthorized disclosures annually between 2005 and 2009. The relative
consistency in the number of unauthorized disclosures over the past 30
years demonstrates their persistent nature, independent of which political
party controls the White House or Congress.
Information regarding
the number of criminal investigations initiated
by the Justice Department in response to an unauthorized disclosure is
also seldom released. In 1980, it was reported that the Federal Bureau of
Investigation (FBI) had conducted 25 criminal investigations involving
disclosures over the prior two years,
approximately 12 per year.95 A 1985
article revealed that there had been an average of 20-30 active unauthorized
disclosure investigations between 1981 and 1985.96 In response to a query
from the SSCI, the Department of Justice reported that the FBI had
completed 85 investigations predicated on an unauthorized disclosure
between September 2001 and February 2008,
approximately thirteen per
year.97
Several factors may contribute to the persistent supply and demand for
disclosures. Continued partisanship between political parties seeking to
gain an advantage in a narrowly divided Congress, or a similarly divided
public, is one possible factor. The increased quantity of information
required to support U.S. interests worldwide and improvements in the
quality of U.S. collection capabilities might be another. The abundance of
print, broadcast, and electronic media outlets scrutinizing government
activity is likely to play a role. A desire by the public to remain informed of 11
government activity during a time of war may also help sustain this “leak
economy.” The consistent rate of disclosures over the past three decades,
however, demonstrates that this economy is not entirely dependent on
ongoing military hostilities.
History has also shown that unauthorized disclosures can sometimes take
on an eerily repetitive quality. Other than a change in adversary and a 50-
year improvement in technology, a striking similarity exists between a
1958 disclosure concerning the ability of military aircraft to monitor Soviet
missile tests98 and a 2007 article disclosing the monitoring of Chinese
missile tests by satellite.99
History also appears to have repeated itself in 2005 when the New York
Times published an article disclosing the existence of a National Security
Agency (NSA) program to monitor specific domestic communications
without a warrant. Thirty years earlier, in 1975, the Times exposed
Operation SHAMROCK, a decades-long classified program that allowed
the NSA and its predecessors to duplicate and analyze magnetic tapes of
international telegrams.100 Continuing the parallel, the 1975 article resulted
in Congressional hearings to determine whether adequate oversight was
performed. The hearings also examined the legality and propriety of the
program.
[...]
Of the approximately 1,500 unauthorized disclosures and 200 criminal
investigations over the past three decades, an indictment rate of .3% (4
out of 1,500) and a conviction rate of .07% (1 out of 1,500) are clearly
ineffective for an approach focused on criminal enforcement. Whether
the four indictments or single conviction are considered appropriate,
they have not created a significant deterrent for government employees to
discontinue disclosing classified information to the media.
http://fas.org/sgp/eprint/ross.pdf
