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Leaking Information About the Bush Administration May Be Illegal
Bush's Unofficial Official Secrets Act
By John W. Dean
FindLaw
September 26, 2003.

Except in a few highly egregious circumstances relating to national security information (espionage and atomic secrets), the U.S. Congress has, in the past, never made it a crime to leak information to the news media. As a result, for over two hundred years, our government has operated without an "official secrets act."

In contrast, Great Britain and other nations have long criminalized the disclosure of government information. But there's a crucial difference between them and us: They lack an equivalent of our First Amendment.

Despite the free speech costs, President George W. Bush has created the equivalent of an official secrets act for America - and it is only growing stronger. Indeed, by cobbling together provisions from existing laws, Bush's Justice Department has effectively created one of the world's most encompassing, if not draconian, official secrets acts.

If Attorney General John Ashcroft has his way, we will see many more prosecutions of this ilk. Ashcroft has told Congress he wants a "comprehensive, coordinated, Government-wide, aggressive, properly resourced, and sustained effort" to deal with "the problem of unauthorized disclosures."

It's important to watch Ashcroft's lips here: He said "unauthorized" disclosure - not, say, disclosures of classified information relating to national security, which would be a very different matter. Plainly, he is targeting anyone who leaks information the Bush Administration would rather not have made public - even when security is in no way at risk.

During the Clinton Administration, an effort was made to actually enact official secrets legislation. But Scott Armstrong - the Executive Director of the Information Trust, a secrecy watchdog in Washington - realized what was occurring, and mounted a major lobbying effort to get Clinton to veto it, and he did.

This time, however, it is already too late, for Ashcroft has outfoxed the watchdogs. Rather than pressing for new legislation that might spark similar controversy, he has decided to twist and distort laws already on the books to create the equivalent of such legislation. However, these laws were never intended to criminally prosecute such conduct.

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