Covering a multitude of sins (continued)

What’s particularly disturbing about the Supreme Court’s refusal to intervene in M.K.B. is that it goes against a long tradition of openness in the courts. In 1948, the Supreme Court reviewed and ruled unconstitutional the first secret criminal case documented in American judicial history. A Michigan judge had convicted and sentenced a man for criminal contempt of court in a secret session. The accused had no access to counsel and no opportunity to call witnesses in his defense. In that case, In re Oliver, the Supreme Court emphasized that the trial’s secrecy made it inherently unjust and unacceptable. From the English Star Chamber to the Spanish Inquisition, the court wrote, secret trials throughout history have posed "a menace to liberty." In invalidating the secret trial, the court emphasized "this nation’s historic distrust of secret proceedings" and asserted, "The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power."

In 1980, the Supreme Court frowned on another secret trial in Richmond Newspapers v. Virginia. In that case, a Virginia judge — at the request of the defendant — closed the trial to press and spectators, ostensibly to avoid distracting the jury. Once in closed session, the judge excluded all the prosecution’s evidence, removed the case from the hands of the jury, and acquitted the defendant. Although the defendant was understandably happy with this turn of events, the local news media were not, and they filed suit to prevent such closed trials from occurring in the future. The Supreme Court ruled in favor of the newspapers, holding that under the First Amendment, the public and the media have a constitutional right of access to the trial courtroom, even if the defendant, prosecutor, judge, or any other party has reason to prefer secrecy.

It’s not just the high court’s refusal to hear the M.K.B. case, however, that suggests this tradition of judicial openness may be falling victim to the administration’s cries of "national security." In June 2003, the Supreme Court refused to reopen an old case in which the federal government had improperly used the national-security justification to mislead the high court and shield itself from liability. The case began in 1948, when a B-29 bomber carrying experimental radar equipment crashed, killing most on board. The widows of the dead radar engineers filed suit for negligence. In 1953, the military successfully argued to the Supreme Court that the accident report from the crash should not be released to the plaintiffs or even to the trial judge, because to do so might expose information about the radar technology and thereby endanger national security. But 50 years later, in 2003, the newly declassified accident report revealed the truth: the report disclosed nothing about experimental radars, but described how improper aircraft maintenance, insufficient training, and a series of human errors — in other words, government negligence — had caused the accident. To use the Khrushchev analogy, the foolishness of the government turned out to be the state secret under protection. Yet on June 23, 2003, the Supreme Court denied, without comment, the families’ petition to reopen the case.

Gagging government workers

Attorney General John Ashcroft’s Justice Department has been working overtime to choke off the flow of sensitive information to the press. He’s done so by creating an environment hostile to disclosure, with severe penalties for officials who defy the drive to keep more and more aspects of government operation under wraps. Ultimately, Ashcroft’s strategy is likely to have a profound impact on the people’s ability to discuss a vast array of subjects related to the government’s war on terrorism by making government employees afraid to provide useful information to the press and public.

On December 6, 2001, during an appearance before the Senate Judiciary Committee to defend the Justice Department’s response to the 9/11 attacks, Ashcroft told senators that his department wanted a "comprehensive, coordinated, government-wide, aggressive, properly resourced, and sustained effort" to combat what he termed "the problem of unauthorized disclosures." The tip-off that Ashcroft was talking about expanding the breadth of government secrecy, rather than merely stiffening penalties for leaks of classified information, was that he spoke of "unauthorized disclosures" of classified and "sensitive" information — a much broader category.

Significantly, Ashcroft cobbled together new interpretations of existing statutes rather than pushing for new laws to make non-classified disclosures illegal. To seek legislative approval for broader legislation would have prompted a debate on where to draw the proper line between the government’s legitimate secrecy requirements and the public’s need and right to know. Had he ignited such a debate, Ashcroft would have had to explain why it is in the public interest to criminalize the release of non-classified information whose disclosure can be embarrassing but rarely has any real implications for national security. And if he lost that debate, it would be very difficult for the Justice Department to go against the Congress’s expressed view by prosecuting people under expanded interpretations of existing statutes. Hence, Ashcroft chose simply to leave lawmakers out of the process.

Since that 2001 appearance before the Senate Judiciary Committee, Ashcroft’s Justice Department has been quite creative in the use of existing laws to punish whistle blowers and others whose disclosures benefit the public. (He is able to do this partly because the Whistleblower Protection Act offers few obstacles. While the act does offer generous protections for those who fit the legal definition of "whistle blower," a series of court decisions has made it extraordinarily difficult to meet that definition. For example, disclosures to a co-worker or other person not directly in a position to take corrective action are not protected. And to receive anti-harassment protections, a whistle blower must present "irrefragable proof" that the government is not acting correctly, fairly, lawfully, and in good faith.)

In February 2002, the Justice Department indicted Jonathan Randel, an intelligence researcher with the Drug Enforcement Agency, for leaking secret but unclassified DEA investigative information to a freelance investigative reporter writing a series for the London Times on drug trafficking in Belize. Based on Randel’s leak, the reporter published a controversial article detailing the DEA’s money-laundering probe of a Belize-based bank owned by one of the Tory Party’s biggest donors, British businessman Lord Michael Ashcroft (no relation to our attorney general). The indictment was based upon two statutes — one criminalized improper access to a government computer, and the other made it a federal crime to use any of the modalities of interstate communication to effectuate a fraud or other crime (the two are linked together: by using the Internet to transmit the leak, he committed both the crime of improper access and the crime of using interstate communication to further that improper access). Neither statute was written with leaks to the public in mind, but with a stretch here and a stretch there, they could have supported the indictment. Randel chose to accept a one-year prison sentence rather than risk a trial and face the theoretical statutory maximum of 580 years in prison. Though the Randel case hails from the "war on drugs" rather than the "war on terrorism," this new prosecutorial tool — like so many others — will likely be used against those who disclose information relating to the war on terror. Indeed, it is quite clear that one of the DOJ’s major reasons for pursuing this minor case of an unimportant government official who leaked reputational information about a foreign businessman was that it helped establish a broader sweep for federal criminal statutes that, until now, would not have been assumed to cover such conduct.