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Wednesday, October 22, 2014

Congress should amend the Espionage Act to decriminalize the leaking of national security information as a general rule. We should not require government officers of employees or contractors to choose between their conscience and the law.

There should be two exceptions: when the publication has either caused direct, immediate and crippling harm to U.S. sovereignty; or death or serious physical injury to a U.S. person.


The leaker could still be fired by his government or private employer for breaching a non-disclosure agreement unless the leak revealed lawbreaking, for instance, a violation of the Fourth Amendment right to be let alone.

Leaks routinely benefit the nation because the executive chronically crucifies truth on a national security cross to aggrandize power and to initiate war. The people pay a fearful price in lost lives and limbs and stupendous expenditures The Vietnam War is exemplary but not exhaustive.

President Lyndon B. Johnson lied about a second North Vietnamese torpedo attack on U.S. vessels to justify the 1964 Gulf of Tonkin Resolution

Presidential lies about the progress of the war were later assembled in the Pentagon Papers. The government unsuccessfully attempted to prevent publication in the U.S. Supreme Court by lies about the ramifications for national security.

Solicitor General Erwin Griswold falsely argued that publication would cause a “grave and immediate danger to the security of the United States.” He later acknowledged in a Washington Post op-ed that, “I have never seen any trace of threat to national security from publication [of the Pentagon Papers]. Indeed, I have never seen it even suggested that there was such an actual threat … It quickly becomes apparent to any person who has considerable experience with classified material that there is a massive overclassification and that the principle concern of the classifier is not with national security, but with government embarrassment of one sort or another.”

The government’s lies about the Vietnam War eventuated in the loss of more than 58,000 American lives and expenditures approximating $1 trillion in 2011 dollars.

President Harry Truman lied in minimizing the Korean War as a “police action.”
President William Jefferson Clinton lied in asserting that an epidemic of warfare would infect Europe and our NATO allies if the United States neglected to intervene in Bosnia.

President George W. Bush lied about weapons of mass destruction in Iraq.
President Barack Obama lied about an imminent genocide in Libya and a clear and present danger to the United States posed by the Islamic State to initiate presidential wars.

These recurring White House prevarications bring to mind the words of President Ronald Reagan voiced in a different context: “Trust but verify.”
If the lies had been exposed to the American people, the United States might have been saved from several gratuitous, costly and counterproductive conflicts.

The Constitution expected Congress to perform that urgent task and to thwart presidential wars through the power of the purse or public opinion. But the legislative branch has become invertebrate on national security matters in a cowardly flight from responsibility.

Leakers and the media are the best available surrogates to bring transparency to national security.

Secrecy is the mother of sloth, incompetence and lawlessness. Sunshine is the best remedy or deterrent. That is the story of Watergate, Deep Throat, and Woodward and Bernstein.

Edward Snowden’s leaks were indispensable to an informed debate and litigation over the National Security Agency’s collection of intelligence on the entire U.S. population and the constitutional imperative of privacy.
On the other hand, the putative harm caused by Mr. Snowden’s disclosures fall far short of any sensible criminal threshold. Director of National Intelligence James Clapper claims Mr. Snowden has caused “profound damage,” and House Intelligence Committee Chairman Mike Rogers has maintained that the disclosures “are likely to have lethal consequences for our troops in the field.” But neither the Tweedle Dee nor the Tweedle Dum has been able to identify even one battle, life or limb that has allegedly been lost or terrorist plot that allegedly succeeded because of Mr. Snowden.

Bradley Manning’s WikiLeaks disclosures did not cause the death of even one person, according to the government’s own damage assessment presented at sentencing.

James Madison, father of the Constitution, explained that government by the consent of the governed requires an exacting threshold of harm to justify punishing a leaker of national security information: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”

For more information on Bruce Fein, visit brucefeinlaw.


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