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Posted at 5:00 PM ET, 05/13/2010

Backchannel chatter: Secrets of the leaks trade

By Jeff Stein

Sen. Benjamin L. Cardin (D-Md.) wants to see how the 1917 Espionage Act can be updated to reflect the cottage industry of official Washington: leaking.

One of the witnesses at a hearing Cardin held Wednesday, former CIA general counsel Jeffrey H. Smith, offered a particularly revealing example of how the insiders' game of planting stories works, and why one man’s illegal leak is another’s background briefing.

“I've known members of Congress of both parties to complain that the administration will come up and brief the Congress on some particular project or a program and say this is top secret. You can't talk about it. And then it leaks that very afternoon,” Smith told Cardin and Sen. Jon Kyle of Arizona, the ranking Republican on the Judiciary subcommittee on terrorism and homeland security.

“And it leaks in a way that the members of Congress disagree with, because the administration has decided to put out their version of things, and Congress feels constrained from talking to the press and saying, well, we disagree with that, we think it's bad policy,” Smith said.

“And they're inhibited because of the classification that the administration has put on it.”

Smith added:

“It's done by both parties and both administrations. And it's not right. And it's certainly not right, then, to sort of threaten prosecution to somebody, particularly a member of Congress who chooses to say something to the press that is counter to what the administration has put out.”

After two hours of testimony like that, Carlin and Kyl agreed that updating the espionage statute, which criminalizes national security leaks, will probably require tinkering with a Rubik’s Cube of laws governing secrets, from First Amendment and whistleblower protection statutes to court procedures for handling classified information.

“It clearly will require us to look beyond just the espionage statute itself.…” Cardin said.

“But what we were looking at is to try to set up the right formula for the types of activities that compromise our national security. I think, as Mr. Smith said, changing the definition is one that I think we all would agree needs to be done.”

Kyl called the session “a good example of a hearing that could actually produce something useful, as opposed to much of what we do….”

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By Jeff Stein  | May 13, 2010; 5:00 PM ET
Categories:  Backchannel chatter, Intelligence, Justice/FBI  
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Next: How will the CIA deal with 'rendition' supervisor?


There's a story here, but this column doesn't tell it. How, exactly, does Senator Cardin want to change the laws against unauthorized disclosure of classified information?

The way the law reads today, it basically says "if you have a clearance and you spill secrets, it's a crime." Just how would Cardin change that. Would he make it criminal for ANYONE to divulge classified information (a grossly unconstitutional move)? Or would he carve out an exception for Congressmen to leak "their side" of a classified story? Either of those options stinks to high heaven.

So, don't make us speculate: what does Cardin want to change?

Posted by: kcx7 | May 13, 2010 5:37 PM | Report abuse

Busy leaking and not sharing meaningful intelligence, so jets are flying into buildings. You were spilling the beans instead of counting them. Character assassins at work. Let me count the ways. The body count was no secret. Now they're patriot actors.

Posted by: tossnokia | May 13, 2010 10:44 PM | Report abuse

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