(update below)

Senator Joseph Lieberman (Official Senate Portrait)

Senator Joe Lieberman (I-CT) appeared on “Fox News Sunday” to discuss recent leaks from the Obama administration; and according to Talking Points Memo, called for a new law that could be used to go after individuals who leak national security information. He specifically suggested that the law be setup to criminalize government officials who leak to the media.

“I think we need to change the law that’s applied here,” Lieberman stated. “The last person to be convicted of a crime for leaking to the media was more than 25 years ago. We’re still using a 1917 Espionage Act that requires some showing of intent and knowledge that the leak would harm the security of the United States.”

He further confirmed his support for lowering the standard for prosecuting and convicting someone for leaking, “If you disclose without authority classified information, you’ve committed a crime.” This is not surprising considering Lieberman is one of the sponsors of an anti-leaks bill called the Securing Human Intelligence and Enforcing Lawful Dissemination (SHIELD) Act, which would make it a crime to publish or disseminate classified information.

The legislation, re-introduced just after WikiLeaks and other media organizations began to publish the US State Embassy cables, was described by an editorial in the New York Times as legislation that “would plainly violate the First Amendment to punish anyone who might publish or otherwise circulate the information after it has been leaked.” The Times also declared, “If we grant the government too much power to punish those who disseminate information, then we risk too great a sacrifice of public deliberation.”

The bill has not gained much traction at all in Congress, despite having the support of another vociferous critic of leaks, Representative Peter King. It was likely to go nowhere before all of this hysteria over leaks, but now the crisis that Republican lawmakers have ginned up may produce a scenario where anti-leaks legislation like the SHIELD bill begins to move through Congress.

Currently, not all leaks of classified information can be considered violations of the law. As Steven Aftergood of Secrecy News points out, “In order to convict someone of unauthorized disclosure of national defense information (not involving disclosure of documents), Judge T.S. Ellis, III, the presiding judge in the AIPAC case, ruled in 2006 that it would be necessary for prosecutors ‘to demonstrate the likelihood of [the] defendant’s bad faith purpose to either harm the United States or to aid a foreign government.’”

What Lieberman is advocating is a law that would lower this standard by providing government with another tool to make it easier to go after whistleblowers, especially ones who go to the media. Already, as Lucy Dalglish of the Reporters Committee for Freedom of the Press says, President Barack Obama is not “inclined to extend whistleblower protections to people who have security clearances who reveal information that is classified. He and the rest of the people in the administration look at that type of release of information to the media and others as being not a whistleblower situation but rather a leak.” This is why the administration has prosecuted more individuals for alleged leaks under the Espionage Act than all previous presidents in history combined.

NSA whistleblower Thomas Drake, one of the six individuals whom the Obama administration has gone after, suspects politicians could generate pressure for an Official Secrets Act. He says the “real and continuing threat” is the “clear and present danger posed by direct assault on the First Amendment by the government.” The anti-leaks legislation Lieberman supports would likely result in “massive preemptive and proactive censorship.” Such an assault would only further chill freedom of the press by making government officials fear speaking with reporters.

This was further affirmed by New York Times executive editor Jill Abramson in a speech given to journalists at the Investigative Reporters and Editors annual conference Saturday night:

The chilling effect of leaks prosecutions threatens to rob the public of vital information. Sources fear legal retribution for simply talking to reporters. Anyone examining the case of Thomas Drake, a whistleblower who was prosecuted, and what his family went through during his ultimately botched prosecution would think twice before ever talking to a reporter. Reporters fear being subpoenaed in these cases and possibly prosecuted themselves. Several reporters who have covered national security in Washington for decades tell me that the environment has never been tougher or information harder to dislodge. One Times reporter the environment in Washington has never been more hostile to reporting.

She explained that the country has never had an Official Secrets Act but now it seems the Espionage Act is being used as a substitute for such a law.

It is true that the hysteria in Washington over leaks deserves attention, but what deserves even more attention is how the outrage amongst lawmakers seems to stem from the reporters who were able to engage in investigative journalism and piece together a detailed feature story about national security policies and issues in Washington. As Abramson said in her speech (and as Times public editor Arthur Brisbane explained in a recent op-ed), the stories on drone killings and cyber warfare did not come from leaks. They came from months of investigative reporting. And the press has a duty and obligation to bear the secrets of government and make key information known to citizens rather than withholding such information to protect government officials from accountability, scrutiny, or embarrassment.

Much of this hysteria is illegitimate. It’s baseless fearmongering. Unfortunately, White House aide David Plouffe played into the hysteria on “Fox News Sunday.” Fox News reported, “When anchor Chris Wallace asked Mr. Plouffe if President Obama had declassified the information, which would have allowed for the information to be leaked, he answered, ‘No, of course he didn’t.’” Wrong answer.

Perhaps, President Obama did not authorize officials to speak to the press, but government officials speak to the press without authorization all the time. They selectively leak details regularly. The proper answer would have been one that pointed out that no damage to national security has occurred in the aftermath of these leaks, but the Obama administration cannot push this reasonable sober message because they have pursued leaks prosecutions like no other administration in history. Plus, it’s also an election year.

The Republicans are shrewdly reinforcing a perception that Obama leaked national security information for political gain. The administration is susceptible to this offense from Republicans; and since the administration has worked hard to convince Americans that Obama is tough on national security, the Republicans can probably get the administration to do whatever it asks. Republicans have demanded a special counsel be appointed to investigate, instead of the two US attorneys appointed by Attorney General Eric Holder. They are unlikely to get the Obama administration to allow a special counsel to investigate the leaks. However, this is a bargaining chip for a future compromise that could include some kind of anti-leaks legislation. The Republicans may not get a special counsel, but Obama may say he recognizes their concern and quietly support a legislative measure to prevent future leaks.

Update

Former State Department spokesperson PJ Crowley explained here in this op-ed a few days ago why leaks aren’t the problem and the country needs more disclosures.