Regarding Secrecy, Part 1: Bill Clinton vs. George W. Bush - What a Difference a Year Makes To the Consitution:
In the dying days of his second term, as the nation was lurching towards its nightmare election day in 2000, on November 4 of that horrid year, President Clinton vetoed a bill. It was HR 4392, the Intelligence Authorization Act for Fiscal Year 2001, and Clinton said that there was a single provision in the bill that he didn't like.
That was Section 303, which read, "Whoever, being an officer or employee of the United States, a former or retired officer or employee of the United States, any other person with authorized access to classified information, or any other person formerly with authorized access to classified information, knowingly and willfully discloses, or attempts to disclose, any classified information acquired as a result of such person's authorized access to classified information to a person (other than an officer or employee of the United States) who is not authorized access to such classified information, knowing that the person is not authorized access to such classified information, shall be fined under this title, imprisoned not more than 3 years, or both."
By massively broadening the definition of felonious disclosure of classified information, Clinton said that Congress "may unnecessarily chill legitimate activities that are at the heart of a democracy." Paraphrasing Justice Brandeis, Clinton continued, "[W]e must always tread carefully when considering measures that may limit public discussion." And the real kick in the head, considering the vicious times in which we live: "[I]t is my obligation to protect not only our Government's vital information from improper disclosure, but also to protect the rights of citizens to receive the information necessary for democracy to work."
And so, because of "one badly flawed provision," Clinton vetoed the whole thing and sent it back to the House. Oh, sure, it pissed off House Republicans, especially, including Porter Goss, who said, "To veto this critical piece of legislation now is disruptive, and may send a dangerous message to those who would harm U.S. interests." But Clinton believed that "in a society built on freedom of expression and the consent of the governed...this criminal provision would, in my view, create an undue chilling effect." The bill had been opposed by CNN, the Washington Post, and the New York Times, among others.
Flash forward to December 2001. The Congress, at the height of its post-9/11 obeisance to all things Bush, passed HR 2883, the Intelligence Authorization Act for Fiscal Year 2002. Section 305 of the bill was the "Modification of Reporting Requirements for Significant Anticipated Intelligence Activities and Significant Intelligence Failures." It was an amendment to the National Security Act of 1947, section 502, which is about the Executive branch reporting to Congress on "intelligence activities other than covert actions."
What was the big change made in 2001? To ask for the report in writing: any report "shall be in writing, and shall contain the following:(1) A concise statement of any facts pertinent to such report. (2) An explanation of the significance of the intelligence activity or intelligence failure covered by such report." That's it. Congress wanted its report in writing. And it wanted to understand what it was being told.
After the Act was passed and signed by the President, George W. Bush issued a signing statement about part of the bill: "Regrettably, one provision of the Act falls short of the standards of comity and flexibility that should govern the relationship between the executive and legislative branches on sensitive intelligence matters and, in some circumstances, would fall short of constitutional standards." Which part? According to Bush, "Section 305 of the Act amends section 502 of the National Security Act of 1947," which he says "purports to require" that reports to Congress "always be in written form, with a concise statement of facts pertinent to the report and an explanation of the significance of the activity or failure."
Bush does not explain why this act of writing the report and explaining things is so offensive, but he asserts that the section "shall be construed for all purposes... in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties." Which, you know, is pretty much everything. The same goes for the Director of Central Intelligence. Of course, the statement does not say how such an interpretation of the section will be applied, but one can guess it's something like: "Fuck 'em."
There's pretty much all you need to know about how far we've tumbled as a nation when it comes to respect for the Constitution, when it comes to the handling of secrecy, and when it comes to the rights of citizens to be informed. Clinton could have signed the bill and taken terrible retribution on anyone who leaked anything in his last two months. He chose not to. Instead, on December 27, 2000, he signed a bill that had the offensive section removed. Said Clinton in his signing statement, "I thank the Congress for working with me to produce a bill that I can sign."
Bush could have vetoed the whole bill so that we'd have a debate over what exactly he wanted. He chose not to. One way, Clinton's way, is the path to an open, real democracy. And the other, Bush's way? Why, that's a path to...well, we're not allowed to speak of such things without sounding crazy.
By the way, that December 2000 signing statement did contain some language about how President Clinton interpreted a section of the Act. "Title VIII of the Act sets forth requirements governing the declassification and disclosure of Japanese Imperial Army records, as defined by the Act," Clinton wrote. However, he made clear: "I understand that title VIII does not apply to records undergoing declassification pursuant to the Nazi War Crimes Disclosure Act." It ain't exactly ignoring a law so he can pursue whatever policies he wants, now, is it?