September 30, 2003
Ashcroft's Efforts to Prosecute Americans for Leaking Non-Classified Information: It's Okay to Commit Treason in the White House, Though. A BuzzFlash Interview with John Dean.
A BUZZFLASH INTERVIEW
Our last BuzzFlash interview with John Dean, a former Counsel to the President of the United States, was entitled "The Man Who Told Richard Nixon That There Was a Cancer on His Presidency; John Dean Talks to BuzzFlash.com About George W. Bush, Watergate, Evidence of Misconduct and Possible Impeachment (If There Were Justice)" [LINK]
The interview was based on a commentary that Dean wrote about whether or not Bush's use of lies to lead America into war is an impeachable offense. [LINK]
Today, we are interviewing Dean --a noted author, political and legal analyst, and FindLaw columnist -- on the efforts of John Ashcroft to create a de facto policy of prosecuting Americans for disclosing government information, even if it is not classified. It is another example of Ashcroft, on behalf of Bush and Cheney, seeking to turn America into a Soviet style state, where an elite group of rulers control all the information that belongs to the American people.
Dean's column comes at an ironically timely moment. Right now, the White House is furiously trying to spin its way out of a traitorous act of betrayal, exposing a CIA operative who specialized in tracking legal and illegal trafficking in weapons of mass destruction. Ashcroft is no doubt spending time with his staff trying to find inventive ways to AVOID holding anyone at the White House accountable. At the same time the Department of Justice is probably conspiring to let an act of treason go unprosecuted at the White House, it is also, according to Dean, trying to figure out ways for sending American to jail for disclosing or transferring information that belongs to the American people, not the Bush Cartel.
Before you start this BuzzFlash interview with John Dean, we recommend you first read: [LINK].
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BUZZFLASH: The U.S. does not have an official secrets act. Can you explain what this means?
JOHN DEAN: In the United Kingdom, and several other countries that do not have the equivalent to our First Amendment, which guarantees freedom of the press and freedom of speech, governments make it a crime to disclose government information. The most notorious of these laws is Britain's Official Secrets Act of 1911 which makes it a crime to disclose both classified and unclassified government information. The fact that the disclosure causes no harm is not considered a defense, and the law applies to both public servants and journalist.
The United States has never adopted such a sweeping law, notwithstanding periodic efforts by those concerned with government secrecy to do so. Congress has, however, adopted laws relating to espionage (providing information to our enemies) and a comprehensive body of laws relating to atomic and nuclear secrets. Those governments that have official secrets acts create a culture of secrecy -- with is the antithesis of the democracy our founders envisioned based on an informed public that holds its elected officials accountable.
BUZZFLASH: You argue in a September 26th FindLaw commentary that John Ashcroft and the Bush administration are trying to implement an "Unofficial Official Secrets Act" by cobbling together existing statutes and pushing them to the edge of the envelope. Can you explain how they could do this?
DEAN: They are doing this by using laws that were never intended for this purpose, but were written so broad that they cover leaks, or actions relating to leaking. While this practice did not start with Ashcroft and the Bush administration (rather Nixon and Reagan), this administration appears to be pushing the envelope. Bush and Cheney run a highly secretive White House, which has set the tone.
The argument I make is that Ashcroft's Justice Department is taking statutes that were never intended to address leaks, or unauthorized disclosures, and cobbling together their own official secrets act. The most glaring example is a prosecution of a DEA intelligence analyst in Atlanta, Jonathan Randal, who leaked unclassified information to a British journalist. To make an example of Randal, they threw the book at him, a twenty count indictment with a statutory maximum sentence over 500 years. It was absurd. Had the case not have arisen before Ashcroft issued his new order that prohibits plea bargaining, Randal would have faced life in jail for doing something that is done every day in Washington: leaking information.
BUZZFLASH: In essence then, with an official secrets act -- or the stitching together of a de facto act by Ashcroft, the United States government could declare that the leaking of any government information, regardless of how benign, could, in theory, be prosecutable. Wouldn't this, in essence, prevent whistleblowers from coming forward to reveal abuses by the government because they could potentially face prosecution?
DEAN: The message that Ashcroft is sending is that they will prosecute whistleblowers. There are, however, a number of whistleblower laws to protect such people. So this is a difficult question to answer in the abstract, and it will depend of the facts. In the Randal case, Randal said he leaked the information because he felt DEA was giving one of the richest men in the United Kingdom, who operated out of the off shore tax haven of Belize, a pass. Randal's lawyer, an experienced criminal defense attorney in Atlanta, Steve Sadow, says that Randal took no money for the information, per se, but he was later reimbursed for time and travel when he went to London, after the information resulted in a lawsuit. Bush's U.S. Attorney in Atlanta, who has cast this case as a sale of government information rather than whistleblowing, made it very clear that they were making Randal an example. So clearly this administration is trying to discourage whistleblowing, or anything close to it.
BUZZFLASH: Clinton vetoed a bill that would have enacted an official secrets act in the United States. Isn't it a bit scary that such a bill actually passed both houses of Congress? How did that happen?
DEAN: We came very close to having an official secrets act, and but for the effort of Scott Armstrong, a former investigative journalist with The Washington Post, who now heads the Information Trust, it would have happened. Armstrong mounted a last minute lobbying effort to get Clinton to veto the bill, which was slipped into an appropriations bill without hearings, so it was below the radar. No one seemed to be paying attention, and Armstrong learned of it because PBS asked him to debate it with Senator Shelby, who sponsored the bill in the Senate.
BUZZFLASH: Of course, this begs the question of whether or not the real purpose of prosecuting people for leaking information that is not classified or related to national security is simply to protect the current administration from having the public obtain the truth. Any comments on this thought?
There is no doubt in my mind that Randal was prosecuted because this is an administration that wants to send a message -- if you leak, we will send you to jail. At least that is the message they are sending to rank and file government workers.
BUZZFLASH: Recently, a study showed that the so-called "Patriot Act" is being used against common criminals, in what one could call "legal creep" (analogous to "mission creep"). Is the Bush administration trying to use "legal creep" to move from prosecuting individuals who violate our national security to prosecuting individuals who are engaged in innocent dissemination of information or dissent?
DEAN: That's a nice term, and there is "legal creep" taking place. This is one of the most aggressive Justice Departments in our history, in prosecuting crimes they feel important. For example, Ashcroft is not only prohibiting U.S. Attorneys from plea bargaining -- which has been standard practice for decades -- but he wants the maximum number of crimes included in indictments. The Federal Criminal Code has so many overlapping laws, that if they enforce such a policy, literally, misdemeanors are going to become felonies, and felonies are going to be stacked one on top of another. That is not effective law enforcement, rather it is draconian law enforcement. Ultimately, such a policy will not only clog the courts, it will mean the Federal Government will have to build a lot more prisons. Ashcroft reminds me of my former colleagues at the Nixon White House, and Justice Department, who were all "law and order" until they found themselves on the wrong side of the law. I don't think John Ashcroft would want to be subject to his own policies.
BUZZFLASH: Do you find it ironic that an administration that portrays itself as so concerned about leaking information has done nothing to internally investigate whether two senior administration officials outed a CIA operative, to her personal detriment and the security of the United States? A Washington Post article this week indicated that Bush was not going to even ask his staff whether someone did out a CIA operative? Do you think that there is a double standard at work, considering that Ashcroft now is trying to edge toward prosecuting people for leaking information that is of no harm to the United States, but may only be of political harm to the administration?
DEAN: It was president John Kennedy who said the ship of state is unique in that it most often leaks from the top. There is great hypocrisy in this administration's policy on leaks. If the leaks are made by high level officials, and favorable to the administration, no problem. Nothing happens. When Congress leaked information, Bush sent the FBI.
In a column I wrote about the administration leaking the name of Ambassador Wilson's wife [LINK] -- who apparently is a CIA operative -- because they did not like Wilson's report that showed the president had used bogus information in his State of the Union address -- it is one of the dirtiest tricks I have seen. Not only is it against the law to reveal such information, it may have been life threatening. The fact that Bush did not demand the head of whoever leaked that information, the fact he made no public statement deploring such a leak, not only shows a double standard, but it has the smell of cover up. The case has been officially referred to the Department of Justice. If the CIA's lawyers (who know both the facts and the law) did not believe there was a violation of the law, they would never have sent it to Justice Department. If the Department of Justice does not flush out the leaker, or leakers, and file appropriate criminal charges, just call it Wilsongate.
A BUZZFLASH INTERVIEW
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About John Dean:
Before becoming Counsel to the President of the United States in July 1970 at age thirty-one, John Dean was Chief Minority Counsel to the Judiciary Committee of the United States House of Representatives, the Associate Director of a law reform commission, and Associate Deputy Attorney General of the United States. He served as Richard Nixon's White House lawyer for a thousand days.
He did his undergraduate studies at Colgate University and the College of Wooster, with majors in English Literature and Political Science. He received a graduate fellowship from American University to study government and the presidency, before entering Georgetown University Law Center, where he received his JD in 1965.
John has written many articles and essays on law, government and politics. He has recounted his days in the Nixon White House and Watergate in two books, Blind Ambition (1976) and Lost Honor (1982). He is often called upon by newspapers, national magazines, and television news for information and comments relating to Watergate, presidential politics, and White House activities.
John lives in Beverly Hills, California with his wife Maureen. He works as writer, lecturer and private investment banker. He recently published "The Rehnquist Choice: The Untold Story of the Nixon Appointment that Redefined the Supreme Court". Also see John Dean's e-book "Unmasking Deep Throat".
otherwise noted, all original