Back in April 2004, Tony Blair and George Bush had a chat about the war in Iraq. In the course of it, Bush reportedly suggested bombing the Arab broadcasting station Al Jazeera, headquartered in Doha, Qatar. The White House has adamantly denied that such a proposal was ever made, calling the accusation “outlandish and inconceivable.”
But a British diplomatic communication about their conversation, marked “Secret-Personal,” evidently says otherwise—the subject may indeed have been broached, but possibly only in jest. Addressed to the British Foreign Secretary, the document began: “This letter is extremely sensitive. It must not be copied further and must be seen only by those with a need to know.”
We know about this document because a British cryptographer by the name of David Keogh, responsible for handling British diplomatic cable traffic, passed it on to an anti-war member of parliament who then disclosed its contents to the press. His objective, Keogh has frankly explained, was to intervene in America’s elections, helping John Kerry’s presidential bid by making George W. Bush appear to be a “madman.”
Such behavior is profoundly undemocratic. A civil servant in a technical position took upon himself a responsibility reserved for elected officials: namely, running British foreign policy.
Here in the United States such conduct would be called a “leak,” and the leaker would be celebrated in some quarters as a “whistleblower.” His actions would be lauded by the press, which would in turn circle the wagons to keep the whistleblower from being apprehended. Pulitzer prizes might even be won (as they were by the New York Times reporters James Risen and Eric Licthblau in the NSA terrorist surveillance case) for transmitting information from the leaker to the public about the hidden workings of government.
But T.S. Ellis, III, the federal judge who presided over the trial of the Pentagon official Lawrence Franklin for passing classified information to two employees of AIPAC, has a different view—and it is the correct one.
One can have all sorts of legitimate reservations about the Franklin and AIPAC prosecutions, and how they came about, and their highly selective nature—I have expressed my own doubts about them here and in the Los Angeles Times, and Dorothy Rabinowitz has persuasively done so in the Wall Street Journal. Nonetheless, in sentencing Franklin to more than twelve years in prison, Ellis had one very compelling point:
What this case is truly significant for is the rule of law. The law says what it says. The merits of the law really are committed to Congress. If it’s not sensible, it ought to be changed. But they’re—that’s the body that changes it. . . .
There is a law that says that if you have authorized possession of national defense information, you can’t disclose it to unauthorized people. . . .
It doesn’t matter that you think that you were really helping. That’s arrogating to yourself the decision of whether to adhere to a statute passed by Congress or not. And we can’t do that in this country. . . .
And it doesn’t matter who you disclosed it to. It doesn’t matter whether you disclose it to a newspaper. It doesn’t matter whether you disclose it to people who are fierce American patriots, or anything else. It doesn’t matter. It can’t be disclosed. That’s the rule of law.
The British courts agree. Calling David Keogh’s actions “reckless and irresponsible,” a judge on Wednesday sentenced him to six months in jail for breaching the Official Secrets Act.