Leaks will happen – but let's not overreact in plugging them

Congress and the president are again at odds over sharing information. This time it's about the war on terror, specifically about intelligence briefings the president got on Al Qaeda before Sept. 11. The president doesn't want to tell.

George Tenet, the president's director of central intelligence and the official primarily responsible for his daily briefing, has refused to admit even that the intelligence community provides information to the president. This would continue to be his position, Mr. Tenet says, even though the information provided is not itself any longer classified. Why does he think we have an intelligence community?

There is a built-in constitutional conflict between the president and Congress about matters affecting foreign policy. This is heightened by the natural instincts of presidents, especially George W. Bush, to be secretive. Mr. Bush even asserts the right to control which papers of his predecessors may be made public, regardless of what the predecessors themselves might have directed.

A basic presidential argument is that once disclosed to Congress, the information would not remain confidential. Disclosure would reveal – and endanger – the sources and methods by which the intelligence was gathered.

Everybody agrees that presidents have executive privilege; the argument is about what it covers. Presidents maintain that it covers just about whatever they say it does. The congressional argument is that it covers advice, not information, unless disclosure of the information would compromise the way it was obtained. If the secretary of defense tells the president, "We ought to invade Iraq," that's advice. If the director of central intelligence says, "Iraq has these weapons," that's information and is not privileged; but if it isn't generally known, and we don't want Iraq to know we have it, there may still be reasons to withhold it.

The major rap on Congress is that it can't keep secrets. But the whole government leaks – from the White House, State, Defense, and even the CIA and FBI – like a broken water main. Nonetheless, this does not justify leaks from Congress. Since the intelligence committees were established in the House and Senate 25 years ago, they have good records of keeping secrets. This argument isn't about telling the whole Congress, only a limited number of members.

The protection of sources and methods is important; but in case after case, when the facts are known, it turns out to be more an excuse than a justification. When a White House press secretary or a State or Defense Department spokesman, says, "If you knew what we know, you would agree with us; but we have to protect sources and methods," most journalists feel secure in betting the family farm that he is not protecting sources and methods; he is protecting his employer.

The next question is, why is it in the public interest for Congress to know these things anyway? The answer is that the US government operates, as Lincoln eloquently put it, by the consent of the governed, and it is crucial that this consent be informed. In the best of all worlds, everybody would be equally well informed. But even in a society as open as this one, some information important to governing has to be secret. In dealing with this information, the intelligence committees are the agents not only of Congress but of the public as a whole.

More than most presidents, George W. Bush needs to be held within the limits of constitutional checks and balances. The FBI is investigating the intelligence committees as possible sources of leaks of the testimony of Lt. Gen. Michael Hayden, director of the National Security Agency. General Hayden told the committees about two messages hinting at possible terrorist activity that were intercepted before Sept. 11 but not translated until Sept. 12.

Given the volume of messages the NSA handles, there may be good reasons this happened, but Congress has a legitimate need to know so that it can do something to see that it doesn't happen again.

This need to know does not justify leaking the information; but if the leak did in fact come from Congress, that is something for Congress, not the FBI, to deal with. When the FBI asks members of the Senate committee for their telephone logs, it is a gross violation of the separation of powers.

• Pat M. Holt is former chief of staff of the Senate Foreign Relations Committee.

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