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Dnevnik newspaper 15.10.2003
What does NATO expect?

Last year, the Bulgarian government adopted the Classified Information Protection Act, a law intended to protect government information in the name of national security. The reason for the new law was simple: NATO required it as a condition for joining the Alliance. In April 2002, Foreign Minister Solomon Pasi said that NATO officials had praised Bulgaria's law as the best
of all those adopted by NATO applicant countries.

Now Bulgaria has gone a step further. In September, Interior Minister Georgi Petkanov announced changes to the Penal Code that establish strict criminal penalties for the unauthorized disclosure of state secrets. The new penalties could apply to people outside government -- including journalists -- who repeat secrets leaked to them by government officials. Does NATO require this as well?

Some government statements might encourage this conclusion. In September, Minister Petkanov said that the proposed Penal Code changes were necessary to meet "European standards" before joining NATO and the European Union. More recently, it has been suggested that the changes are required to ensure that the Classified Information Protection Act, which was endorsed by NATO, is properly enforced. In May 2003, American Secretary of State also encouraged the Bulgarian government to strengthen controls over classified information.

Nevertheless, it is not clear that such changes are actually required by NATO.

Admittedly, it is difficult to determine exactly what NATO requires, because of the disgraceful secrecy that surrounds NATO itself. NATO's requirements are contained in a document called "Security within NATO." Every NATO country has a copy of this document, and is expected to obey its rules. The document itself is not sensitive. In fact, it is not even classified.

Even so, NATO has refused all requests to release this document to the public. It has also given instructions to each NATO government that they must never release the document, even if a request is made under a country's freedom of information law.

NATO says that its refusal to release this document is consistent with another NATO policy, which is called "Public Disclosure of NATO Documents." This policy is also unclassified. However, NATO has also instructed countries that this document should never be given to the public either. Last year, it was revealed that NATO has just completed a four-year revision of its rules on classified information. The American and Canadian governments have already refused to release any documents that would explain how they thought the rules should be changed. They say that this would harm international relations by revealing details about the rules, which NATO has already said must remain secret.

Franz Kafka would like this story. The NATO rules remains secret, even though NATO agrees that disclosure would cause no harm. The policy that explains the reason for secrecy is also secret. And leading NATO governments refuse to say whether they think all this secrecy is really necessary.

Fortunately, there are other ways to determine what the NATO rules actually require of countries like Bulgaria. One way is to look at the criminal law of important NATO countries such as the United States.

By coincidence, there is a currently a great controversy in the United States surrounding the unauthorized disclosure of classified information. A prominent American journalist, Robert Novak, recently published secret information about an undercover agent in the Central Intelligence Agency. Mr. Novak received the information from senior government officials who
wanted to discredit the agent's husband, a retired diplomat who has criticized the Iraq policy of the Bush administration.

Several newspapers reported that the senior government officials who leaked this information could be sent to prison for violating laws that prohibit the unauthorized disclosure of state secrets. In fact, this is inaccurate. The United States does not have an Official Secrets Act that creates general criminal penalties for unauthorized disclosure of classified information.
In October 2002, Attorney General John Ashcroft told Congress that no such law was needed.

The United States does have narrow laws that punish the disclosure of certain kinds of very sensitive classified information, such as information about CIA agents. However, these laws apply mainly to government officials. In the current controversy, no one has suggested that the journalist Robert Novak should be sent to prison for publishing information he received from
senior government officials. Under American law, there is no way that Mr. Novak could be sent to prison.

The United States is a powerful country, and perhaps it is in a position to ignore NATO rules about Penal Code provisions for unauthorized disclosure of classified information. A more likely explanation is that NATO has no specific rules.

At the moment, Americans are having a lively discussion about the laws that protect classified information. All Americans recognize the need to protect national security. But many Americans also recognize the need to ensure government accountability and promote informed public debate. For this reason the United States has resisted broad penalties for leaking classified information, and and in particular penalties for journalists or nongovernmental organizations that repeat sensitive information.

Citizens in all NATO countries are entitled to have the same debate, and make their own decisions on national policy. In addition, we should push NATO to disclose its policy on the handling of classified information. We are entitled to know what rules are being imposed on our governments.

Alasdair Roberts is Director of the Campbell Public Affairs Institute at the Maxwell School of Citizenship and Public Affairs, Syracuse University, United States. Professor Roberts is a specialist on government information policy. His website is http://www.aroberts.ca



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