Fonseka Episode: Sri Lanka’s fight to protect national security information No second to the U.S.

The U.S. State Department seems to be in an attempt to project the arrest of former Sri Lanka army commander and defeated presidential candidate at the last January 26 election Sarath Fonseka as a political maneuver to demoralize the opposition, curb dissent, harass the media, undermine the rule of law and subvert democracy.

Bringing side issues into the forefront the State Department endeavors to negate the Sri Lanka government’s investigation to ascertain the truth about Mr. Fonseka’s attempted sedition, disclosure of classified information which amount to the compromise of national security and conspiracy to destabilize a legitimate democratically-elected regime.

The U.S. attempt is seen in two media notes, one from Washington and other from Colombo, to dilute the Sri Lanka government’s charges against Fonseka with other ‘rights issues’. The State Department in fact has indirectly incited the political opposition of President Mahinda Rajapaksa in highlighting the ‘side issues’ as ‘main issues’ that purportedly played toward the arrest of Mr. Fonseka.

The endeavor can be interpreted as a ‘Grand State Department Design’ to obstruct the investigation Sri Lanka is currently undertaken to ascertain the truth of what Fonseka has attempted to achieve in what the government has alleged despite there exist stringent laws in the United States to safeguard national security information and against sedition.

The United States on February 8 voiced concern about Sri Lanka's arrest of the defeated opposition presidential candidate, fearing it would worsen divisions as the island recovers from war.

"We are following the situation closely and we have concerns that any action be in accord with Sri Lankan law," State Department spokesman Philip Crowley told AFP.

"There is a tremendous need for the government of Sri Lanka to work to overcome the fissures that exist within its society," he said.

"It has to be very cautious that any actions it takes are designed to heal the split within Sri Lankan society, not to exacerbate it," he said.

"Whatever the government does has implications for how democratic institutions are perceived in the future," Crowley said.

"It's an unusual action to take right on the heels of an election," he said of the arrest.

The US Thursday February 11 denied Sri Lankan Defence Gotabaya Rajapaksa's allegation that they helped former army chief and defeated presidential candidate Sarath Fonseka during the polls.

'There is no truth to the defence secretary's claims that the US provided financial support to the opposition candidate in Sri Lanka's presidential election,' the US embassy in Colombo said in a statement.

'The US backed no candidate but strongly supported a free, fair, and credible democratic process,' it said.

Without stopping at that the U.S. Embassy brings forward issues that have no connection whatsoever to the defence secretary’s statement.

The US embassy statement also urged Colombo 'to protect the rights of those who supported the opposition or other candidates in the election and to ensure the safety and security of representatives of the press.

'The free expression of opinion and peaceful participation in the political process are fundamental democratic rights, which all citizens of Sri Lanka should enjoy,' it said.

Protection of National Security Information in US

Continued revelations involving alleged disclosures of classified information to the news media or to others who are not entitled to receive it have renewed the United States Congress’s interest with regard to the possible need for legislation to provide for criminal punishment for the “leaks” of classified information.

National defense information in the U.S. is protected by the Espionage Act, 18 U.S.C. § 793. The penalty for violation of 18 U.S.C. § 793 (gathering, transmitting, or losing
defense information) is a fine or imprisonment for not more than 10 years, or both.

Thus, under § 793, persons convicted of gathering defense information with the intent or reason to believe the information will be used against the United States or to the benefit of a foreign nation may be fined or sentenced to no more than 10 years imprisonment.

Persons who have access to defense information that they have reason to know could be used to harm the national security, whether the access is authorized or unauthorized, and who disclose that information to any person not entitled to receive it, or willfully retain the information despite an order to surrender it to an officer of the United States, are subject to the same penalty.

Any person who is lawfully entrusted with defense information and who permits it to be disclosed or lost, or who does not report such a loss or disclosure, is also subject to a penalty of up to 10 years in prison. The act covers information transmitted orally as well as information in tangible form.

18 U.S.C. § 794 (aiding foreign governments) provides for imprisonment for any term of years or life, or under certain circumstances, the death penalty. The provision penalizes anyone who transmits defense information to a foreign government (or certain other foreign entities) with the intent or reason to believe it will be used against the United States.

Members of the military who commit espionage, defined similarly to the conduct prohibited in 18 U.S.C. § 794, may be tried by court-martial for violating Article 106a of the Uniform Code of Military Justice (UCMJ), and sentenced to death if certain aggravating factors are found by unanimous determination of the (court martial) panel. Unlike offenses under § 794, Article 106a offenses need not have resulted in the death of a covert agent or involve military operations during war to incur the death penalty. One of the aggravating factors enabling the imposition of the death penalty under Article 106a is that “[t]he accused has been convicted of another offense involving espionage or treason for which either a sentence of death or imprisonment for life was authorized by statute.”

The law states:

“(a)(1) Any person subject to [the UCMJ, chapter 47 of title 10, U.S.C.] who, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any entity described in paragraph (2), either directly or indirectly, anything described in paragraph (3) shall be punished as a court-martial may direct, except that if the accused is found guilty of an offense that directly concerns (A) nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large scale attack, (B) war plans, (C) communications intelligence or cryptographic information, or (D) any other major weapons system or major element of defense strategy, the accused shall be punished by death or such other punishment as a court- martial may direct.”

The knowing and willful disclosure of certain classified information is punishable under 18 U.S.C. § 798 by fine and/or imprisonment for not more than 10 years. To incur a penalty, the disclosure must be prejudicial to the safety or interests of the United States or work to the benefit of any foreign government and to the detriment of the United States.

18 U.S.C. § 641 punishes the theft or conversion of government property or records for one’s own use or the use of another. Violators may be fined, imprisoned for not more than 10 years, or both.

18 U.S.C. § 1030(a)(1) punishes the willful retention, communication, or transmission, etc., of classified information retrieved by means of knowingly accessing a computer without (or in excess of) authorization, with reason to believe that such information “could be used to the injury of the United States, or to the advantage of any foreign nation.” The provision imposes a fine or imprisonment for not more than ten years, or both, in the case of a first offense or attempted violation.

18 U.S.C. § 1924 prohibits the unauthorized removal of classified material.32 The provision imposes a fine of up to $1,000 and a prison term up to one year for government officers or employees who knowingly take material classified pursuant to government regulations with the intent of retaining the materials at an unauthorized location.

42 U.S.C. § 2274 punishes the unauthorized communication by anyone of “Restricted Data,” or an attempt or conspiracy to communicate such data, by imposing a fine of not more than $500,000, a maximum life sentence in prison, or both, if done with the intent of injuring the United States or to secure an advantage to any foreign nation. An attempt to disclose or participate in a conspiracy to disclose restricted data with the belief that such data will be used to injure the United States or to secure an advantage to a foreign nation, is punishable by imprisonment for no more than 10 years, a fine of no more than $100,000, or both.36 The disclosure of “Restricted Data” by an employee or contractor, past or present, of the federal government to someone not authorized to receive it is punishable by a fine of not more than $12,500.

Concluding Remarks

Sri Lanka’s Defense Secretary Gotabhaya Rajapaksa in an interview to (Singapore) Straits Times this week briefly outlined the charges his government expects to level against the former army commander Sarath Fonseka in this manner:

(Quote)It was clear that while he was holding the Chief of Defense Staff assignment he was working with politicians and held discussions with them and tried to win them over. That was completely wrong because he was sitting in Security Council meetings. It amounts to treason. He knew everything that was going on. (Unquote)

The U.S. State Department needs to refrain from highlighting ‘rights and good governance issues’ to let the Government of Sri Lanka to continue with its investigation and gather evidences on Fonseka’s alleged offenses which are according to the government amounts to sedition and discloser of protected information connected to national security.

In doing so the U.S. is bringing divisions in Sri Lanka while inciting anti-government agitations which amounts to the interference of internal affairs of this South Asian nation. It needs to understand that as much as the United States is serious about protecting classified information that are connected to national security so is Sri Lanka concerned about leaks of decisions and discussions that took place in the National Security Council at a time the nation was at war with a ruthless terrorist organization.

As much as the U.S. does not entertain such interferences when it faces such issues of grave nature Sri Lanka has the right to describe the U.S. State Department ‘moves’ as interfering in to a the internal affairs of a sovereign state.

The United States has been seriously charged of interfering in the internal affairs of Sri Lanka since the war against the Tamil Tigers intensified, and it has been accused of supporting the candidature of Sarath Fonseka in the January 26 presidential election by none other than defense secretary Gotabhaya Rajapaksa who is the brother of Sri Lanka’s incumbent president.

In the light of this development it is in the interest of US-Sri Lanka relations that Mr. Blake’s State Department South Asia Bureau steers clear of entering in to domestic affairs other than instructing his Colombo diplomatic mission to do its independent surveys, research and analyses.

Mr. Robert Blake should not engage in ‘diplomatic adventurism’ disappointed with the derailing of the ‘political analyses and projections’ he received from the Political Division of the American Embassy in Colombo. To put the South Asian Affairs Bureau which he heads at the State Department in the correct path and proper perspective vis-à-vis Sri Lanka he needs to encourage his Colombo envoy Ms. Butenis to summon the services of Sri :Lankan nationals who possess grass root sense with wider outside contacts at all levels of the Sri Lankan society, especially in rural Sri Lanka which is 72%, who could come up with correct projections of the mood of the nation.

The Colombo diplomatic mission of the United States came up with accurate projections and the nation’s mood during the 1988 presidential elections when its political division had Foreign Service nationals who were sensitive to the mood of rural Sri Lanka which has a greater impact on the national agenda of this South Asian nation.

The allegations against Sarath Fonseka are serious as they sound, and the U.S. State Department and its Colombo envoy who has a reputation of meddling in the internal affairs of any country she is diplomatically settled need to allow the Government of Sri Lanka to get about with its own investigation.

These charges are taken very seriously in the United States and no U.S. administration will allow outside interferences on such occasions.

- Asian Tribune -