Letter to the House on the Criminal Penalties for Disclosure of Classified Information

Re: Intelligence Authorization Act (H.R. 4392) and Criminal Penalties for Disclosure of Classified Information

Dear Representative:

We are writing to urge you to oppose the Intelligence Authorization Act for FY 2001, H.R. 4392 because the bill includes two provisions, taken from the Senate-passed version of the bill (S. 2507), that threaten civil liberties. The first would make virtually all willful, unauthorized disclosure of classified information a felony punishable by a substantial fine and up to three years in prison. The second would legalize "authorized intelligence activity" that is illegal under the terms of any legislation adopted in the future to implement a treaty, unless the implementing legislation indicates otherwise. In essence, it puts intelligence activity above the law. Because these sweeping provisions have been the subject of no hearings and virtually no public debate, and because adoption of these provisions would sanction lawless activity and have a profound negative effect on the ability of the press to expose governmental misdeeds, we urge you to oppose the Intelligence Authorization Act, and to support any effort to remove either of these provisions from the legislation. The bill is expected to be on the House floor tomorrow.

Disclosure of Embarassing Classified Information

This provision, taken from Section 303 of the Senate version of the bill (S.2507), would reverse 50 years of Congressional resistance - through the entire Cold War - to efforts by the Central Intelligence Agency to make it a crime for any person who has or had a security clearance to disclose classified information without authorization. This provision would close down debate about matters of crucial interest to the public that relate to national defense or to foreign policy. The crucial role of the press in exposing governmental misdeeds and the need for reform would be compromised. The implications for the First Amendment, and for the ability of news organizations to fulfill its promise, are profound.

Virtually every week, a major newspaper runs a story based in part on classified information. In recent months, these stories have, for example, informed the public and members of Congress of the continuation of an Iraqi missile program, about unease in China regarding the proposed deployment of a missile defense system in the U.S., and about the need to stem sales by Russia of deadly military technology to countries on the State Department's list of state sponsors of terrorism. Other stories have informed the public and members of Congress about the need for additional equipment on helicopters to protect the servicemen who fly them, and about links between drug traffickers and the Mexican military. Under this provision, every such story could trigger a criminal investigation. Indeed, the publication of the Pentagon Papers - so crucial to the public debate about the Vietnam War - involved a disclosure of classified information. In all likelihood, in the name of prosecutorial discretion, the Department of Justice would not prosecute all such leaks, just those that are the most embarrassing to the current administration.

Moreover, such prosecutions would put enormous pressure, including the threat of legal process such as a subpoena, on news organizations to reveal the source of the disclosure. As the American Society of Newspaper Editors and media outlets put it in their September 20 letter, "[T]his provision would result in news entities being forced to act as the government's own enforcement agents. ? The role of news entities such as newspapers and the electronic media, however, is to shed light on the activities of the government, not to be the government's enforcement agents."

Newspapers around the country have editorialized against the provision:

• The New York Times characterized it as "? an overly broad proposal that would deprive the public of information vital to national debates on serious issues. (October 5, 2000).
• The Washington Times said, "The purpose of this legislation is to shield the government from embarrassment, rather than protect vital state secrets." (October 10, 2000).
• The Los Angeles Times editorialized that, "The government notoriously overclassifies virtually everything to do with military and intelligence matters. It does so to protect legitimate secrets, but the process can also be used to shield mistakes, incompetence, political embarrassments and, in some cases, even criminal behavior. Exposing official gaffes and costly bumbling should not invite fines and imprisonment. (June 21, 2000).
• The San Francisco Chronicle called it, "an umbrella of secrecy for bureaucrats to cover their tracks and enable them to withhold information important for the public to know." (October 9, 2000).
• The Austin American-Statesman said, "The bill serves only to protect government incompetence and misconduct by threatening those who would expose it through the news media with a felony charge carrying a heavy fine an prison sentence." (June 19, 2000).

The disclosure of some classified information is a serious matter and it is already proscribed in current law. For example, it is a crime to disclose national defense information with reason to believe that such disclosure could cause injury to the United States (18 U.S.C. 793), to disclose classified cryptographic information (18 U.S.C. 798), or to disclose the identity of a covert agent (15 U.S.C. 421). Congress has consistently recognized that First Amendment concerns require that criminal sanctions accompany only disclosures of the most sensitive classified information that can do the most harm. Moreover, a person with a security clearance can lose their clearance, their job, and any prospect for employment in their chosen field if they disclose classified information.

However, this provision would make it a crime to disclose any classified information, regardless of whether the person who disclosed the information had any intent to harm the United States or help a foreign adversary. It uses a sledgehammer to address a problem that could be solved with a scalpel. Such a sweeping prohibition, with substantial criminal penalties, should not even be considered given the well-documented tendency to over-classify documents and to classify documents release of which would do nothing more than embarrass the government into adopting a necessary reform. Congress would do well to instead tighten up the classification system. This provision will do more to hide problems and misdeeds than to protect the national security.

Treaty "Obligations"

The second provision that compels us to urge you to oppose the Intelligence Authorization Act for FY 2001 (H.R. 4392) is taken from Section 305 of the Senate-passed version of the legislation (S. 2507). This provision would put the intelligence agencies above the law. Under this provision "authorized intelligence activity" that violates any law enacted in the future to implement a treaty or other international agreement would be legal, unless the implementing legislation indicated otherwise.

Legislation implementing international treaties prohibits some of the most heinous conduct imaginable. Treaties into which the United States has or will soon enter proscribe such heinous conduct as genocide, bribery, racial discrimination, hostage taking and hijacking. For example, the legislation implementing the Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Punishment establishes that it is the policy of the United States not to expel, extradite or effect the involuntary return of any person to a country in which there are substantial grounds for believing that the person would be in danger of being tortured. This policy applies regardless of whether the person who might be tortured is in the United States. Section 2242 of Pub. Law 105-277, 112 Stat. 2681-822 (1998). Had section 305 been law when Congress considered the legislation implementing the Convention Against Torture, it would be legal under the statute for a CIA agent acting pursuant to an "authorized intelligence activity" to return a person to a place where they would be tortured. This would be the case unless a member of Congress successfully slipped into the implementing legislation a provision indicating that it applied to intelligence activity as well.

This provision is opposed by a broad array of human rights groups, including the Lawyers Committee for Human Rights, the World Organization Against Torture, and the Federation of American Scientists.

The very limited Senate debate on this provision indicates that whether a particular intelligence activity that violates a law implementing a treaty is "authorized" is unclear. For example, it appears that the authorization need not be written and need not be issued specifically with respect to the conduct in question. Rather, as Senator Shelby put it, "Individual actions might be authorized through general written policies, rather than case-specific authorizations." See colloquy between Senators Biden and Shelby, 146 Cong. Rec. page S9686-7, October 3, 2000. This is an invitation for abuse of authority to evade a law by which every other government official must abide.

There can be no excuse for giving intelligence agencies a license to ignore the law, including laws that implement treaty obligations. To create such a blanket exception for "authorized intelligence activities" is to invite other countries that undertake treaty obligations to except these and other activities from the requirements of the treaty. This provision would ensure that there is no public debate as to whether there should be an "intelligence exception" to a future treaty obligation proscribing objectionable conduct.

For these reasons, we urge you to oppose this legislation, and to support any effort to strip either of these provisions from the bill.

Sincerely,

Laura W. Murphy
Director

Gregory T. Nojeim
Legislative Counsel