The Honorable Bob Graham
Chairman, Senate Select Committee on Intelligence
United States Senate
Washington, DC 20510
Re: FY 2002 Intelligence Authorization Act and Criminal Penalties for Disclosure of Classified Information
Dear Mr. Chairman:
We are writing to urge you to oppose an effort to use the Intelligence Authorization Act for Fiscal Year 2002 as a vehicle to resurrect a proposal to create new criminal penalties for disclosure of classified information. Such a provision would chill First Amendment activity that furthers public debate.
The provision would make it a federal felony, punishable by up to three years in prison, for any person with authorized access to classified information knowingly to reveal any such information to an unauthorized person. This provision represents a major shift in current law. It would criminalize all so-called leaks regardless of whether the person disclosing the information intended to damage the United States and regardless of whether the disclosure actually harmed national security. Moreover, it would cover not just the most sensitive secrets, but all information the Executive Branch chooses to designate as classified. The proposal would have a severe chilling effect on public discussion of a wide range of foreign policy, national defense, and national security issues. Some leaks of classified information have uncovered serious government abuses, leading to more informed public debate and substantial reforms. Revelations concerning the Central Intelligence Agency's involvement in plots to assassinate foreign leaders, based in part on leaks, resulted in an executive order banning such practices. Inquiries into the Iran-Contra affair, prompted in part by leaks, resulted in significant reforms of the National Security Council.
The most famous leak - of the Pentagon Papers - uncovered government duplicity in the early years of the Vietnam War, resulting in a major shift in public opinion concerning that conflict. Just last week, a Washington Post story described portions of a classified report concluding that the government made serious mistakes in handling the Wen Ho Lee investigation, adding important details to public debate on the critical issue of reform of the Federal Bureau of Investigation.
The proposed legislation would make all of these disclosures a federal crime. Reporters who wrote such stories could be hauled before a grand jury and forced to reveal their confidential sources, or go to jail for contempt. The government, rather than investigate such leaks internally, could now use its full criminal investigative powers, including wiretaps, telephone intercepts, and searches of a reporter's office or home, to uncover the reporter's source. Because of such risks, the press will avoid these stories, depriving the public of critical information. Moreover, unlike current laws that address disclosures of agents' identities, cryptographic information, or certain national defense information, the statute would give the President virtually unlimited discretion to decide what disclosures would be made criminal, and to enforce those laws even against members of Congress. Such a system simply cedes too much power to the Executive Branch.
We understand that supporters of an overbroad leaks provision have renewed their efforts to enact this misguided proposal, and will seek to attach the provision to this year's authorization bill. The Committee has announced it will hold hearings on the issue on September 5, 2001, and we understand that the Committee may be urged to report an intelligence authorization bill, with a leaks provision, as early as the next day, September 6.
The truncated process for consideration of this matter cannot possibly do justice to the profound constitutional and policy questions that would arise from enacting such a provision. While some closed hearings have been held to examine the damage caused by leaks, there has been no public case made that legislation, even if it did not violate the First Amendment, would do anything to address any alleged or real problem caused by leaks. The Bush Administration is currently examining the problem, the penalties provided by current law, and possible alternatives to legislation. The Administration has not, to date, sought any new legislation and it is our understanding that the administration regards consideration of legislation in the context of the intelligence authorization bill to be premature. It is critical that you resist any effort to include the leaks provision in the authorization bill, and that you urge members of the Committee to vote against any amendment to add such a provision.
In the Pentagon Papers case, Supreme Court Justice Hugo Black wrote, "The press was protected so that it could bare the secrets of government and inform the people." New York Times Co. v. United States, 403 U.S. 713, 717 (1971) (Black, J., concurring). If Congress is, in effect, to adopt an "Official Secrets Act" that will severely curtail the press's power "to bare the secrets of government," it has a constitutional obligation to ensure that the issue is thoroughly examined. It must not act with unseemly haste following a single day of public hearings. The First Amendment deserves at least that much respect.
Sincerely,
Laura W. Murphy
Director
Timothy H. Edgar
Legislative Counsel
cc: Members of the Senate Select Committee on Intelligence