The Honorable Patrick Leahy
Chairman, Senate Judiciary Committee
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 assert Judiciary Committee jurisdiction over any proposal by the Senate Select Committee on Intelligence to create new criminal penalties for disclosure of classified information. Such a provision is plainly in the jurisdiction of the Judiciary Committee and poses severe First Amendment and other problems that deserve full review by members of your committee.
The provision would make it a federal felony, punishable by up to three years in prison, for any person with 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.
Despite these concerns, we understand that Senate supporters of an overbroad "leaks" provision have renewed their efforts to enact this misguided proposal, and will seek to include or attach the provision to the Senate version of this year's intelligence authorization bill. The Senate Intelligence Committee has announced it will hold hearings on the issue on September 5, 2001, and we understand that the Intelligence Committee may be urged to report an intelligence authorization bill, with a leaks provision, as early as the next day, September 6.
This truncated process cannot possibly do justice to the profound constitutional and policy questions that would arise from enacting such a provision. While the Intelligence Committee has held some closed hearings 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.
The proposed legislation is plainly within the jurisdiction of the Senate Judiciary Committee. It involves the creation of a new federal crime and raises profound First Amendment and other constitutional issues. Last year's intelligence authorization bill, with this provision attached, was passed without Senate Judiciary Committee consideration. Then, you joined Senators Grassley and Schumer in insisting on full consideration of the provision before it was to become effective, including hearings in the Senate Judiciary Committee. (See attachment). We urge you to insist on such careful consideration this year.
During consideration of the Intelligence Identities Protection Act of 1982, a statute Congress adopted to provide criminal penalties for a narrow class of unauthorized disclosures, the Senate Judiciary Committee did not defer to the Intelligence Committee, but held its own hearings and filed its own report on the bill. The Judiciary Committee recommended passage only after satisfying itself that the bill was narrowly tailored and would not squelch public debate in the arena of national security, other than in the circumstances, which it found compelling, of protecting the identities and lives of intelligence agents. See S. Rep. No. 97-201, 97th Cong., 1st Sess. (1981).
House Judiciary Chair James Sensenbrenner has made clear in an August 13, 2001 letter to Rep. Porter Goss, Chairman of the House Permanent Select Committee on Intelligence, that he would "seek immediate referral of any legislation that incorporates criminal provisions addressing the unauthorized disclosure of classified information," and expressed his "strong preference" that such provisions not be considered in an intelligence authorization bill.
It is critical that you make clear to Chairman Bob Graham and Majority Leader Tom Daschle that you will assert Judiciary Committee jurisdiction and seek a sequential referral of the bill if it contains any such leaks provision, and that you make sure that the Judiciary Committee gives such any proposal addressing the sensitive issue of leaks the careful and thoughtful attention it deserves.
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 to adopt, in effect, an "Official Secrets Act" that will severely curtail the press's power "to bare the secrets of government," the Judiciary Committee has an obligation to examine the issue thoroughly. It must not pass the buck to the Senate Intelligence Committee that has proposed a mere day of public hearings. The Senate Judiciary Committee should not inadvertently abandon its proper jurisdiction over a criminal statute with substantial First Amendment implications. Sincerely,
Laura W. Murphy
Director
Timothy H. Edgar
Legislative Counsel
attachment
cc: Members of the Senate Judiciary Committee
United States Senate
Washington, DC
October 27, 2000
The Honorable Ted Stevens
Chairman
Committee on Appropriations
United States Senate
Washington, D.C. 20510
The Honorable Robert C. Byrd
Ranking Member
Committee on Appropriations
United States Senate
Washington, D.C. 20510
Dear Chairman Stevens and Senator Byrd:
We are writing to request that the conferees approve an amendment on any remaining appropriations measure that would delay until January 1, 2002 the effective date of Section 304 in H.R. 4392, the Intelligence Authorization Act for Fiscal Year 2001, which was transmitted to the President on October 24, 2000. The amendment we propose is as follows: "Section 304 of the Intelligence Authorization Act for Fiscal Year 2001 (H.R. 3492) shall not be effective until January 1, 2002."
Section 304 creates a new federal felony crime, subject to fines and up to three years imprisonment, to make unauthorized disclosures of any information if there is "reason to believe it is properly classified." We appreciate that Chairman Shelby and Senator Bryan included this provision in the Intelligence Authorization Act after consultation with the Department of Justice and other federal agencies. We commend them for the work they have accomplished to protect our national security and enhance the effectiveness of our intelligence agencies.
Nevertheless, section 304 represents a fundamental change in criminal law that was made without any hearings or full consideration by the Senate Committee on the Judiciary. We are concerned that this provision may adversely affect First Amendment rights and whistleblower protections. Section 304 appears to be incompatible with the unanimously approved Whistleblower Protection Act, 5 U.S.C. 1211, and a Treasury, Postal appropriations rider known as the "anti-gag statute," which guards against non-disclosure rules that undermine free speech rights under whistleblower and other good government laws. The anti-gag provision has been included in each appropriations bill since 1988 and, most recently, as section 622 of the Treasury, Postal Appropriations bill for Fiscal Year 2001 (H.R. 4985).
Section 304 also removes the long-established requirement that to be properly classified, information must be clearly marked as such. This requirement has meant that no one has to guess whether information is classified. Instead, section 304 defines "classified information" to include information that the "person knows or has reason to believe has been properly classified by appropriate authorities." This expansive definition of "classified information," disclosure of which would be subject to criminal penalties, would effectively create a prior restraint by imposing a requirement for prior inquiry. Would- be whistleblowers who believe that certain information should be disclosed would be required to check with their superiors about the status of the information. Such a requirement would have a chilling effect on proper disclosures of waste, fraud and mismanagement.
Respected critics have warned that the scope of Section 304's prohibition, compounded by the felony criminal penalties it carries, create the equivalent of Britain's Official Secrets Act, a system of advance censorship that has long been rejected as incompatible with our public's right to know. In fact, the Supreme Court noted in the case involving the Pentagon Papers that the Congress had previously refused to pass legislation that would make it a crime for any person to willfully disclose without proper authorization, for any purpose whatsoever, information classified as "secret" or "top secret," knowing or having reasonable grounds to believe such information to have been so classified. The Court concluded that, "if the proposal . . . had been enacted, the publication of the documents involved here would certainly have been a crime. Congress refused, however, to make it a crime." New York Times Company v. United States, 403 U.S. 713, 747 (1971)(J. Marshall, concurring).
Finally, section 304 may adversely affect the administration of justice. The provision specifically exempts from criminal liability federal judges who disclose classified information, in accordance with applicable law. Yet, district court judges routinely are asked to make decisions, including in espionage cases or cases under the Freedom of Information Act, that certain information is not properly classified, and those decisions may be reviewed and overturned by appellate courts. This provision appears ambiguous, at best, on whether a district court judge who determines that information is not properly classified and discloses the information, would have criminal liability exposure if the appellate court decided differently.
A delay in the effective date of Section 304 would provide an opportunity for the Judiciary Committee to consider more fully the implications of this law and to have a richer and more public national debate. We hope you will agree to such a delay in the conference report presently before the Congress.
Thank you for your consideration of our views.
Sincerely,
PATRICK LEAHY
United States Senator
CHARLES GRASSLEY
United States Senator
CHARLES SCHUMER
United States Senator