Letter to Attorney General Ashcroft on Penalties for Unauthorized Disclosures of Classified Information

Attorney General John Ashcroft
950 Pennsylvania Ave., NW
Washington, DC 20530

Re: Penalties for Unauthorized Disclosures of Classified Information

Dear Attorney General Ashcroft:

On behalf of the American Civil Liberties Union and its approximately 330,000 members, we write to commend your decision, contained in your report to Congress of October 22, 2002,[1] to refrain from seeking legislation that would impose additional criminal penalties on unauthorized disclosures of classified information.

A criminal leaks statute would expand existing law prohibiting some disclosures of particularly sensitive classified information with intent to harm the national security[2] to cover all disclosures of classified information even where the intent was benign. Such a statute would punish leakers indiscriminately, covering not only those government employees who leak for reasons of malice or personal gain, but also patriotic employees who seek to expose government wrongdoing or bureaucratic bungling that could pose a serious danger to our national security.

A criminal leaks statute would harm First Amendment values by exposing journalists engaged in routine newsgathering activities, particularly in the national defense and foreign policy fields, to possible criminal prosecution if they refused to name their confidential sources before a grand jury. Finally, it would greatly impede the ordinary process of disseminating information in official Washington, by chilling candid, “”off the record”” conversations between Administration officials and experienced foreign policy and defense reporters, depriving the public of vital information.

Your review mandates a number of new steps to combat leaking of classified information that are “”within the existing authorities of the Executive Branch and do not require additional legislation.”” Some of these steps could, if pursued overzealously, cause many of the same problems that a criminal leaks statute would create. The report advocates more aggressive efforts to identify leakers and to enforce existing criminal statutes, and also requires a new provision for “”liquidated damages”” to be inserted in national security nondisclosure agreements – in essence providing a fine for leakers that could be administered through civil enforcement under a breach of contract theory.

In specific cases, enforcement of such damages or other steps to combat leaks through the administrative process might run afoul of basic constitutional principles, as well as sound policy, or be used to punish politically embarrassing leaks, rather than leaks which genuinely harm national security. Congress and the courts, as well as the media, should be mindful of the danger that these administrative initiatives could be abused.

Nevertheless, the outcome of your review of leaks of classified information proves the value of a careful, deliberative approach. The problem of inappropriate leaking of national security secrets has received substantial public attention, particularly after President Bush deplored a number of alleged leaks by members of Congress of information from national security briefings giving shortly after September 11, 2001. The rush to legislate was a real temptation, and yet a more thorough and deliberative review of the reasons for the problem resulted in a different conclusion – that a new criminal leaks statute would not be an effective remedy for the problems caused by inappropriate leaks.

Taking the time to consider the problem of classified leaks more carefully has resulted abandoning this misguided proposal. Again, we commend you for refraining to endorse a new statute criminalizing leaks.

Sincerely,

Laura W. Murphy
Director, Washington National Office

Timothy Edgar
Legislative Counsel

cc: Members of the House and Senate Intelligence and Judiciary Committees

ENDNOTES

[1] This report on unauthorized disclosure of classified information was mandated by section 310 of the Intelligence Authorization Act for Fiscal Year 2002, Pub. L. No. 107-108 (2001).

[2] See 18 U.S.C. § 798 (codes, cryptographic or other intelligence communications systems); 15 U.S.C. § 421 (identities of covert agents); 42 U.S.C. § 2274 (restricted nuclear weapons systems data); 18 U.S.C. § 793 (information “”relating to the national defense”” if the leaker has “”reason to believe”” injury to the United States would result).