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[Going Native... imperialism anywhere = tyranny at home...]<br>
<h2>Senate Bill Would Make Leaks a Felony</h2>
<small>February 17th, 2011 by Steven Aftergood </small>
<p>Legislation introduced in the Senate this week would broadly
criminalize leaks of classified information. The bill (<a
href="http://www.fas.org/irp/congress/2011_cr/s355.html">S. 355</a>)
sponsored by <a
href="http://cardin.senate.gov/news/record.cfm?id=331219">Sen.
Benjamin Cardin</a> (D-MD) would make it a felony for a
government employee or contractor who has authorized access to
classified information to disclose such information to an
unauthorized person in violation of his or her nondisclosure
agreement.</p>
<p>Under <a
href="http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000798----000-.html">existing
law</a>, criminal penalties apply only to the unauthorized
disclosure of a handful of specified categories of classified
information (in non-espionage cases). These categories include
codes, cryptography, communications intelligence, identities of
covert agents, and nuclear weapons design information. <a
href="http://www.fas.org/irp/congress/2011_cr/s355.html">The new
bill</a> would amend the espionage statutes to extend such
penalties to the unauthorized disclosure of <span
style="text-decoration: underline;">any</span> classified
information.</p>
<p>(Another pending bill, known as <a
href="http://www.fas.org/irp/congress/2011_cr/s315.html">the
SHIELD Act</a>, would specifically criminalize disclosure — and
publication — of information concerning human intelligence
activities and source identities. Both bills were originally
introduced at the end of the last Congress, and were reintroduced
this month.)</p>
<p>“I am convinced that changes in technology and society, combined
with statutory and judicial changes to the law, have rendered some
aspects of our espionage laws less effective than they need to be
to protect the national security,” <a
href="http://www.fas.org/irp/congress/2011_cr/s355.html">said
Sen. Cardin</a>. “I also believe that we need to enhance our
ability to prosecute… those who make unauthorized disclosures of
classified information.”</p>
<p>“We don’t need an Official State Secrets Act, and we must be
careful not to chill protected First Amendment activities,” he
said. “We do, however, need to do a better job of preventing
unauthorized disclosures of classified information that can harm
the United States, and at the same time we need to ensure that
public debates continue to take place on important national
security and foreign policy issues.”</p>
<p><a href="http://www.fas.org/irp/congress/2011_cr/s355.html">The
bill</a> would replace the Espionage Act’s use of the term
“national defense information” with the broader but more precise
term “national security information.” It would outlaw any knowing
violation of an employee’s classified information nondisclosure
agreement, “irrespective of whether [the discloser] intended to
aid a foreign nation or harm the United States.” The bill would
not criminalize the receipt of leaked information, and it would
not apply to whistleblowers who disclose classified information
through authorized channels.</p>
<p>But it would establish a rebuttable presumption that any
information marked as classified is properly classified. (The
bill does not distinguish between “information” and “records.”)
This means that the government would not have to prove that the
leaked information was properly classified; the defendant would
have to prove it was not. In order to mount a defense arguing
“improper classification,” a defendant would have to present
“clear and convincing evidence” that the original classifier could
not have identified or described damage to national security
resulting from unauthorized disclosure. Such challenges to
original classification are almost never upheld, and so the
defendant’s burden of proof would be nearly impossible to meet.</p>
<p><a href="http://www.fas.org/irp/congress/2011_cr/s355.html">The
bill</a> does not provide for a “public interest” defense, i.e.
an argument that any damage to national security was outweighed by
a benefit to the nation. It does not address the issue of
overclassification, nor does it admit the possibility of “good”
leaks. Disclosing that the President authorized waterboarding of
detainees or that the government conducted unlawful domestic
surveillance would be considered legally equivalent to revealing
the identities of intelligence sources, the design of secret
military technologies or the details of ongoing military
operations.</p>
<p>And at a time when an unprecedented number of leak prosecutions
are underway, the bill’s premise that an enhanced ability to
prosecute leaks is needed seems questionable. In fact, in <a
href="http://www.fas.org/sgp/othergov/dojleaks.html">a 2002
report to Congress</a>, then-Attorney General John Ashcroft said
that the laws already on the books were sufficient and that no new
anti-leak legislation was required.</p>
<p>“Given the nature of unauthorized disclosures of classified
information that have occurred, however, I conclude that current
statutes provide a legal basis to prosecute those who engage in
unauthorized disclosures, if they can be identified…. Accordingly,
I am not recommending that the Executive Branch focus its
attention on pursuing new legislation at this time,” Mr. Ashcroft
<a href="http://www.fas.org/sgp/othergov/dojleaks.html">wrote</a>.</p>
<p>In 2000, Congress enacted legislation to criminalize all leaks of
classified information, but the measure was vetoed by President
Clinton.</p>
<p>“There is a serious risk that this legislation would tend to have
a chilling effect on those who engage in legitimate activities,”
President Clinton wrote in his <a
href="http://www.fas.org/sgp/news/2000/11/wh110400.html">November
4, 2000 veto message</a>. “A desire to avoid the risk that
their good faith choice of words — their exercise of judgment —
could become the subject of a criminal referral for prosecution
might discourage Government officials from engaging even in
appropriate public discussion, press briefings, or other
legitimate official activities. Similarly, the legislation may
unduly restrain the ability of former Government officials to
teach, write, or engage in any activity aimed at building public
understanding of complex issues.”</p>
<p>“Incurring such risks is unnecessary and inappropriate in a
society built on freedom of expression and the consent of the
governed and is particularly inadvisable in a context in which the
range of classified materials is so extensive. In such
circumstances, this criminal provision would, in my view, create
an undue chilling effect,” President Clinton <a
href="http://www.fas.org/sgp/news/2000/11/wh110400.html">wrote</a>.<br>
</p>
<p><a class="moz-txt-link-freetext" href="http://www.fas.org/blog/secrecy/2011/02/cardin_leaks.html">http://www.fas.org/blog/secrecy/2011/02/cardin_leaks.html</a><br>
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