[governance] Wikileaks Blowback - Senate Bill Would Make Leaks a Felony

[Riaz K Tayob]

[Going Native... imperialism anywhere = tyranny at home...]


    Senate Bill Would Make Leaks a Felony

February 17th, 2011 by Steven Aftergood

Legislation introduced in the Senate this week would broadly criminalize 
leaks of classified information.  The bill (S. 355 
<http://www.fas.org/irp/congress/2011_cr/s355.html>) sponsored by Sen. 
Benjamin Cardin <http://cardin.senate.gov/news/record.cfm?id=331219> 
(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.

Under existing law 
<http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000798----000-.html>, 
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. The new bill 
<http://www.fas.org/irp/congress/2011_cr/s355.html> would amend the 
espionage statutes to extend such penalties to the unauthorized 
disclosure of any classified information.

(Another pending bill, known as the SHIELD Act 
<http://www.fas.org/irp/congress/2011_cr/s315.html>, 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.)

"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," said Sen. Cardin 
<http://www.fas.org/irp/congress/2011_cr/s355.html>.  "I also believe 
that we need to enhance our ability to prosecute... those who make 
unauthorized disclosures of classified information."

"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."

The bill <http://www.fas.org/irp/congress/2011_cr/s355.html> 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.

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.

The bill <http://www.fas.org/irp/congress/2011_cr/s355.html> 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.

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 2002 report to Congress 
<http://www.fas.org/sgp/othergov/dojleaks.html>, then-Attorney General 
John Ashcroft said that the laws already on the books were sufficient 
and that no new anti-leak legislation was required.

"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 wrote 
<http://www.fas.org/sgp/othergov/dojleaks.html>.

In 2000, Congress enacted legislation to criminalize all leaks of 
classified information, but the measure was vetoed by President Clinton.

"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 November 4, 2000 veto message 
<http://www.fas.org/sgp/news/2000/11/wh110400.html>.  "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."

"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 wrote <http://www.fas.org/sgp/news/2000/11/wh110400.html>.

http://www.fas.org/blog/secrecy/2011/02/cardin_leaks.html

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