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

[Rui Correia]

Ok, so what do we do with all the legislation on whistleblowing/ protection
of whistleblowers/ promoting whistleblowing on wrongdoing/ corruption abuse
of power, etc?

Rui

2011/2/17 Riaz K Tayob <riaz.tayob at gmail.com>

>  [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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Rui Correia
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Angola Liaison Consultant
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