OMB Watch and others sign on to letter to White House urging the President to veto the Intelligence Authorization Act because it, for the first time in American history, creates an "official secrets" act. October 30, 2000 John Podesta Chief of Staff The White House Washington, D.C. 20500 Dear Mr. Podesta: We are writing to encourage the President to take the strongest possible action to prevent -- or at the very minimum delay - the implementation of Section 303 of H.R. 4392 "Prohibition on Unauthorized Disclosure of Classified Information." As you know,

• Current law already bans classified leaks, and national security threats can be prosecuted. There are sufficient protections in place that guard against the release of specific classified information that could impact an individual's safety, national security or national defense. [See 18 U.S.C. §793 (disclosure of information that would injure national defense); 18 U.S.C. §794 (disclosure of information to aid foreign governments to the detriment of the United States); 18 U.S.C. §798 (disclosure of cryptographic information or communication intelligence activity); 15 U.S.C. §421 (disclosure of information on covert agents)].
• Under the new law, a person could be held criminally liable for releasing "classified information" even if there are no markings or other warning. That revives a discredited concept from the 1980's known as "classifiable" information, which, according to the Administration official responsible for information security oversight at the time means "virtually anything," and could certainly mean any information related to "national security."
• It forces whistleblowers to seek advance permission before exposing evidence of bureaucratic misconduct in matters of alleged national security significance, or risk criminal liability. Identifying specific information that deserves special attention in the manner employed by existing law, which better balances the public's right to know with legitimate national security and defense concerns, represents better public policy than does the broad sweep of Section 303.

The bill creates multiple strikes against the public's right to know--a principle that this Administration has publicly supported--by:

1. discouraging anonymous dissent and disclosure of governmental misconduct because employees would risk criminal prosecution for disclosing information that may be unmarked, but classified;
2. requiring advance permission--that may expose an employee to career-ending retaliation--to exercise free speech rights regarding disclosure of information that is not marked classified; this requirement would also have the effect of
3. creating opportunities for wrongdoers to cover-up misconduct by destroying evidence or classifying information after the fact;
4. encouraging the over-classification of information and a draconian interpretation of existing classification regulations. By labeling information as classified or interpreting it as such, the governmental agency involved can obtain substantial leverage over even the best- motivated and most publicly-minded of its employees--even when information should be released; and
5. chilling and stifling customary and routine coverage of national security issues by the media by permitting--despite assurances from the bill's sponsors that this is not the intent of the bill--law enforcement agencies to use wiretapping, grand jury subpoenas and reviews of phone records against journalists and their sources who are suspected of "having reason to believe" they may be disclosing information classified somewhere in government.

If such a provision had been law, the public might never have seen or known about the Pentagon Papers, evidence exposing human rights abuse such as the My Lai massacre, false statements concealing leaks of radiation and other toxic substances on workers and into the environment, sloppy security creating vulnerability to terrorist attack at defense and national energy facilities, such as Rocky Flats Nuclear Storage Facility. 0pposition to this bill developing rapidly in Congress. We urge the President to veto the Intelligence Authorization Act or, at a minimum, ask Congress to move back by one year the effective date of this provision through an amendment to one of this year's spending bills. This would allow the House and Senate Judiciary Committees which normally review all changes in law to hold public hearings on the consequences. As Representatives Hyde and Conyers, and Senators Leahy, Grassley, and Schumer have written, this provision has profound First Amendment implications. Thank you. Sincerely, Patrice McDermott Sr. Information Policy Analyst OMB Watch Kent Pollock Executive Director California First Amendment Coalition Barbara Petersen Executive Director First Amendment Foundation Thomas Devine Legal Director Government Accountability Project Kenneth B. Allen Executive Vice President & CEO National Newspaper Association Emily Sheketoff Executive Director, Washington Office American Library Association Conrad Martin Executive Director Fund for Constitutional Government Scott Armstrong Executive Director Information Trust Bruce Craig, Ph.D Director National Coordinating Committee for the Preservation of History James X. Dempsey Senior Staff Counsel Center for Democracy and Technology Rich Oppel President American Society of Newspaper Editors Lucy Dalglish Executive Director Reporters Committee for Freedom of the Press David L. Sobel General Counsel Electronic Privacy Information Center Ray Marcano President Society of Professional Journalists John F. Sturm President & CEO Newspaper Association of America Mary Alice Baish Acting Washington Affairs Representative American Association of Law Libraries Thomas W. Newton General Counsel California Newspaper Publishers Association Kathleen Edwards Manager Freedom of Information Center Bill McCloskey President D.C. Professional Chapter Society of Professional Journalists Steven Aftergood Senior Research Analyst Federation of American Scientists James R. Cregan Executive Vice-President Magazine Publishers of America Forrest M. Landon Executive Director Virginia Coalition for Open Government Patricia Roshaven* Campus Librarian John D. MacArthur Campus Library Florida Atlantic University Frederick G. Muckerman* Editor COMPLIANCE PUBLISHERS Herb Strentz and Kathleen Richardson Iowa Freedom of Information Council Jim Warren* Contributing Editor & Technology Public-Policy columnist MicroTimes Magazine Ronald J. Riley* Advisory Board President Alliance for American Innovation, Inc. Richard P. Kleeman Consultant, Retired Michael R. Meuser Clary Meuser Research Network Phillip M. Runkel* Assistant Archivist Department of Special Collections and Univ. Archives Marquette University Jane E. Kirtley* Silha Professor of Media Ethics and Law Director, Silha Center for the Study of Media Ethics and Law School of Journalism and Mass Communication University of Minnesota David A. Wallace* Assistant Professor School of Information University of Michigan Mark C. Rosenzweig* Councilor at Large, American Library Association Co-Director, Progressive Librarians Guild *Institutional affiliation provided for identification only.