Official Secrets Act [ OSA Homepage | The Issues | 2001 Attack | Congressional Letter | 2000 Attack | Links ] The Most Important Issues The following was prepared by Kate Martin, Center for National Security Studies.

Summary: The Chair and the Vice-Chair of the Senate Intelligence Committee have announced their intention to include a provision in the Intelligence Authorization bill, which would make criminal public disclosures of all classified information. While the CIA has complained in closed hearings about recent leaks, the administration has not asked for legislation, or even said that new legislation is necessary. Nevertheless, the Senate Intelligence Committee has scheduled a hearing on September 5 and announced its intention to include the provision in the mark-up of the Intelligence Authorization bill now scheduled for September 6. The legislation would make it a crime to disclose anything a government bureaucrat stamps classified, an inherently discretionary judgment, regularly applied to information crucial to the free discussion of governmental affairs that is at the core of the First Amendment. It would be a sea change in existing law. Throughout the Cold War, Congress made it criminal to leak only very narrow and specific categories of information, whose value to open political debate was minimal and where the harm from disclosure was direct and overwhelming. Disclosures of the most sensitive intelligence sources and methods, the identities of agents or interception capabilities aimed at Bin Laden for example, are already a crime. Congress should not abdicate its responsibility to determine whether there are any narrow categories of additional disclosures, which are of so little use to policy debates and so harmful to overriding interests, that they can be criminalized consistent with the Constitution. Its present plans for lightning consideration of this proposal are inconsistent with that responsibility.
• 1. Congress has a constitutional obligation to act carefully and deliberately when considering legislation aimed at core First Amendment speech. Congress has a constitutional obligation to act carefully and deliberately before enacting criminal laws infringing on First Amendment rights. The Supreme Court has instructed that legislation going to core First Amendment freedoms especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for enacting and implementing our laws. Greene v. McElroy, 360 U.S. 474 (1959). Congress has an obligation to ensure there is an open and democratic legislative process in which the interests of the American public and the Constitution can be fully aired and considered when core constitutional liberties are at stake. This constitutional obligation cannot be met by one afternoon of hearings or by considering potential legislation in a closed proceeding. The Congress should ask the administration for its views on what authorities it presently has, whether it believes any further legislation is warranted, and if so why, and for an analysis of the constitutionality of such legislation. If the administration seeks such legislation, the Congress should then schedule hearings in the committees with jurisdiction to hear from the wide range of organizations and individuals interested in the issue and to examine closely the constitutional ramifications of any proposal. Congress should proceed as carefully and deliberately as it did when it enacted the Intelligence Identities Act in 1982, when it held multiple days of hearings over many months and carefully refined the ultimate language in the statute.
• 2. Enacting a criminal leaks provision would be a sea change in existing law. The assertion by the bill's proponenets that the bill is needed to close a "narrow gap" in existing law is simply wrong. While some disclosures of classified information to the press and public are now a crime, the vast majority are subject only to administrative discipline, loss of security clearance and a job. In this connection, it is important to note that neither the Justice Department nor the Intelligence Committee have ever provided any public analysis of their view of existing law or a description of the "narrow gap," which this legislation was allegedly intended to fill. Current law criminalizes only narrow and very specifically identified categories of national security information. It is now a crime to leak the names of covert intelligence agents, communications intelligence, communications intelligence capabilities, and some kinds of Restricted Data relating to nuclear weapons. While the Justice Department successfully prosecuted one individual for leaking information "related to the national defense" under a section of the espionage laws, applying the espionage laws to leaks is highly problematic and quite likely unconstitutional. The espionage provisions used by the Justice Department in that prosecution (for leaking satellite imagery) were never intended by Congress to constitute a general leak statute covering information related to the "national defense" - an extremely broad category. Even the one court that sanctioned the prosecution recognized that there are serious First Amendment problems in applying the espionage statute to leaks. Whatever the Justice Department's current legal analysis of the applicability of the espionage statutes to leaks, it is clear from its practice for the past 50 years that the Department has no confidence that Congress has in fact already legislated any general leaks statute applicable to national defense information. Any new provision criminalizing leaks of "classified information" would be an extraordinary extension of existing law.
• 3. No one has identified either a problem or a need that the proposed bill would fix. No government official, beginning with the Director of Central Intelligence has made a public case about the need for a new leaks law. The administration has not sought such legislation, or explained its necessity. While government officials have complained about leaks jeopardizing intelligence sources, they have made no showing how the proposed bill would have addressed that problem. Indeed, they acknowledge that the real problem is their inability to identify the leakers. This is a problem that will in no way be fixed by a new leak statute, unless the Justice Department intends to start subpoenaing journalists to identify their sources. Moreover, many of the recent much-discussed leaks contain details about communications intercepts, which information is already covered by existing criminal law prohibiting leaks of communications intelligence. In addition, it is already a crime for government officials to publicly disclose the names of covert intelligence agents.
• 4. The public's right to be informed about critical national defense and foreign policy matters is at the core of our democracy and thus leaks of even properly classified information may not be made a crime. Criminalizing leaks of even properly classified information limits the effectiveness of a free press in monitoring national security agencies and thereby prevents public debate and democratic decision-making. Because the unavoidably secretive national security community functions without many of the public checks that control other parts of government, media exposure has come to play a unique compensating role in holding the national security agencies accountable. The media's role as watchdog however, depends on the willingness of government officials to disclose information about illegality, misconduct, or simply bad policy, to the press. Criminalizing leaks of even properly classified information will unconstitutionally chill such disclosures and fundamentally distort the balance of power between the government and the people on crucial questions of national defense and foreign policy. Thus, any bill, which criminalizes leaks of all classified information, would be unconstitutionally overbroad. Nor would limiting its scope to properly classified information in any way cure this defect. As the Executive Order governing classification recognizes, there are many instances when even properly classified information, whose disclosure "could reasonably be expected to cause harm to the national security" should be made public because the public interest in knowing the information outweighs the national security harm. Congress itself has recognized that even properly classified information may appropriately be made public when it provided procedures for the Congress to release such information, even over the objection of the President. See Senate Res. 400 sec 8(a). Thus, limiting the scope of a bill to "properly classified" information, however that term is defined, will not cure its constitutional defects.
• 5. Limiting the provision to cover only intelligence sources and methods or "Sensitive Compartmented Information" would not cure the constitutional defects. There have been reports that the bill's proponents may seek to limit it to leaks of intelligence information, described as either "sources or methods" or "Sensitive Compartmented Information (SCI)". Doing so, however, would not cure the constitutional defects. To the contrary, the provision would remain extraordinarily overbroad. For decades, the intelligence community, especially the CIA, has asserted that virtually all intelligence community information is derived from or concerns intelligence sources and methods. Recently leaked information, which the CIA describes as sources and methods information includes the amount of the intelligence community budget, the NRO's misuse of appropriated funds, the CIA's 40-year-old history of its involvement in the 1953 coup in Iran, and CIA misconduct in failing to inform Congress regarding human rights abuses, as documented by the President's Intelligence Oversight Board. Nor would limiting the bill to Sensitive Compartmented Information (SCI) cure the constitutional problem. The Executive Branch s current working definition of SCI appears to be secret, and the Director of Central Intelligence, not the Congress designates information as SCI. Thus, a provision criminalizing leaks of SCI information would not only be unconstitutionally overbroad it would also be unconstitutionally vague, and an unconstitutional delegation by the Congress to the Director of Central Intelligence to determine what is criminal activity. For all of these constitutional reasons, Congress explicitly refused to criminalize leaks of intelligence information, when it determined in 1982 that criminal sanctions were merited only for leaks of the names of covert intelligence agents and enacted the Intelligence Identities Protection Act.
• 6. Any bill criminalizing leaks of national security information would allow the government to force journalists to identify their sources or face jail. Any general law criminalizing leaks of national security information would authorize grand jury subpoenas and search warrants targeted to journalists to uncover their sources for leaked classified information. Such efforts would constitute one of the most serious assaults on news-gathering and public debate in our history. While current Justice Department guidelines limit investigations targeted to newsgathering by reporters, those guidelines already contain exceptions that allow journalists to be targeted where they are the sole witness to a crime. Enactment of a new leaks statute would mean allowing the FBI to search, subpoena or even wiretap journalists to identify their sources for classified information. While such investigations are now quite rare, there is every reason to fear that they would become the norm in a government effort to control what the public learns about its activities and intentions. For further information, please call Kate Martin at 202-994-7060.