Anti-Leak Bill Alarms Media, Divides GOP

Constitution Dead and Buried

By Vernon Loeb

"This legislation contains a provision that will create--make no mistake about it, with not one day of hearings, without one moment of public debate, without one witness--an official secrets act," Rep. Robert L. Barr Jr. (R-Ga.), a former CIA official and U.S. attorney, said during House debate. "It has been broached many times. . . . But our regard for constitutional civil liberties . . . has in every case in which an effort has been made to enact an official secrets act beaten back those efforts."

Current espionage statutes criminalize the unauthorized disclosure of "national defense" information by those with intent to aid a foreign power or harm the United States. Other criminal laws prohibit the unauthorized release of certain categories of highly sensitive information, including the names of covert U.S. intelligence operatives and intelligence derived from communications intercepts.

But Congress previously had resisted attempts to broaden those criminal prohibitions to cover all classified information out of concern about First Amendment protections and what civil liberties groups and others describe as rampant over-classification by a government security apparatus that now classifies documents at the rate of 8 million a year.

What is particularly striking about the new anti-leak provision is that it has divided leading Republicans in the House, where it was championed by Rep. Porter J. Goss (R-Fla.), chairman of the Permanent Select Committee on Intelligence, and opposed by Rep. Henry J. Hyde (R-Ill.), chairman of the Judiciary Committee.

"Leaking classified government information is not a right or a privilege of U.S. officials or employees who have access to that information," Goss, a former CIA case officer, said in floor debate. "Too often over the past few years, we have significantly risked, and sometimes lost, fragile intelligence resources because those employed by the government . . . have chosen to leak that information."

Goss also noted that the anti-leak provision was written to conform with language suggested by Reno and Justice Department lawyers, who recommended that criminal sanctions apply to the unauthorized disclosure of "properly" classified information so that in any criminal case, the government would have to prove not only that the information was stamped classified but also that its release actually injured the nation.

Hyde and Rep. John Conyers Jr. (D-Mich.), the Judiciary Committee's ranking Democrat, did not buy the argument. In a letter they sent to Goss shortly before the fiscal 2001 Intelligence Authorization Act was considered in conference committee and passed by both houses, they argued that extending criminal sanctions to leaks of all "properly classified information" was a matter that required hearings by their committee.

"It has profound First Amendment implications, and goes to the very heart of the ability of the public to remain informed about matters of critical public interest, which often relate to governmental misdeeds," they wrote. "Moreover, since the Executive Branch asserts unilateral authority to define what information should be classified, this extension would grant the administration a blank check to criminalize any leaking they do not like."

As drafted, the anti-leak provision does not attempt to sanction reporters and others who publish or broadcast classified information, only those in the government who leak such information without authorization, Shelby and other proponents note.

"I can assure this body that in passing [the anti-leak provision], no member of the Select Committee on Intelligence intended that it be used as an excuse for investigating the press," Shelby said in Senate debate.

A memorandum by Shelby's staff says that the Justice Department "rarely seeks to interview or subpoena journalists when investigating leaks." The memo also states that there has never been a prosecution of a journalist under existing laws--even the statute covering unauthorized disclosure of the identities of intelligence operatives, which criminalizes the release, and the receipt, of such information.

But media organizations and civil liberties groups say all that could change with a new attorney general, particularly when a broad anti-leak provision is on the books. Prosecuting leakers, said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, will inevitably lead prosecutors to subpoena journalists to identify their sources, which journalists will inevitably refuse to do.

"I could therefore see more journalists going to jail for contempt of court than I see leakers going to jail for leaking the information to begin with," Dalglish said.

In a letter to Congress in July, the Reporters Committee and eight other media organizations, including the American Society of Newspaper Editors and the National Newspaper Association, said the anti-leak provision would lead not only to more media subpoenas but also to "the over-classification of information and a draconian interpretation of existing classification regulations."

Those groups and other opponents, however, have all but abandoned hope of a presidential veto and are pushing for hearings by the House Judiciary Committee on legislation to repeal the anti-leak provision early next year.

"Currently, if an individual discloses certain categories of important national security information, he can and should be prosecuted," Barr said in the floor debate. "This provision, though, would silence whistleblowers in a way that has never before come before this body and which has never before been enacted."

source: http://live.altavista.com/e?ei=2283744&ern=y

sent in by T of DC

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