Senate Bill Would Make Leaks a Felony

Legislation introduced in the Senate this week would broadly criminalize leaks of classified information.  The bill (S. 355) sponsored by Sen. Benjamin Cardin (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, 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 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, 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.  “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 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 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, 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.

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.  “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.