Secrecy News

A Look Behind President Clinton’s Veto of an Anti-Leak Bill

In 2000, both houses of Congress passed legislation that would have made any leak of classified information a felony.

The provision, contained in the FY2001 intelligence authorization act, was designed “to ensure the prosecution of all unauthorized disclosures of classified information.” said Sen. Richard Shelby, the primary sponsor of the provision, at the time.

While some unauthorized disclosures of classified information were already prohibited by statute (including the Espionage Act), others have not been specifically outlawed, or else their legal status is uncertain, requiring strenuous efforts by prosecutors to fit a prohibition to the presumed offense. The Shelby provision would have removed all ambiguities and would have simply criminalized all leaks of classified information.

But to the astonishment of nearly everyone, and to the relief of many, President Clinton vetoed the 2001 intelligence authorization bill because of the anti-leak measure.

“Although well intentioned, that provision is overbroad and may unnecessarily chill legitimate activities that are at the heart of a democracy,” he wrote in his November 4, 2000 veto message.

But that unexpected outcome almost didn’t come to pass.

Instead of a veto, White House lawyers had prepared draft signing statements for President Clinton in which he would have approved the bill, while expressing some reservations about its potential impact.

The draft signing statements were released by the Clinton Presidential Library last week. The newly disclosed presidential documents were first noted by Josh Gerstein in Politico on July 18.

“I strongly believe… that this new provision should not be applied in a manner that could chill legitimate activity or transform questions of judgment into criminal referrals,” according to the draft signing statement for President Clinton that was ultimately set aside in favor of a veto of the bill.

The worst effects of the anti-leak measure could be avoided by the limited, judicious use of prosecutorial authority, White House lawyers initially suggested.

“It is extraordinarily important, therefore, that the Justice Department use its prosecutorial discretion wisely when apparently unauthorized disclosures are referred to it for possible prosecution under this new provision,” the draft signing statement said.

Prosecutorial discretion often seems to be in short supply, however, and in all likelihood it would not have been an effective bulwark against abuse of the vetoed anti-leak provision, had it passed into law.

An apparent excess of zeal in the prosecution of classified document (mis-)handling was highlighted just last week in the case of Navy contract linguist James F. Hitselberger, who had been charged with multiple felonies in connection with the unlawful retention of national defense information. Earlier this year, Mr. Hitselberger pleaded guilty to a single misdemeanor. Last Thursday, he was sentenced to time already served (in pre-trial custody) and a fine of $250.00.

3 thoughts on “A Look Behind President Clinton’s Veto of an Anti-Leak Bill

  1. Didn’t Sen. Shelby later leak to several reporters the news the US could listen in on and find OBL’s location every time he used his satellite phone?

    Didn’t Cheney use this “breach” as basis to force leaders of Congress and leaders of the intelligence committees to accept a “group of 8″ intel briefing scheme that rendered actionable congressional oversight of intelligence community a nullity?

    Didn’t Senate Intel Comm chair Graham later report that Cheney threatened him directly that Republicans would run in ’02 midterm election blaming Democrats for being soft-on-terrorists etc. unless Congress went along with the restricted intel briefings? Weren’t the attendees at those briefings compelled to sign security agreements (which have never become public) that allegedly had automatic and draconian terms?

    Didn’t NSA start monitoring the communications of the “bound” eight Senators and Members of Congress to protect national security, since there’d been this earlier leak about OBL’s satellite phone?

    Wasn’t Shelby fingered only years later to Senate Ethics Committee — but escape serious sanction — for having been the leaker in ’01 and then hiding himself right in the bosom of Senate Intel Comm as Cheney imposed the draconian, oversight-stripping terms and security agreement of the “group of 8″ scheme that made actionable congressional oversight of the intelligence community impossible?

  2. Until it was the CIA spying on her own committee, Senator Feinstein never encountered a fourth amendment violation she did not like, as well, she has described Snowden’s leaks as “treason” .. and a whaddaya know moment, Feinstein is one of DC’s biggest leakers:

    http://www.salon.com/2012/07/24/dianne_feinsteins_espionage/

    If you google: “sen feinstein, leak prosecutions” she’s really quite consistent, her own leaks notwithstanding, every leak is prosecution worthy (noting her mantra ‘this is not whistle-blowing’ which, apparently, is an ideal obtainable beyond the horizon or next time, in some other, indefinable circumstance…) In the ethics nomenclature, this is known as ‘moral inversion’ (apparently a communicable disease in DC)

Leave a Reply