Senate Proposal to Criminalize Leaks Sparks Opposition

A legislative proposal by Senator Jon Kyl (R-AZ) that would criminalize the unauthorized disclosure or publication of classified information “concerning efforts by the United States to identify, investigate, or prevent terrorist activity” is drawing strong opposition even before it has been formally introduced.

The Kyl proposal (pdf), which would amend the espionage statute at 18 U.S.C. 798, is to be offered as an amendment to an unrelated bill on data mining that will be marked up by the Senate Judiciary Committee on Thursday, March 1.

Classified information on U.S. counterterror efforts appears in the press with some frequency and often serves as a stimulus to intense public deliberation. Today, for example, the Washington Post reported new information on controversial and possibly illegal CIA “black sites” where an unknown number of prisoners are held incommunicado for interrogation.

Under the sweeping Kyl proposal, disclosure or publication of such information could be punishable by up to twenty years in prison.

“The proposal seeks to stifle, with the threat of criminal prosecution, informed public debate about the most serious matters of the effectiveness of government counterterrorism efforts,” wrote dozens of public interest, first amendment and civil liberties advocacy groups (including FAS) in a February 27 letter (pdf) to the Senate Judiciary Committee.

“We strongly urge you to reject the proposed amendment,” they wrote in a letter coordinated by the coalition OpenTheGovernment.org, directed by Patrice McDermott.

When a bill to criminalize the unauthorized disclosure of any classified information was introduced in 2000, it passed both houses of Congress before it encountered effective opposition (and it was subsequently vetoed by President Clinton).

In remarkable contrast, the present proposal by Senator Kyl has elicited organized opposition before it has even been formally introduced.

In addition to the OpenTheGovernment.org letter, a coalition of media organizations known as the Sunshine in Government Initiative, directed by Rick Blum, issued its own critique of the bill.

The Kyl proposal was previously reported by Rebecca Carr of Cox News and also by the Reporters Committee for Freedom of the Press.