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The Washington Post
June 14, 2000

Senate Bill Aims To Curb News Leaks

Revealing Classified Data Would Be Felony

By Vernon Loeb
Washington Post Staff Writer

Alarmed by a torrent of leaks, the Senate Select Committee on Intelligence has endorsed legislation that for the first time explicitly would make disclosing classified information to the media a felony punishable by up to three years in prison.

Committee members, led by Chairman Richard C. Shelby (R-Ala.), say existing statutes do not cover all types of classified information and make prosecutions so difficult that leaks are endangering U.S. intelligence efforts.

CIA Director George J. Tenet, who has complained that the executive branch "leaks like a sieve," told Congress in July that he would love to catch a leaker because of the harm that widespread leaking "does to the effort of the men and women of our intelligence community and how it abuses the security of Americans."

The bill, however, has generated intense opposition from First Amendment groups, a former espionage prosecutor and Attorney General Janet Reno, all of whom argue that criminal prosecutions are not necessarily the best way to stop leaks.

Reno is expected to make that point today as she opposes the bill in its current form at a closed hearing of the Senate committee, according to an administration official. Tenet and FBI Director Louis J. Freeh are also scheduled to testify behind closed doors.

John L. Martin, who supervised the prosecutions of 76 accused spies and won convictions in all but one of those cases during a 26-year career with the Justice Department, said the bill is vague and probably unconstitutional. "Criminalizing leaks will not solve the problem, only exacerbate the situation," he said.

The Justice Department generally has chosen not to prosecute suspected leakers because it is difficult to prove that a particular person was the source of a leak and such cases often would require subpoenaing reporters and editors, leading to messy First Amendment issues, Martin said.

Usually, he said, Justice has urged the CIA, State Department, Pentagon and other agencies to punish suspected leakers administratively and to fire them when there is sufficient evidence.

The problem of leaks arises not from weaknesses in existing law, he said, but from a disinclination to enforce legal and administrative sanctions against senior officials, by far the most common violators.

"[T]he biggest leakers are White House aides, Cabinet secretaries, generals and admirals, and members of Congress," said Martin, who now runs the Washington office of OSO Group Ltd., an international investigative firm. "If this were enacted, enforced and upheld by the courts, you could relocate the capital from Washington to Lewisburg, Pa."--the site of a federal penitentiary.

Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy, said criminalizing leaks would be premature "as long as over-classification is rampant."

Shelby and other committee members say that to prosecute leakers under current law, prosecutors must show they committed espionage on behalf of a foreign power or divulged "national defense" information, a category that excludes much important data.

The committee's bill, Shelby said, states simply that any government official who "knowingly and willfully discloses . . . any classified information" to an unauthorized individual is guilty of a felony and may be fined up to $10,000 and imprisoned for up to three years.

The bill's definition of classified information is straightforward: "information or material . . . clearly marked . . . as requiring protection against unauthorized disclosure for reasons of national security."

Shelby said such language does not infringe upon the media's rights under the First Amendment because it does not make publishing classified information a crime.

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