Affront to the First Amendment
- By Patrice McDermott
- Dec 10, 2000
On Nov. 4, President Bill Clinton vetoed the Intelligence Authorization
Act for fiscal 2001. He did so because one of its sections would have created
an "official secrets act" for the first time in U.S. history.
Section 303, "Prohibition on Unauthorized Disclosure of Classified Information,"
would have made it a felony for any current or former government official
to disclose "properly classified" information — or even information that
the official believed might be classified somewhere within government — to any unauthorized person. Under existing law, government officials can
lose their security clearances and their jobs for disclosing classified
materials. Disclosures of information that pose a definitive threat to national
security are already prosecutable, but the burden of proof is on the government.
Section 303 would have made it difficult for government officials to
do their jobs. Former CIA Director James Woolsey, in the Wall Street Journal,
wrote that it would virtually preclude current and former officials from
expressing their views on any defense or foreign policy issue in which they
had access to classified information — including why the euro has fallen
Officials also could be prosecuted for improperly communicating information
based on public sources if they have "reason to believe [that] someone,
somewhere, sometime may have used a classification stamp on material covering
the same subject."
The provision also would have subjected potential whistle-blowers to
two risks. They could seek advance permission before exposing evidence of
bureaucratic misconduct in matters of alleged national security significance,
and thereby prematurely expose themselves; or they could risk criminal liability
for disclosing information that may be unmarked but classified somewhere
else in the government.
The press also might have been subject to government interference, as
Section 303 would permit law enforcement agencies to use wiretapping, grand
jury subpoenas, reviews of phone records and electronic surveillance against
journalists in an effort to identify their sources. Yet nothing in existing
law precludes these actions.
In his veto statement, Clinton said: "To the extent that existing sanctions
have proven insufficient to address and deter unauthorized disclosures,
they should be strengthened. What is in dispute is not the gravity of the
problem, but the best way to respond to it."
CIA officials provided the secret testimony that led to the government's
proposal. In public, intelligence agencies argued that only new legislation
could stem the flood of leaks.
But we cannot know how best to respond to a problem until we know its
nature and extent. This proposal is too serious an affront to the First
Amendment and to government accountability to just take the intelligence
There is no time during this lame-duck session of Congress for the serious
information gathering essential to any useful proposal, nor for the full
and open public hearings needed to create a complete record. There is certainly
no need for a quick fix; indeed, there may be no need for a fix at all.
McDermott is an information security analyst with OMB Watch, a government
watchdog group in Washington, D.C.