Affront to the First Amendment

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

in value.

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

agency's word.

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.


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