United States Senate The Honorable Ted Stevens
Washington, DCOctober 27, 2000
Chairman
Committee on Appropriations
United States Senate
Washington, D.C. 20510The Honorable Robert C. Byrd
Ranking Member
Committee on Appropriations
United States Senate
Washington, D.C. 20510Dear Chairman Stevens and Senator Byrd:
We are writing to request that the conferees approve an amendment on any remaining appropriations measure that would delay until January 1, 2002 the effective date of Section 304 in H.R. 4392, the Intelligence Authorization Act for Fiscal Year 2001, which was transmitted to the President on October 24, 2000. The amendment we propose is as follows: “Section 304 of the Intelligence Authorization Act for Fiscal Year 2001 (H.R. 3492) shall not be effective until January 1, 2002."
Section 304 creates a new federal felony crime, subject to fines and up to three years imprisonment, to make unauthorized disclosures of any information if there is “reason to believe it is properly classified." We appreciate that Chairman Shelby and Senator Bryan included this provision in the Intelligence Authorization Act after consultation with the Department of Justice and other federal agencies. We commend them for the work they have accomplished to protect our national security and enhance the effectiveness of our intelligence agencies.
Nevertheless, section 304 represents a fundamental change in criminal law that was made without any hearings or full consideration by the Senate Committee on the Judiciary. We are concerned that this provision may adversely affect First Amendment rights and whistleblower protections.
Section 304 appears to be incompatible with the unanimously approved Whistleblower Protection Act, 5 U.S.C. 1211, and a Treasury, Postal appropriations rider known as the "anti-gag statute," which guards against non-disclosure rules that undermine free speech rights under whistleblower and other good government laws. The anti-gag provision has been included in each appropriations bill since 1988 and, most recently, as section 622 of the Treasury, Postal Appropriations bill for Fiscal Year 2001 (H.R. 4985).
Section 304 also removes the long-established requirement that to be properly classified, information must be clearly marked as such. This requirement has meant that no one has to guess whether information is classified. Instead, section 304 defines “classified information" to include information that the “person knows or has reason to believe has been properly classified by appropriate authorities." This expansive definition of “classified information," disclosure of which would be subject to criminal penalties, would effectively create a prior restraint by imposing a requirement for prior inquiry. Would- be whistleblowers who believe that certain information should be disclosed would be required to check with their superiors about the status of the information. Such a requirement would have a chilling effect on proper disclosures of waste, fraud and mismanagement.
Respected critics have warned that the scope of Section 304's prohibition, compounded by the felony criminal penalties it carries, create the equivalent of Britain’s Official Secrets Act, a system of advance censorship that has long been rejected as incompatible with our public’s right to know. In fact, the Supreme Court noted in the case involving the Pentagon Papers that the Congress had previously refused to pass legislation that would make it a crime for any person to willfully disclose without proper authorization, for any purpose whatsoever, information classified as “secret" or “top secret," knowing or having reasonable grounds to believe such information to have been so classified. The Court concluded that, “if the proposal . . . had been enacted, the publication of the documents involved here would certainly have been a crime. Congress refused, however, to make it a crime." New York Times Company v. United States, 403 U.S. 713, 747 (1971)(J. Marshall, concurring).
Finally, section 304 may adversely affect the administration of justice. The provision specifically exempts from criminal liability federal judges who disclose classified information, in accordance with applicable law. Yet, district court judges routinely are asked to make decisions, including in espionage cases or cases under the Freedom of Information Act, that certain information is not properly classified, and those decisions may be reviewed and overturned by appellate courts. This provision appears ambiguous, at best, on whether a district court judge who determines that information is not properly classified and discloses the information, would have criminal liability exposure if the appellate court decided differently.
A delay in the effective date of Section 304 would provide an opportunity for the Judiciary Committee to consider more fully the implications of this law and to have a richer and more public national debate. We hope you will agree to such a delay in the conference report presently before the Congress.
Thank you for your consideration of our views.
Sincerely,
PATRICK LEAHY
United States SenatorCHARLES GRASSLEY
United States SenatorCHARLES SCHUMER
United States Senator