ARCHIVED: Opposition to Section 303 of H.R. 4392, "Prohibition on Unauthorized Disclosure of Classified Information"

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October 30, 2000

John Podesta
Chief of Staff
The White House
Washington, D.C. 20500

Dear Mr. Podesta:

We are writing to encourage the President to take the strongest possible action to prevent -- or at the very minimum delay - the implementation of Section 303 of H.R. 4392 "Prohibition on Unauthorized Disclosure of Classified Information." As you know,

  • Current law already bans classified leaks, and national security threats can be prosecuted. There are sufficient protections in place that guard against the release of specific classified information that could impact an individual's safety, national security or national defense. [See 18 U.S.C. 793 (disclosure of information that would injure national defense); 18 U.S.C. 794 (disclosure of information to aid foreign governments to the detriment of the United States); 18 U.S.C. 798 (disclosure of cryptographic information or communication intelligence activity); 15 U.S.C. 421 (disclosure of information on covert agents)].
  • Under the new law, a person could be held criminally liable for releasing "classified information" even if there are no markings or other warning. That revives a discredited concept from the 1980's known as "classifiable" information, which, according to the Administration official responsible for information security oversight at the time means "virtually anything," and could certainly mean any information related to "national security."
  • It forces whistleblowers to seek advance permission before exposing evidence of bureaucratic misconduct in matters of alleged national security significance, or risk criminal liability. Identifying specific information that deserves special attention in the manner employed by existing law, which better balances the public's right to know with legitimate national security and defense concerns, represents better public policy than does the broad sweep of Section 303.

The bill creates multiple strikes against the public's right to know--a principle that this Administration has publicly supported--by:

  1. discouraging anonymous dissent and disclosure of governmental misconduct because employees would risk criminal prosecution for disclosing information that may be unmarked, but classified;
  2. requiring advance permission--that may expose an employee to career-ending retaliation--to exercise free speech rights regarding disclosure of information that is not marked classified; this requirement would also have the effect of
  3. creating opportunities for wrongdoers to cover-up misconduct by destroying evidence or classifying information after the fact;
  4. encouraging the over-classification of information and a draconian interpretation of existing classification regulations. By labeling information as classified or interpreting it as such, the governmental agency involved can obtain substantial leverage over even the best- motivated and most publicly-minded of its employees--even when information should be released; and
  5. chilling and stifling customary and routine coverage of national security issues by the media by permitting--despite assurances from the bill's sponsors that this is not the intent of the bill--law enforcement agencies to use wiretapping, grand jury subpoenas and reviews of phone records against journalists and their sources who are suspected of "having reason to believe" they may be disclosing information classified somewhere in government.

If such a provision had been law, the public might never have seen or known about the Pentagon Papers, evidence exposing human rights abuse such as the My Lai massacre, false statements concealing leaks of radiation and other toxic substances on workers and into the environment, sloppy security creating vulnerability to terrorist attack at defense and national energy facilities, such as Rocky Flats Nuclear Storage Facility.

0pposition to this bill developing rapidly in Congress. We urge the President to veto the Intelligence Authorization Act or, at a minimum, ask Congress to move back by one year the effective date of this provision through an amendment to one of this year's spending bills.

This would allow the House and Senate Judiciary Committees which normally review all changes in law to hold public hearings on the consequences. As Representatives Hyde and Conyers, and Senators Leahy, Grassley, and Schumer have written, this provision has profound First Amendment implications.

Thank you.

Sincerely,

Patrice McDermott
Sr. Information Policy Analyst
OMB Watch

Kent Pollock
Executive Director
California First Amendment Coalition

Barbara Petersen
Executive Director
First Amendment Foundation

Thomas Devine
Legal Director
Government Accountability Project

Kenneth B. Allen
Executive Vice President & CEO
National Newspaper Association

Emily Sheketoff
Executive Director, Washington Office
American Library Association

Conrad Martin
Executive Director
Fund for Constitutional Government

Scott Armstrong
Executive Director
Information Trust

Bruce Craig, Ph.D
Director
National Coordinating Committee for the Preservation of History

James X. Dempsey
Senior Staff Counsel
Center for Democracy and Technology

Rich Oppel
President
American Society of Newspaper Editors

Lucy Dalglish
Executive Director
Reporters Committee for Freedom of the Press

David L. Sobel
General Counsel
Electronic Privacy Information Center

Ray Marcano
President
Society of Professional Journalists

John F. Sturm
President & CEO
Newspaper Association of America

Mary Alice Baish
Acting Washington Affairs Representative
American Association of Law Libraries

Thomas W. Newton
General Counsel
California Newspaper Publishers Association

Kathleen Edwards
Manager
Freedom of Information Center

Bill McCloskey
President
D.C. Professional Chapter
Society of Professional Journalists

Steven Aftergood
Senior Research Analyst
Federation of American Scientists

James R. Cregan
Executive Vice-President
Magazine Publishers of America

Forrest M. Landon
Executive Director
Virginia Coalition for Open Government

Patricia Roshaven*
Campus Librarian
John D. MacArthur Campus Library
Florida Atlantic University

Frederick G. Muckerman*
Editor
COMPLIANCE PUBLISHERS

Herb Strentz and Kathleen Richardson
Iowa Freedom of Information Council

Jim Warren*
Contributing Editor & Technology Public-Policy columnist
MicroTimes Magazine

Ronald J. Riley*
Advisory Board President
Alliance for American Innovation, Inc.

Richard P. Kleeman
Consultant, Retired

Michael R. Meuser
Clary Meuser Research Network

Phillip M. Runkel*
Assistant Archivist
Department of Special Collections and Univ. Archives
Marquette University

Jane E. Kirtley*
Silha Professor of Media Ethics and Law
Director, Silha Center for the Study of Media Ethics and Law
School of Journalism and Mass Communication
University of Minnesota

David A. Wallace*
Assistant Professor
School of Information
University of Michigan

Mark C. Rosenzweig*
Councilor at Large, American Library Association Co-Director, Progressive Librarians Guild


*Institutional affiliation provided for identification only.