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Update 3/5/07

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  3/5/07

 

Once again, an urgent request for action in response to efforts by Sen. Jon Kyl, R-AZ, to criminalize the leaking – and publishing – of classified information.

Sen. Kyl first sought to attach to a data mining bill being considered by the Judiciary Committee what can only be described as a backdoor approach to an official secrets act. When the bill was held over, at least in part because its sponsor considered the amendment unfriendly, Sen. Kyl withdrew it and then submitted a rewritten version as a floor amendment to Senate Bill 4, which would enact recommendations of the 9/11 commission. That bill could be voted on as early as mid-week.

The modified amendment is not as sweeping as the earlier version but it is still dangerous revision of the Espionage Act and its chill would inevitably extend far beyond the classified information included. The new amendment makes it a crime to leak or “publish” any classified information contained in reports provided to Congress. These required reports -- 28 in all -- are detailed in three statutes identified in the amendment. (A copy is attached.)

Even as modified, the amendment is a dangerous overhaul of the espionage statutes and dramatically lowers the burden that the government must meet in order to prosecute a government leaker.  Instead of proving, as required by current law, that the individual has reason to believe the information could be used to the injury of the United States, the government would only have to prove the individual used the information "in any manner prejudicial to the safety or interest of the United States".   This lower standard could lead to a chilling of daily communications between the government and the media. 

In addition, amendment makes it a crime to “publish” any classified information in the reports. If one of these reports says that a particular US port is vulnerable because local officials have been negligent in providing adequate security, and that is reported in the local newspaper, the reporters and publisher could be prosecuted for informing local citizens that they may be at risk,

Once again, Sen. Kyl seeks to use the amendment procedure to avoid the give and take of hearing and debate and a full and thoughtful discussion of whether any new law involving leaks are needed.

From our soundings on the Hill, there is considerable concern that if the amendment is added to the 9/11 bill it could be approved by the Senate.

This is not the time to wait and see what happens. Please share this and impress on your members the urgency of raising all our voices.  

Here are some talking points prepared by the Sunshine in Government Initiative.

Pete Weitzel

TALKING POINTS ON KYL AMENDMENT

The Kyl Amendment should be rejected because it is a radical - and backdoor - overhaul of the espionage statutes, which strike a delicate balance between national security and the First Amendment.

The Kyl Amendment would make it a crime to leak or “publish” any classified information contained in reports we receive under three acts, the Improving America’s Security Act of 2007, the USA Patriot Improvement and Reauthorization Act of 2005 and the Intelligence Reform and Terrorism Prevention Act of 2004.

There are at least some 28 reports to Congress required by these statutes. The reach of the amendment is astonishing. It would make it a crime to leak - or publish - “any classified information contained in” one of these reports. Because it sweeps in information “contained” in the reports, it also covers any document anywhere that “contains” that information.

Before enacting such a sweeping amendment, the Congress must make the case to the general public the information in the reports required by the statutes has leaked and caused harm to national security. Congress should also explain why the Justice Department is unable- under existing law – to prosecute an individual who leaks classified information contained in those reports.

The Kyl Amendment also raises the possibility of prosecuting the media. The plain language of the amendment makes it a crime to “publish” any classified information in the reports. If one of these reports says that a particular US port is vulnerable because local officials have been negligent in providing adequate security and the local newspaper runs that story, do we want to prosecute the local reporters and publisher for informing local citizens that they may be at risk?

The Executive Branch routinely overclassifies vast amounts of information. This amendment reaches into deepest recesses of the executive branch and gives bureaucrats who may want to cover up their mistakes more power to protect that information with the criminal law.

The Kyl Amendment dramatically lowers the burden that the government must meet in order to prosecute a leaker. Instead of proving, as required by current law, that the individual has reason to believe the information could be used to the injury of the United States, the government would only have to prove that the individual used the information “in any manner prejudicial to the safety or interest of the United States”. This much lower standard would raise very fundamental constitutional questions, and such a major change in the criminal law should not be enacted without hearings.

There is no evidence that this amendment is needed. Attorney General Ashcroft, in a report to Congress in March 2002, stated that the existing espionage laws were adequate.