By William Weaver
wweaver@utep.edu

Q. How many Americans would be covered by the statute?

Q. If reporters are former government employees, is there a First Amendment protection for disclosing classified information that reveals government lawlessness, and if the disclosure is in a news forum unconnected to their former employment?

Q. Will the statute be applied to leakers consistently regardless of the motivations and consequences of the leaks?

Senate Bill 3774 is the latest piece of legislation allegedly aimed at protecting national security. Introduced by Senator Kit Bond (R-MO), it would criminalize unauthorized disclosure of classified information. This bill is dangerously vague and provides virtually unlimited discretion to the Department of Justice in deciding whom to prosecute. It would be a catastrophe for reporters and the free press.

Currently, only a handful of particular kinds of classified information—such as the identity of covert agents—carry with them criminal penalties if they are disclosed to unauthorized persons. This bill has identical language to one passed by Congress, but vetoed in 2000 by President Bill Clinton, which was dubbed the “Official Secrets Act,” after a similar British law. President Bush is almost certain to sign this legislation into law if it passes, which is a distinct possibility since the bill Clinton vetoed passed pre-9/11 in an arguably less compliant Congress. 

The legislation would make punishable by three years in prison the disclosure of classified information to unauthorized persons by "any officer or employee of the United States, a former or retired officer or employee of the United States, any other person with authorized access to classified information, or any other person formerly with authorized access to classified information." This language covers any former or present member of the armed services and any private citizen who has received a clearance in conjunction with employment or who has signed a non-disclosure statement.

More importantly, there is no requirement that there be a link between the fact of employment or clearance and what was disclosed; people would be vulnerable to prosecution for disclosing information they did not come by through their employment.

For example, suppose a reporter at a newspaper is a veteran. Suppose further that she receives classified information from a source, and the leaked information details activity by an agency that is in violation of the Constitution. Under the Bond bill, the reporter may be prosecuted if the newspaper runs the story. Indeed, the editor or editors, and anyone else involved in producing or publishing the story, would be liable to prosecution if they are veterans, or former government employees, or have ever signed a non-disclosure agreement.

This example is not far-fetched. The Bush administration is doing just this, even without the Bond legislation.

Case in point: Two employees of the American Israel Public Affairs Committee have been indicted under the Espionage Act of 1917 for communicating classified information to unauthorized persons. Neither defendant was an employee of the United States, but one had held a security clearance when he worked for Rand Corporation between 1978-1982. The other AIPAC employee never has held a clearance and has never signed a nondisclosure agreement.

Steve Aftergood of the Federation of American Scientists has  posted documents related to the AIPAC case on the Web. The documents, and the case itself, provide a glimpse of how the Bond legislation would be used to control the media and undermine the First Amendment. The AIPAC employees are legally in no different a position than reporters.

Considering there are over 25 million living veterans, and millions more current and ex-federal government employees, and yet millions more who have clearances or signed non-disclosure agreements through the National Industry Security Program for private corporations holding classified information, perhaps as much as one-third of adult Americans would be covered by the statute.

I could be prosecuted, since I served in the Army for nine years.  It is also possible that the government may believe my co-author and I have disclosed classified information in a forthcoming book (Presidential Secrecy and the Law, Johns Hopkins University Press).

Considering that the Bush administration has retroactively classified material, reclassified material after declassification, and otherwise darkened the waters concerning classified information, how could any author, researcher, reporter, or even the average person sending an e-mail to former military buddies, be sure they will not be waylaid with a criminal prosecution under the Bond bill?

Second, the statute would inevitably be subject to a double standard in its application. For example, much information is leaked to the press with the approval of administrators.  These kinds of leaks are an unofficial channel for shoring up administration positions and to influence public opinion.

On the other hand, unauthorized leaks would be prosecuted when they undermine administration positions or embarrass the executive branch or reveal illegal agency activity. So whether or not a person would be prosecuted would depend on whether or not the leak is popular or unpopular with the administration in power at the time of the leak.

The bill is now in the Judiciary Committee. Signatories to it aside from Bond are Senators Lott, Chambliss, Stevens, Cochran, Burns, Hatch, Santorum, Cornyn, Domenici, Bennett, and Alexander.

Without a doubt, this legislation is designed to prevent accountability provided by whistle-blowers. If the statute were to be applied evenhandedly, the jails would be full of administrators and presidential advisors. 

Bill Weaver is a government professor at the University of Texas at El Paso and senior advisor to the National Security Whistleblowers Coalition. E-mail: wweaver@utep.edu

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