When President Bill Clinton vetoed anti-leaks provision in 2000 that would have made nearly all unauthorized disclosures of information by officials a felony, he warned of a “serious risk that this legislation” would have “a chilling effect on those who engage in legitimate activities.” But a draft signing statement released by the Clinton Library this month show how he would have defended the provision if he had decided to sign it into law.
Senator Richard Shelby had introduced an amendment to the intelligence authorization bill for fiscal year 2001. Shelby argued the amendment would “fill gaps in existing law by giving the Justice Department new authority to prosecute the knowing and willful unauthorized disclosure of classified information to a person not authorized to receive that information.” It would make it possible for officials to be penalized with fines of up to $10,000 or three years in prison.
He maintained, “While current law bars unauthorized disclosure of certain categories of information, for example, cryptographic or national defense information, many other sensitive intelligence and diplomatic secrets are not protected.” He specifically wanted to stop leaks to news organizations.
Clinton prepared to defend this amendment [PDF] by declaring that “unauthorized disclosures” could be “extremely harmful to the national security interests of the United States” and could “hinder my ability to make decisions affecting our nation’s security and put at risk scarce and irreplaceable intelligence sources and methods indispensable for acquiring the information necessary to make those decisions in the best possible way.”
He also planned to downplay the extent to which the provision might be applied in a draconian manner by suggesting the “new provision should not be applied in a manner that could chill legitimate activity or transform questions of judgment into criminal referrals.”
“It is extraordinarily important, therefore, that the Justice Department use its prosecutorial discretion wisely when apparently unauthorized disclosures are referred to it for possible prosecution under this new provision.”
Yet, the draft signing statement also would have indicated that “many of the problems this legislation seeks to address should normally be handled through strict application of personnel security practices,” which would have been an acknowledgment that this punitive authority to go after leakers was not needed at all.
Shelby’s anti-leaks provision ultimately faced a backlash from The New York Times, The Washington Post, CNN, the Newspaper Association of America, the Radio-Television News Directors Association, and other organizations.
Clinton chose to veto the intelligence authorization bill and request that Congress return this legislation to his desk without the anti-leaks provision.
The president stated in his veto message, “A desire to avoid the risk that their good faith choice of words — their exercise of judgment — could become the subject of a criminal referral for prosecution might discourage government officials from engaging even in appropriate public discussion, press briefings, or other legitimate official activities.”
“Similarly, the legislation may unduly restrain the ability of former government officials to teach, write, or engage in any activity aimed at building public understanding of complex issues. Incurring such risks is unnecessary and inappropriate in a society built on freedom of expression and the consent of the governed and is particularly inadvisable in a context in which the range of classified materials is so extensive. In such circumstances, this criminal provision would, in my view, create an undue chilling effect.”
Shelby again tried to get the provision passed in 2001, but, on September 5, President George W. Bush’s administration decided the legislation was not needed to “safeguard national security.” A Senate hearing on the provision was canceled. Then, later in 2002, as Shelby “reintroduced his language,” “then-Attorney General John D. Ashcroft said that ‘rigorous investigation’ and enforcement of existing laws—not new legislation—were the best way to fight leaks,” according to The Washington Post.
President Barack Obama’s administration has proven that the Justice Department cannot be trusted to show “prosecutorial discretion.” The prosecutions of NSA whistleblower Thomas Drake, former State Department employee Stephen Kim, CIA whistleblower John Kiriakou, former FBI translator Shamai Leibowitz, former CIA officer Jeffrey Sterling and Navy contract linguist James Hitselberger are far from examples of federal prosecutors using discretion wisely.
Hitselberger’s case recently concluded last week when he was sentenced to time served and fined $250. Like the previously mentioned cases, he was charged with violating the Espionage Act when he passed along documents to a library at the Hoover Institution at Stanford University.
The prosecutors effectively used the sledgehammer that is the Espionage Act to pressure him into pleading to a misdemeanor of “taking classified documents without authority.”
One can only imagine how much more zealous the Obama administration’s clampdown on leaks would have been in the past years if Clinton had not opposed this provision.
Nonetheless, it is not like the administration has struggled to conjure up ways to criminalize leaks. The Espionage Act has been transformed by the Obama administration into something far worse than the provision Clinton vetoed. It has made it possible to charge anyone who discloses classified information in order to ignite debate on matters of public interest as if they are spies.
Since disclosures by Edward Snowden and Chelsea Manning (who was convicted of committing Espionage Act violations), Obama has presided over the institution of an Insider Threat Program, which McClatchy Newspapers has reported equates “leaks” with “espionage,” encourages snitching and advises employees to be on the lookout for individuals suffering from “narcissism” or “antisocial personality disorder.” Director of National Intelligence James Clapper has sought to prohibit intelligence agency employees from having unauthorized contact with journalists, even if they are discussing unclassified information, and has been involved in developing a system of total surveillance for security clearance holders so they are monitored on and off the job.
Photo is from US Defense Department and in the public domain.