FOI Alert: Kyl amendment would criminalize publication of classified information
Sunshine in the Government Initiative
Statement on Proposed Kyl Amendment to S. 236
February 26, 2007
The amendment that Senator Jon Kyl (R-AZ) intends to propose as an amendment to S. 236, a bill dealing with federal data mining efforts, would in effect create an Official Secrets Act that criminalizes the publication of classified information. There have been no public hearings or discussions about this proposal.
Specifically, the amendment would prohibit unauthorized disclosure, publication or use of any
information "concerning efforts by the United States to identify, investigate, or prevent terrorist activity." It also doubles from 10 to 20 years in prison the criminal penalty for violating any aspect of Section 798 of the Espionage Act, which is very narrowly drawn to prohibit disclosures of information relating to communications intelligence.
The media understand that leaks of some government information about the war on terror can
cause harm. But existing laws are adequate to protect the information that truly needs protecting.
The Kyl amendment is so broad that it would make criminal the unauthorized disclosure of
virtually any government information relating to terrorism. The amendment would also
fundamentally alter the espionage statutes of the United States - a statutory regime that has
served us well for over 80 years.
Easing tensions over media coverage of national security matters involves better dialogue
between government and the media, not new laws. Some conflict between government and
the media is inevitable, and even healthy, in our democracy. At the same time, representatives of the media have supported and continue to support ongoing discussions among media and
government representatives to reduce some of the current tensions and better serve the interests in both our nations security and an informed public. This dialogue has been formalized into an ongoing series of meetings now hosted by the Aspen Institute and involving high-level leaders in government and the media. This approach shows promise. We urge Congress continued support of and involvement in these discussions as a constructive way to address concerns over the potential harm from disclosure of legitimate national security secrets.
Discussion Points
The amendment is vague and overbroad. By defining the information whose disclosure or
publication is prohibited to include any information concerning efforts by the United States to
identify, investigate or prevent terrorist activity, virtually any activity by government plausibly
linked to security and other anti-terrorism activities would be covered by the statute. Such
information would include emergency response planning, security failures, public safety and
health threats and government funding of related activities and other matters routinely discussed in the media. The amendment would provide government officials a powerful tool to hide actions or facts that could be embarrassing to an agency.
The proposed language is inconsistent with the existing statute it would amend.
This amendment is completely inconsistent with the information that Congress sought to protect by enacting Section 798. The statute is very narrowly limited to protection of communications intelligence information codes, ciphers and the like. In contrast, the proposed amendment encompasses a breathtakingly broad array of information that could plausibly be linked to antiterrorism efforts.
Senator Kyl seeks to amend 18 USC 798, which is very narrowly drawn to criminalize the
disclosure of communications intelligence information, or COMINT e.g., codes, cyphers and
intercepted communications of our adversaries. When Congress enacted 798, they recognized the extremely important role that communications intelligence plays in our national security and so incorporated elements of proof that make it easier to prosecute an individual for disclosing COMINT than for disclosing other more routinely classified information - crimes that are prosecuted under 18 USC 793 and 794.
For the most part, sections 793 and 794 require the government to prove that the individual
intended to harm the United States. By contrast, section 798 requires the government to prove only that the information was classified and that it relates to COMINT. If the Kyl amendment is adopted, the government would have vast power to prosecute an individual merely for communicating or publishing any information concerning terrorism. The potential for abuse is significant and the chilling affect on the publics - and Congress - right to know would be substantial.
This amendment is so broad that it may be unconstitutional. At a minimum, its vagueness
imperils the effectiveness of section 798, a statute that seeks to protect some of our most vital
secrets. For example, if the amendment is adopted and the government seeks to prosecute an
individual for disclosing COMINT relating to terrorism, the courts may well throw the
prosecution on constitutional grounds.
The amendment would greatly increase the likelihood of prosecution under the Espionage
Act. Anyone who discloses information related to efforts by the United States to identify,
investigate or prevent terrorist activity whether related to communications or not could be
punished.
This amendment may hamper the flow of information to the Congress and the general
public. The amendment precludes the public from obtaining information about government
activities of great public interest. The language prevents the American public and likely many
members of Congress from being fully informed about and knowledgably discussing actions
taken in the name of the war on terror. The amendment would work to constrain critical
reporting on homeland security even information as basic as homeland security grants as well as national security and foreign policy matters.
Kyl Amendment to S. 236
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The published stories that have attracted the greatest criticism for revealing sensitive information are unquestionably within the public interest and were published after careful consideration of government arguments for protecting specific information. Individuals with knowledge of the government activities in question raised significant questions regarding to their legality. At the very least, the stories have triggered a healthy national debate as to tension between security and liberty.
The amendment hampers public involvement in anti-terrorism efforts. This will make the
war on terror the exclusive province of a handful of intelligence agencies. It will further
discourage information sharing in an area that has already been seriously hurt by a stovepipe
culture within and among the agencies. The language runs counter to key 9/11 Commission
recommendations that the federal government engage the public more effectively in antiterrorism
efforts.
A proposal of this magnitude should have full and open public debate. In fairness to the
American people and the seriousness of the issues involved, a measure of this magnitude and
consequence should not be appended to a totally unrelated piece of legislation. The proposal
would dramatically alter the relationship between the government and the press. This
relationship has been defined in the U.S. constitution and any significant change to it that is
proposed should enjoy full and open debate.
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