SPJ denounces legislation aimed at curbing intelligence leaks

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FOR IMMEDIATE RELEASE
7/12/2000

Contact: SPJ legal counsel, Baker & Hostetler LLP, Robert D. Lystad, (202) 861-1660 or Bruce Brown (202) 861-1660

INDIANAPOLIS - The Society of Professional Journalists is urging the U.S. Senate toreject new efforts that would make it a crime for government employees to leak classified information.

SPJ signed a joint letter this week, along with the American Society of Newspapers Editors, the Associated Press Managing Editors, the Magazine Publishers Association, the National Newspaper Association, the Newspaper Association of America, the Newsletter & Electronic Publishers Association, the Radio-Television News Directors Association and the Reporters Committee for Freedom of the Press.

Citing existing laws that guard against the release of specific classified government information, the Society criticized the legislation as imposing criminal sanctions even when the release of the information would shed important light on inappropriate or unlawful government activities.

Particularly disturbing to these groups is the likely infringement on newsgathering activities if the legislation were to pass. In a significant number of cases, the source of classified information only could be identified through the journalist to whom the information was provided.

“In many instances, government employees turn whistleblower to reveal information in the public’s best interest,” said Kyle Elyse Niederpruem, president of SPJ and an editor at the Indianapolis Star.

“If this provision had been in place, the public might never have seen or known about the Pentagon Papers, the human rights abuses by Guatemalan authorities who were working for the CIA or the status of arms control negotiations between the United States and Russia in 1996,” Niederpruem added.

“These instances of leaked classified information shed light on important public policy issues,” stated the joint letter to members of the Senate, “including whether the information should have been classified at all.”

Supporters of the legislation, including Sen. Richard Shelby, R-Ala., chairman of the Senate Select Committee on Intelligence, have said existing laws do not cover all types of classified information and make prosecutions so difficult that leaks are endangering U.S. intelligence efforts. The language is pending before the Senate in bill No. S.2507.

But the Society and others noted that this new provision will encourage the over-classification of information and a severe interpretation of existing requirements.

“This provision would result in news entities being forced to act as the government’s enforcement agent,” the letter states. “Journalists and newsrooms are highly reluctant to name their sources to anyone, much less to the government. Refusing to answer a subpoena will land a journalist in jail. Such a scheme would trample on the basic principles of the First Amendment.

“By labeling information as classified or interpreting it as such, the governmental agency involved can obtain substantial leverage over even the best-motivated and mostpublicly minded of its employees - even when information should be released,” the letter added.

The Society of Professional Journalists is the nation’s largest and most broad-based journalism organization, dedicated to encouraging the free practice of journalism and stimulating high standards of ethical behavior. Founded in 1909 as Sigma Delta Chi, SPJ promotes the free flow of information vital to a well-informed citizenry; works to inspire and educate the next generation of journalists; and protects First Amendment guarantees of freedom of speech and press.

Read the letter signed by SPJ and other journalism groups.

To read a complete draft of the legislation, follow the link and type S.2507 in the search area labeled “number.”

Letter to Senate

July 10, 2000

The Honorable
United States Senate
Washington, DC 20510

Dear Senator:

The organizations listed below write to voice their opposition to Section 303 of the Intelligence Authorization Act of 2001, S. 2507. Section 303 imposes criminal penalties and fines on government employees who disclose any classified information to unauthorized individuals. We ask for your support to strike this provision when the bill comes to the Senate floor.

We represent both print and electronic news media and are concerned that Section 303 could have serious negative implications for our news gathering activities. Not only will the provision subject the news media to more subpoenas, demanding the source or sources of classified information, it also will lead to the practice of classifying more information as secret than is legitimately necessary. For the reasons discussed below, we believe this provision is extremely overbroad and should be stricken from S. 2507.

First, there are sufficient protections already 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). Identifying specific information that deserves special attention in the manner employed by these statutes represents better public policy than the broad sweep of Section 303 as it appropriately balances the public’s right to know with legitimate national security and defense concerns. In addition, these provisions incorporate an "intent to harm" element that is not present in Section 303. As a result, the proposed provision strays widely from previous approaches and subjects government employees to criminal penalties for the release of any classified information, no matter what their intent, even when they provide information that may shed important light on inappropriate or unlawful governmental activities.

Second, this provision would result in news entities being forced to act as the government’s enforcement agents. In a significant number of cases, the source of classified information could only be identified through the journalist to whom the information was provided. Journalists and newsrooms are highly reluctant to name their sources to anyone, much less to the government. Refusing to answer a subpoena will land a journalist in jail. The role of news entities such as newspapers and electronic media, however, is to shed light on the activities of government, not to be the government’s enforcement agents. Such a scheme would trample on the basic principles of the First Amendment.

Finally, we believe that this provision will encourage 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.

If such a provision had been law, the public may never have seen or known about the Pentagon Papers, the human rights abuses by Guatemalan authorities who were working for the CIA, the status of arms control negotiations between the US and Russia in 1996, or the evidence demonstrating that contrary to public comments that it was neutral, the Nixon administration was pro-Pakistani in the 1971 war between India and Pakistan.

These instances of leaked classified information shed light on important public policy issues, including whether the information should have been classified at all. For instance, Erwin Griswold, the solicitor general for the Nixon administration and the lead attorney for the government in the Pentagon Papers case, wrote many years later that he had not "seen any trace of a threat to the national security from the publication" of the Pentagon Papers. He says "[i]t quickly becomes apparent to any person who has considerable experience with classified material that there is a massive overclassification and that the principal concern of the classifiers is not with national security but rather with governmental embarrassment of one sort or another." (The Washington Post, February 15, 1989.)

If you have any questions, please contact either Kevin Goldberg, counsel to ASNE (202-452-4840), Molly Leahy, NAA’s director of government affairs and legislative counsel (202-638-4786) or Kathleen Kirby, counsel to RTNDA (202-719-7049).

For the reasons stated above, Section 303 needs to be stricken from the Senate Intelligence Authorization Act, S. 2507. We appreciate your attention to this very important issue.

Sincerely,

American Society of Newspaper Editors
Associated Press Managing Editors
Magazine Publishers Association
National Newspaper Association
Newsletter & Electronic Publishers Association
Newspaper Association of America
Radio-Television News Directors Association
Society of Professional Journalists
The Reporters Committee for Freedom of the Press