Legislation Criminalizes Disclosures of Classified Information

Sen. Jon Kyl (R-AZ) introduced an amendment Mar. 2 to prevent the unauthorized disclosure of classified information by congressional employees. The proposal is a scaled-back version of a previous ambitious attempt to criminalize all leaks of classified information, but the amendment still met with strong opposition from the public interest and open government community. Kyl considered introducing an amendment to an unrelated bill regarding government transparency on matters of data mining. The proposal would have amended the Espionage Act to criminalize the unauthorized disclosure of classified information regarding "efforts by the United States to identify, investigate, or prevent terrorist activity." A coalition of organizations, including OMB Watch, OpenTheGovernment.org, the Federation of American Scientists, and others, described Kyl's amendment as an effort to, "stifle, with the threat of criminal prosecution, informed public debate about the most serious matters of the effectiveness of government counterterrorism efforts." Important disclosures of controversial counterterrorism efforts, like the National Security Agency's spying program, the Central Intelligence Agency's network of secret prisons, and the Abu Ghraib torture scandal, which potentially violate the Constitution, international law and sound policy judgment, would have been criminalized by the Kyl amendment. In the face of strong opposition, the language of the amendment was narrowed to prevent leaks of classified information from Congress and introduced on a different bill. Kyl's new amendment would revise the Espionage Act to criminalize the disclosure by an employee or member of Congress of information "contained in a report submitted to Congress pursuant to the Improving America's Security Act of 2007, the USA Patriot Improvement and Reauthorization Act of 2005, or the Intelligence Reform and Terrorism Prevention Act of 2004." While an improvement over the previous amendment, this new amendment is, likewise, opposed by public interest advocates as an affront to an accountable and transparent government on matters of national security. Kyl is attempting to attach his new amendment to Senate legislation which enacts many of the unresolved 9/11 Commission recommendations, Improving America's Security Act of 2007, (S. 4). A floor vote could occur on the amendment later this week, though it remains unclear if it will be found germane.
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