Secrecy Bill Slapped Down -- For Now

by Jim Lobe

Despite urging from conservative lawmakers, including the ranking Republican on the Senate Intelligence Committee, Senator Richard Shelby, the Bush administration has decided, at least for now, not to support the amendment. President Clinton had vetoed the amendment last year.

The White House declined to issue an official statement on its decision but senior officials indicated they would set up an inter-agency task force to determine whether such a law is necessary.

Critics of the bill claimed victory when the Intelligence Committee cancelled a hearing scheduled for September 5 to take testimony on the provision.

"This is a huge victory," said Tom Blanton, director of the National Security Archive, a private group that obtains and publishes declassified documents. "This means that, unless and until the Bush administration makes a public case about the damage being done by leaks and what it would take to fix it, this bill won't be seeing the light of day."

A spokesperson for Shelby told IPS that the senator would work with Attorney-General John Ashcroft, who likely will chair the interagency group. She suggested that Shelby would not make any move to revive the provision until after the planned review.

The United States has a number of laws on the books which make unauthorized disclosure of certain kinds of classified information -- regarding nuclear weapons, military codes, and the names of U.S. intelligence agents -- a criminal offense.

In addition, the disclosure of any classified information that harms national defense has been a crime. It has only rarely been prosecuted, however, in part because of the difficulty in proving harm.

The Central Intelligence Agency and other arms of U.S. intelligence have long sought more sweeping laws. They found a strong ally in Shelby, a former Democrat, when he took over the Intelligence Committee in 1996.

His bill, which critics have called an Official Secrets Act, would make it a felony for active or retired government employees to intentionally disclose classified information. The offense would be punishable by substantial fines and up to three years in prison. Under the bill, the government would not have to prove actual harm to national security, only that the information was in fact passed on to someone not authorized to receive it.

"Leaks basically come from the executive branch -- about 80 percent," Shelby said last year after he introduced the bill. "I think they undermine national security (and) do damage to this country," he told interviewers on the Public Broadcasting Service (PBS).

Although Shelby declined to cite examples because they would disclose classified information, officials have told reporters that press leaks tipped off Osama bin Laden, the alleged Islamist terrorist, to U.S. interceptions of his satellite phone conversations. He then switched to more sophisticated phone systems, according to these officials.

The Clinton administration originally supported the amendment when Shelby attached it to the 2001 Intelligence Authorization Act and then rammed it through the Republican-led Senate without hearings.

Press groups and other interested organizations, such as the American Civil Liberties Union and the National Security Archive, were taken off guard by the speed with which Shelby moved and the acquiescence of both the administration and other senators.

By the time the bill reached Clinton's desk, however, the same groups had mobilized a number of both Democratic and Republican lawmakers to get his attention. Clinton overruled his Justice Department and vetoed the measure, arguing that it could "chill legitimate" efforts by journalists and others to disclose improper government actions.

His plans, however, suffered a serious setback last May when the defection of Republican Senator James Jeffords gave the Democrats a majority in the upper chamber. Last year, the new Senate Majority Leader, Tom Daschle, was one of the strongest critics of both the Shelby amendment and the way it was attached to pending legislation without even a hearing.

Moreover, press groups and other critics launched a major campaign against the amendment, notably by getting local newspapers to publish strong editorials against it. Shelby's own home newspaper in Alabama last week published an editorial entitled, "Stop, Thief."

"This frightening bill deserves far more scrutiny than can be offered in a hearing next week because it will inevitably chill interaction between the government and the public," said Tim McGuire, editor of Minneapolis's most important newspaper and president of the American Society of Newspaper Editors (ASNE), one of the groups opposing the amendment.

"We have not had an Official Secrets Act in times of war or the Cold War and we do not need one now," he said in a press release distributed by ASNE.

Other groups that churned out letters and opinion articles published in newspapers included the Newspaper Association of America (NAA), the American Library Organization (ALA), the Federation of American Scientists, and several historical associations which have clashed repeatedly with the CIA in recent years over the its refusal to declassify 50-year-old cables and other intelligence documents on the grounds that doing so might harm national security.

Blanton, who was scheduled testify at the hearing, cited several factors in the administration's decision not to pursue Shelby's amendment.

"First, senators came back from recess and read their press clips and decided that the world's greatest deliberative body should actually deliberate on this," he said. "Second, career lawyers at the Justice Department who went along with the Shelby amendment last year rethought their position. Ashcroft found significant disagreement among his top lawyers."

A third factor was provided by recent media attention to an ongoing investigation in New York in which a federal prosecutor successfully subpoenaed records from the telephone company of an Associated Press reporter to determine who may be leaking information about the investigation.

While Shelby had stressed that journalists should not be threatened by his amendment since it applied only to U.S. government officials, Blanton said, "the New York case raised awareness about prosecutorial overreach."