March 6th, 2007
Kill the Kyl Amendment!
By Christine Tatum
Sen. Jon Kyl (R-AZ) appears to be determined to criminalize the leaking — and publishing — of classified information. The Senate could vote as early as this week on what amounts to a backdoor approach to an official secrets act.
Here’s some brief history for you provided with help from Pete Weitzel of The Coalition of Journalists for an Open Government, of which SPJ is a part:
Sen. Kyl tried unsuccessfully to ram his proposal through the U.S. Senate Judiciary Committee last week by attaching an amendment to an unrelated bill on data mining. The bill was postponed in part because its sponsor considered the amendment unfriendly (no kidding). Never mind that Kyl tried to sneak in his proposal without any public hearings or discussion about this matter.
When the committee route didn’t work, Kyl rewote the amendment and resubmitted it as a floor amendment to Senate Bill 4, which would enact recommendations of the 9/11 Commission. That bill could be voted on this week.
What’s especially galling is that Sen. Kyl seeks to use this parliamentary move to avoid airing his lame-brained idea during a full public hearing. Who needs thoughtful debate and discussion about whether any new law involving leaks is needed? Apparently, not him.
The modified amendment is not as sweeping as the earlier version, but it is still dangerous to a free press and the public’s right to know what its government is doing in its name. The new amendment would make it a crime to leak or “publish” any classified information contained in reports provided to Congress.
Even as modified, Weitzel says, “the amendment is a dangerous overhaul of the espionage statutes and dramatically lowers the buden that the government must meet to prosecute a government leaker. Instead of proving, as required by current law, that the individual has reason to believe the information could be used to the injury of the United States, the government would only have to prove the individual used the information ‘in any manner prejudicial to the safety or interest of the United States.’ This lower standard could lead to a chilling of daily communications between the government and the media.”
Kyl’s amendmet would make it a crime to “publish” any classified information in reports provided to Congress. Here’s just one example of how that could hamper the public from holding government accountable:
Let’s say a particular U.S. port or airport is vulnerable to a terrorist attack because local officials have failed to provide adequate security. Reporters who spill those beans could be prosecuted for informing the public of the risks to their safety.
The Sunshine in Government Initiative — another coalition of which SPJ is a part — has prepared some interesting talking points for everyone wanting to know more about Kyl’s proposal (Please note that the last one is mine):
The Kyl Amendment should be rejected because it is a radical — and backdoor — overhaul of the espionage statutes, which strike a delicate balance between national security and the First Amendment.
The Kyl Amendment would make it a crime to leak or “publish” any classified information contained in reports Congress receives under three acts, the Improving America’s Security Act of 2007, the USA Patriot Improvement and Reauthorization Act of 2005 and the Intelligence Reform and Terrorism Prevention Act of 2004.
There are at least some 28 reports to Congress required by these statutes. The reach of the amendment is astonishing. It would make it a crime to leak — or publish — “any classified information contained in” one of these reports. Because it sweeps in information “contained” in the reports, it also covers any document anywhere that “contains” that information.
Before enacting such a sweeping amendment, Congress must make the case to the general public the information in the reports required by the statutes has leaked and caused harm to national security. Congress should also explain why the Justice Department is unable — under existing law — to prosecute an individual who leaks classified information contained in those reports.
The Kyl Amendment also raises the possibility of prosecuting the media. The plain language of the amendment makes it a crime to “publish” any classified information in the reports.
The Executive Branch routinely overclassifies vast amounts of information. This amendment reaches into deepest recesses of the executive branch and gives bureaucrats who may want to cover up their mistakes more power to protect that information with the criminal law.
The Kyl Amendment dramatically lowers the burden that the government must meet in order to prosecute a leaker. Instead of proving, as required by current law, that the individual has reason to believe the information could be used to the injury of the United States, the government would only have to prove that the individual used the information “in any manner prejudicial to the safety or interest of the United States”. This much lower standard would raise very fundamental constitutional questions, and such a major change in the criminal law should not be enacted without hearings.
There is no evidence that this amendment is needed. Attorney General Ashcroft, in a report to Congress in March 2002, stated that the existing espionage laws were adequate.
Congress has no business voting on a matter as serious as this without conducting more research and inviting public debate and discussion.