Politics

Felonizing Whistleblowers

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Jackass

Government transparency watchdog Steven Aftergood alerts us to a bad new bill:

Legislation introduced in the Senate this week would broadly criminalize leaks of classified information.  The bill (S. 355) sponsored by Sen. Benjamin Cardin (D-MD) would make it a felony for a government employee or contractor who has authorized access to classified information to disclose such information to an unauthorized person in violation of his or her nondisclosure agreement.

Under existing law, criminal penalties apply only to the unauthorized disclosure of a handful of specified categories of classified information (in non-espionage cases).  These categories include codes, cryptography, communications intelligence, identities of covert agents, and nuclear weapons design information.  The new bill would amend the espionage statutes to extend such penalties to the unauthorized disclosure of any classified information. […]

The bill would replace the Espionage Act's use of the term "national defense information" with the broader but more precise term "national security information."  It would outlaw any knowing violation of an employee's classified information nondisclosure agreement, "irrespective of whether [the discloser] intended to aid a foreign nation or harm the United States." […]

Ah, the redesign!

[I]t would establish a rebuttable presumption that any information marked as classified is properly classified.  (The bill does not distinguish between "information" and "records.")  This means that the government would not have to prove that the leaked information was properly classified;  the defendant would have to prove it was not. In order to mount a defense arguing "improper classification," a defendant would have to present "clear and convincing evidence" that the original classifier could not have identified or described damage to national security resulting from unauthorized disclosure.  Such challenges to original classification are almost never upheld, and so the defendant's burden of proof would be nearly impossible to meet.

The bill does not provide for a "public interest" defense, i.e. an argument that any damage to national security was outweighed by a benefit to the nation.  It does not address the issue of overclassification, nor does it admit the possibility of "good" leaks.  Disclosing that the President authorized waterboarding of detainees or that the government conducted unlawful domestic surveillance would be considered legally equivalent to revealing the identities of intelligence sources, the design of secret military technologies or the details of ongoing military operations.

And at a time when an unprecedented number of leak prosecutions are underway, the bill's premise that an enhanced ability to prosecute leaks is needed seems questionable.

Reason on secrecy here and here.