FAS | Government Secrecy | September 2000 News ||| Index | Search | Join FAS

The Pending "Leak" Statute is Unconstitutional

an analysis by
Kate Martin
Director, Center for National Security Studies
General Counsel, National Security Archive

Pending in the Senate is a proposal to enact an "Official Secrets Act" for the United States. Section 303 of the Intelligence Authorization Act of 2001, S. 2507, would make it a crime for government employees to disclose classified information to the public. The proposal is unconstitutional. In violation of the First Amendment, it would stifle informed public debate about the most serious matters of national defense and foreign policy.

For the last 50 years, Congress has consistently rejected as unnecessary and unconstitutional, proposals, usually from the CIA, to make leaking classified information to the press a crime. Now, without any public hearings, without any consideration by the Judiciary Committee, and without even any public debate on the floor of the Congress, such a provision has been included in the Intelligence Authorization bill in the Senate.

The Proposal is Unconstitutional.

Criminalizing public disclosures of national security information raises serious First Amendment problems. Democracy requires an informed public, especially about the most serious matters of defense and foreign policy. The public's right to know may not be held hostage to criminal sanctions for disclosing any information that comes within the broad scope of any classification standards a President decides to adopt.

This proposal violates the constitutional requirement that the government employ the least restrictive means when it seeks to outlaw core First Amendment speech. Serious, albeit non-criminal, penalties already exist for unauthorized disclosures by government employees of classified information. Employees who leak information to the press properly lose their security clearances and in most cases their jobs and any future chance of government employment.

In addition, it is already a crime to leak the most sensitive kinds of national security information, in particular the names of covert intelligence agents or cryptographic and communications intelligence information. 1

The threat of prosecution for leaking classified information would have a broad, chilling effect on public debate, which cannot be justified by the goal of preventing serious harm to national security interests. Millions of pages of documents in myriad federal agencies are "properly classified" under current classification standards. While the government may have a legitimate interest in keeping such information secret, much of it is also important to public policy debate. The front pages of newspapers have reported such "properly classified" information for at least the past 25 years, beginning with the Pentagon Papers and including the intelligence community budget held by a federal judge to be properly classified.

Thus, "proper classification" does not meet the First Amendment requirement for criminalizing public disclosures by government employees lying at the core of the First Amendment.

Rather, as Congress has consistently recognized in dealing with proposed leak statutes, the First Amendment permits criminal sanctions for such disclosures only for those narrow categories of specific information, where it is likely that disclosure will result in immediate and substantial harm to a substantial national security interest and the information is of marginal relevance to public policy debate. Applying this standard in 1984, Congress criminalized leaks by government employees of the names of covert intelligence agents. Indeed, both Congress and the President have explicitly recognized that even when information is properly classified, the public interest in knowing the information may require its public disclosure. Executive Order 12958 setting classification standards, directs that in "some exceptional cases" where "the need to protect [ ] information may be outweighed by the public interest in disclosure of the information" such information shall be disclosed. Sec. 3.2(b). The Rules of the Congress set out procedures whereby the Congress may decide to publicly disclose classified information after a determination "that the public interest would be served by such disclosure." See Senate Res. 400 sec. 8(a).

Just as the government may not obtain a prior restraint against publication of properly classified information except in the most rare and compelling circumstances, it may not use the heavy hand of the criminal law to prevent public access to crucial information about national security matters.

The Bill also Threatens Freedom of the Press.

If enacted, the bill is also likely to directly threaten press freedoms. While on its face, the bill applies criminal penalties only to government employees, Supreme Court opinions would allow the government to subpoena journalists to compel them to identify their confidential sources in order to identify who leaked classified information. While current Justice Department regulations severely restrict such subpoenas, the regulations are subject to change by the Attorney General.

There Has Been No Public Debate or Review of this Proposal.

If the government were to make a compelling showing of actual and substantial harm from leaks of specific kinds of classified information, the Congress could then consider whether grounds exist to criminalize leaks of any additional narrow and specifically identified category of information, in light of its importance to public policy debate. It has not done so. In the absence of any such showing, and indeed, any public argument whatsoever about the need for such a bill, the process and the bill are a constitutional affront.

September 27, 2000


1. While the Justice Department argued successfully in one case that the espionage laws apply not only to spies but to leakers, that position has never been generally accepted by the courts and the government itself has acknowledged the uncertainties and difficulties involved in applying the espionage laws to leaks.

2. The Justice Department has proposed that the bill be amended to refer to disclosures of "properly" classified information. Such an amendment would not cure the basic constitutional infirmity of the bill.

FAS | Government Secrecy | September 2000 News ||| Index | Search | Join FAS