[Congressional Record: December 2, 2010 (Senate)]
[Page S8399-S8400]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. ENSIGN (for himself, Mr. Lieberman, and Mr. Brown of
Massachusetts):
S. 4004. A bill to amend section 798 of title 18, United States Code,
to provide penalties for disclosure of classified information related
to certain intelligence activities and for other purposes; to the
Committee on the Judiciary.
Mr. ENSIGN. Mr. President, I rise today to address a new and very
serious threat to our national security.
In July of this year, the organization known as WikiLeaks, led by an
Australian citizen named Julian Assange, published 90,000 classified
intelligence documents related to our efforts in the ongoing war
against the Taliban insurgents and al-Qaida in Afghanistan.
In October, WikiLeaks dumped 400,000 classified documents that
revolved around the efforts of our Nation and our coalition partners to
bring democracy, peace, and stability to the people of Iraq.
Now, just a few days ago, WikiLeaks has dumped another 250,000
documents that reveal private, often personal, communications between
diplomats and heads of state--communication that is necessary for the
critical discourse that occurs between governments on the many relevant
and challenging international issues of our day.
In light of the damage that has already been done and the continuing
threat posed by WikiLeaks, I am here to introduce a bill that will help
defend our national interests, protect our troops, and provide
assurance to our friends and allies that what they say to us in private
will stay with us, and that there will be consequences for the reckless
actions taken by WikiLeaks, or others, who may attempt to do what they
have done--consequences that are consistent with our values and with
our first amendment.
Let me spend a few moments examining the nature of this threat and
some of the serious implications.
After WikiLeaks dumped 400,000 classified documents concerning our
efforts to promote democracy in Iraq, Pentagon spokesman Geoffrey
Morrell stated the Department of Defense had to scramble to notify 300
Iraqis because we were immediately concerned about their safety. He
went on to say that as many as 60,000 Iraqis could possibly be
identified in these leaked documents.
Let us consider the plight of those Iraqis just for a moment. These
individuals came forward to us with information that they felt would
help their government deal with the insurgency and terrorist presence
that has been an impediment to peace and stability within their nation.
Yet this despicable character, Julian Assange, has rewarded their
bravery by naming them to their enemies. This puts their very lives and
the lives of their families in jeopardy. This discourages other Iraqis
from coming forward and standing up for freedom.
This, in turn, jeopardizes the lives of our American troops and harms
our efforts to provide stability in Iraq to the point where we can
withdraw our troops.
Unfortunately, if Iraqis become afraid to speak out against the
terrorists in their midst for fear of being named by Julian Assange,
succeeding becomes that much more difficult.
Let's turn to Afghanistan. Back in July, I read in the Times of
London a very interesting assessment about the implication of Mr.
Assange's actions. Let me quote:
Hundreds of Afghans' lives have been put at risk by the
leaking of 90,000 intelligence documents because the files
identify informants working with NATO forces.
Let me quote again from the Times:
In just two hours of searching the WikiLeaks archive, the
Times found the names of dozens of Afghans credited with
providing detailed intelligence to U.S. forces. Their
villages are given for identification and also, in many
cases, their fathers' names.
To the credit of the Times, they cited examples to back up their
claims. But as any responsible media organization should, they at
least, in their report, took the steps of hiding the names of the
villagers who came forward with information to assist their government
and NATO.
Madam President, just as WikiLeaks recklessly dumped the leaked
intelligence on Afghanistan, a Taliban spokesperson gave an interview
in which he said:
We are studying the report. . . .We will investigate
through our own secret service whether the people mentioned
are really spies working for the U.S. If they are U.S. spies,
then we know how to punish them.
I don't think I need to elaborate on how the Taliban punishes their
enemies.
Now we have this latest dump of classified State Department cables
and information. I applaud our former colleague, Secretary Clinton, for
the excellent remarks she has made on this issue. She pointed out that
the leaks have put people's lives in danger, threatened our national
security, and undermined our efforts to work with other countries to
solve shared problems.
An essential dialog takes place between nations--a dialog that has
existed since nations first began. With that dialog, diplomats need to
be able to express their views candidly and, yes, privately. This is
how a lot of problems are solved.
Our Nation is working toward international solutions to some very
complex problems. The Government of Yemen is fighting terrorists that
reside within their own borders. The proliferation of nuclear weapons
technology and the threat of long-range missiles in North Korea are
problems that require multilateral international engagement.
Secretary Clinton made another point I will focus on for a moment.
Assange didn't just leak classified details about meetings between
diplomats. Our diplomats overseas meet with local human rights workers,
journalists, religious leaders, and others--people with unique insight
into a wider range of issues.
Unfortunately, we live in a dangerous world where revealing the
identity of someone fighting for social issues, such as women's rights
or children's rights or the identity of an advocate for religious
freedom could have serious repercussions that include imprisonment,
torture, or even death.
I wonder if WikiLeaks understands if Afghan villagers or activists
fighting for human rights under oppressive regimes are killed as a
result of being named in these leaks, the blood of these good people is
on their hands.
Before I proceed with an examination of the bill that I have crafted
to address this threat, let's be clear about some things. No one should
do Julian Assange any credit by referring to him as a journalist or as
part of the news media. He is a computer hacker and an anarchist.
True to his hacker roots, he has devised a portal through which he
hopes members of our government will anonymously and surreptitiously
provide him unfettered access to our closest secrets.
Make no mistake, these actions have harmed our friends and helped our
enemies in a manner prejudicial to the safety and national interest of
the United States.
So with this threat in mind, a threat that the Founders could have
never seen coming, we have crafted a bill that amends the Espionage
Act, specifically Title 18, Section 798.
Under current law, it is a criminal act for someone who knowingly and
willfully communicates, furnishes, transmits, publishes, or otherwise
makes available to any unauthorized person any classified information
concerning the communication intelligence activities of our United
States of America.
My bill, which we are introducing today, extends this protection
currently afforded to the communications intelligence to human
intelligence, known as HUMINT. This bill protects human intelligence
sources and methods. I want to be very clear. It is my opinion that we
can go after Julian Assange under the current statute. But what our
legislation does is updates this decades-old statute to address this
evolving threat prospectively.
I have no doubt that Assange is going to put out another document
dump on
[[Page S8400]]
his Web site and another one after that. Once he does, this bill would
give the administration increased flexibility to deal with him and
potentially other copycat organizations that aspire to his likeness.
There are a couple of concerns I want to address. First, one might
wonder how this bill stands with our first amendment. While I hope we
can all agree that Julian Assange is no journalist, some might wonder
if the amended law that would result from this bill could be applied to
the news media. It is pretty frustrating for the intelligence community
when communications intelligence sources and methods are blown.
When this happens, sources of vital intelligence dry up or become
inaccessible, and potentially millions of defense dollars go down the
drain. However, despite the serious consequences associated with losing
a communications intelligence source or method, and the damage that
does to our national security, no Presidential administration has ever
prosecuted a member of the news media under the existing statute, which
has been on the books since 1951.
Let's face it, leaks do happen. As Secretary Gates stated just a few
days ago, regrettably, our government leaks classified information like
a sieve. This bill does not stop anybody from publishing leaks, but it
does provide legal incentive to Julian Assange to do what Amnesty
International has repeatedly asked him to do: be more responsible about
how classified leaks are handled by not revealing the identity of these
classified human intelligence sources.
Let me be clear. This bill doesn't target journalists. Instead, it
provides flexibility for the Attorney General with a targeted solution
and increased flexibility to deal with WikiLeaks.
Some might be wondering whether Julian Assange, who is a foreign
citizen, can be prosecuted under the Espionage Act. In fact, the courts
long ago established that he can be prosecuted under these statutes.
I am not a lawyer, but if you study the United States v. Zehe from
1986, it becomes immediately clear that Assange can be prosecuted under
the Espionage Act.
That said, my concern is that our existing laws may have some
loopholes through which he can escape. In fact, just a few days ago in
the Washington Post, I read where Attorney General Holder said:
To the extent that there are gaps in our laws . . . we will
move to close those gaps.
Well, I submit that the bill I am introducing today, with a couple of
others, will do just that. It closes a gap in our laws and it moves to
protect vital human intelligence sources and methods consistent with
the manner in which current law communications intelligence is already
protected.
I thank Senators Lieberman and Brown of Massachusetts for joining me
in this important legislation and for the input Senators Lieberman and
Brown of Massachusetts have given me on this important legislation.
I hope we can take up this bill, consider it, work with the
administration, work with the House, and pass this important
legislation so the next time, and we know there will be a next time,
that Julian Assange and his associates leak classified intelligence
that puts people's lives in danger, we can actually have another tool
in the arsenal so our Department of Justice can go after these
despicable people.
S 4004 IS
111th CONGRESS 2d Session S. 4004
To amend section 798 of title 18, United States Code, to provide penalties for disclosure of classified information related to certain intelligence activities of the United States and for other purposes. IN THE SENATE OF THE UNITED STATES
December 2, 2010 Mr. ENSIGN (for himself, Mr. LIEBERMAN, and Mr. BROWN of Massachusetts) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
A BILL
To amend section 798 of title 18, United States Code, to provide penalties for disclosure of classified information related to certain intelligence activities of the United States and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLES.
This Act may be cited as the `Securing Human Intelligence and Enforcing Lawful Dissemination Act' or the `SHIELD Act'.
SEC. 2. PENALTIES FOR DISCLOSURE OF CLASSIFIED INFORMATION RELATED TO INTELLIGENCE ACTIVITIES.
(a) In General- Subsection (a) section 798 of title 18, United States Code, is amended--
(1) in the matter preceding paragraph (1), by inserting `or transnational threat' after `foreign government';
(2) in paragraph (3), by striking `or' at the end;
(3) by redesignating paragraph (4) as paragraph (6); and
(4) by inserting after paragraph (3) the following:
`(4) concerning the human intelligence activities of the United States or any foreign government;
`(5) concerning the identity of a classified source or informant of an element of the intelligence community of the United States; or'.
(b) Definitions- Subsection (b) section 798 of title 18, United States Code, is amended to read as follows:
`(b) Definitions- In subsection (a):
`(1) CIPHER, CODE, CRYPTOGRAPHIC SYSTEM- The terms `cipher', `code', and `cryptographic system' include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications.
`(2) CLASSIFIED INFORMATION- The term `classified information' means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution.
`(3) COMMUNICATION INTELLIGENCE- The term `communication intelligence' means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients.
`(4) FOREIGN GOVERNMENT- The term `foreign government' includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States.
`(5) HUMAN INTELLIGENCE- The term `human intelligence' means all procedures and methods employed in the collection of intelligence through human sources.
`(6) INFORMANT- The term `informant' has the meaning given that term in section 606 of the National Security Act of 1947 (50 U.S.C. 426).
`(7) TRANSNATIONAL THREAT- The term `transnational threat' means--
`(A) any transnational activity (including international terrorism, narcotics trafficking, the proliferation of weapons of mass destruction and the delivery systems for such weapons, and organized crime) that threatens the national security of the United States; or
`(B) any individual or group that engages in an activity referred to in subparagraph (A).
END
`(8) UNAUTHORIZED PERSON- The term `unauthorized person' means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a), by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence or human intelligence activities for the United States.'.