Congress of the United States The Honorable Harold Rogers
House of Representatives
Committee on the Judiciary
2138 Rayburn House Office Building
Washington, D.C. 20515-6216October 25, 2000
Chairman
Subcommittee on Commerce, Justice, State and Judiciary
House Committee on AppropriationsThe Honorable Jose E. Serrano
Ranking Member
Subcommittee on Commerce, Justice, State and Judiciary
House Committee on AppropriationsDear Chairman Rogers and Ranking Member Serrano:
We are writing to express our concerns regarding section 304 of the Intelligence Authorization Act for FY 2001, which passed both Houses of Congress on October 12, 2000. Section 304 of the Act makes it a felony for a government employee to disclose any and all information that the government says is classified. Despite the fact that such legislation falls squarely within the jurisdiction of the Judiciary Committee, the Committee was afforded no chance to consider the ramifications of this sweeping change in the law. Therefore, we would request that language be included in the CJS appropriations that would delay the effective date of this provision for one year.
We are extremely disappointed with the process that resulted in this legislation. There were no public hearings in the House on this legislation and no opportunity for public debate on this measure, even though this new prohibition is similar to measures that Congress has consistently rejected for the past 50 years.
To be sure, leaks of classified information are a serious matter because such leaks can endanger national security. Current law already makes illegal the leaking of certain national defense information, and a person with a security clearance can lose their clearance -- and their job -- if they leak classified information.
However, whether all leaks should trigger substantial criminal penalties, as would be the case under Section 304, is a question within the jurisdiction of the Judiciary Committee. It has profound First Amendment implications and because it effectively delegates to the Executive Branch the unilateral ability to determine the scope of speech that could be censored with criminal penalties, it may be unconstitutionally delegate legislative determinations and therefore violate separation of powers. Moreover, Section 304 will dangerously chill whistleblowers who otherwise properly and legitimately disclose government mismanagement and wrongdoing.
In fact, if this provision had been on the books during the past 30 years, we might never have learned about:
If we are to create a new federal crime for the release of any properly classified information, we should do it only after careful hearings and consideration of the constitutional dimensions. Neither the Intelligence Committee nor the Judiciary Committee has done so.
- the exposure of workers at a Kentucky uranium plant to excessive amounts of plutonium and uranium;
- the scope of the government's activities in Vietnam through the Pentagon Papers;
- the CIA's complicity in the overthrow of Salvador Allende in Chile;
- the Nixon Administration's support of Pakistan in its 1971 war with India;
- the revelations about spying at U.S. laboratories; and
- China's alleged military involvement with Pakistan and North Korea.
That is why we are asking you to include language in the CJS Appropriations Bill that would delay the effective date of this provision and allow time to study the ramifications of this legislation thoroughly.
Sincerely,
HENRY J. HYDE
ChairmanJOHN CONYERS, JR.
Ranking Membercc: The Honorable C.W. Bill Young
The Honorable David Obey