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Sen. Cardin Resumes His Fight Against Leaks

February 17, 2011 - by Donny Shaw

Wikileaks may have moved few notches lower in the headlines recently, but members of Congress haven’t forgotten. Sen. Ben Cardin [D, MD], the former Chairman of the Terrorism and Homeland Security Subcommittee, has reintroduced a bill from late last session that would make it a felony for government employees and contractors to disclose any information in violation of their nondisclosure agreements, regardless of whether or not the discloser was trying to help a foreign government or harm the U.S. Needless to say, whistleblower right advocates are worried.

Steven Aftergood at Secrecy News reports:

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.”  The bill would not criminalize the receipt of leaked information, and it would not apply to whistleblowers who disclose classified information through authorized channels.

But it 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.

So, under the bill, whistleblowers’ disclosures would have to be “in accordance with a Federal whistleblower protection statute” or they would have to convince a court that, contrary to the government’s opinion, the disclosed information does not actually threaten national security. There are no good leaks. Otherwise, jail.

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