A provision tucked into the Senate version of the Fiscal Year 2000 Intelligence Appropriations Act threatened to further curtail access to classified government documents until President Clinton vetoed the bill, citing the danger it posed to free speech.

    The offending provision was Section 303 of the Fiscal Year 2001 Intelligence Authorization Act, S. 2507. It stated:

Whoever, being an officer or employee of the United States, a former or retired officer or employee of the United States, any other person with authorized access to classified information, or any other person formerly with authorized access to classified information, knowingly and willfully discloses, or attempts to disclose, any classified information acquired as a result of such person’s authorized access to classified information to a person (other than an officer or employee of the United States) who is not authorized access to the classified information, knowing that the person is not authorized access to such classified information, shall be fined under this title, imprisoned not more than 3 years, or both.

 

    An exception applied, which allowed disclosure of this information to a federal judge, member of Congress, or congressional committee. This bill would have become Section 798A of Title 18 of the U.S. Code. What is somewhat confusing is that the new Section 798A would have come right after the existing Section 798, which appears to deal with much of the same material. The current Section 798 of Title 18 states:

Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information --

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

(3) concerning the communication intelligence activities of the United States or any foreign government; or

(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes --

Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

 

    The new Section 798A would have contained small but important differences from the current Section 798, which already cuts a broad path in terms of prohibited disclosures. The new Section 798A would only criminalize the disclosure of classified information whereas the current Section 798 criminalizes disclosure and use. The new Section 798A would have imposed no potential criminal sanctions on the press; it simply would have cut off an avenue to classified information by specifically prohibiting its release (even though another statute -- the current Section 798 -- prohibits the release of much of the same information already). Section 798A would also cover a broader range of classified information than the current Section 798, which only applies to communications about cryptographic information or communication-related intelligence activities.

    The new Section 798A would have applied to all classified information, thus cutting off access to a large portion of such information (if that access truly existed in the first place). Furthermore, the new Section 798A would not require that the disclosure be prejudicial to the national security of the United States or for the benefit of any foreign government, as required by the current Section 798. This would also increase the Act’s reach in terms of the disclosures that may be punished.

    In addition to the existing Section 798, there are numerous other laws that already protect against unauthorized disclosure of classified information. These include 18 U.S.C. Sec. 793, which prohibits the disclosure of information that would injure the national defense; 18 U.S.C. Sec. 794, prohibiting disclosure of information that aids foreign governments to the detriment of the United States; and 15 U.S.C. Sec. 421, prohibiting the disclosure of information on covert agents.

    S. 2507 was referred to the Senate Select Committee on Intelligence, which reported the measure on May 4, 2000. It was passed by the Senate on Oct. 2, 2000. The House version of the Fiscal Year 2000 Intelligence Authorization Act did not contain a similar provision affecting the distribution of classified information. On Oct. 10, 2000, a conference committee resolved the differences in these bills to include Section 303 (renumbered as Section 304) in the final version. This was approved by both chambers on Oct. 12, 2000. The measure was sent to the president in the form of the House version of the Intelligence Authorization Act, H.R. 4392. President Clinton vetoed the bill on Nov. 4, 2000.