Congressional Record: October 3, 2000 (Senate)
Page S9684-S9685



                              Section 303

  Mr. BIDEN. Mr. President, section 303 of S. 2507, the Intelligence 
Authorization bill, as amended by the managers' amendment, establishes 
a new criminal offense for the unauthorized disclosure of properly 
classified information. Existing criminal statues generally require an 
intent to benefit a foreign power or are limited to disclosures of only 
some types of classified information. Administrative sanctions have 
constituted the penalty for most other leaks.
  While I support the basic objective of this provision, we must ensure 
that it will not be used in a capricious manner or in a manner that 
harms our democratic institutions.
  I see two respects in which some caution is merited. First, it could 
be applied to trivial cases. I believe that former Secretary of Defense 
Caspar Weinberger once said that he told everything to his wife. If his 
discussions with his wife included classified information, he surely 
would have violated the letter of this bill. But so-called ``pillow 
talk'' to one's spouse is common, and I don't think we mean to throw 
people in jail for incidental talk to a person who has no intent either 
to use the classified information, to pass it on to others, or to 
publish it.
  Mr. SHELBY. The Senator from Delaware is correct. The Committee 
expects that the Justice Department will use its prosecutorial 
discretion wisely. In some cases, administrative remedies are clearly 
more appropriate. In each case however--as under all criminal laws--
prosecutors will need to judge whether criminal charges are warranted.
  Mr. BIDEN. My second concern is that section 303 not be used as a 
justification for investigations of journalists. Our republic depends 
upon a free press to inform the American people of significant issues, 
including issues relating to foreign policy and the national security. 
If a leak statute were to become a back door for bringing the 
investigate apparatus of the federal government to bear on the press, 
we would be sacrificing our democratic institutions for the sake of 
protecting a few secrets. Much as we are dedicated to the protection of 
classified information, that would be a terribly bad bargain.
  Mr. SHELBY. I agree with the Senator from Delaware 100 percent, and I 
can assure this body that in passing section 303, no member of the 
Select Committee on Intelligence intended that it be used as an excuse 
for investigating the press. That is why the scope of this provision is 
limited to persons who disclose, or attempt to disclose, classified 
information acquired

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as a result of authorized access to such information. Such persons have 
a duty to protect classified information has no right to disclose that 
particular information to persons not authorized to receive it, 
persons, even if he or she should later become a journalist. By the 
same token, however, the statute is not intended to lead to 
investigation or prosecution of journalists who previously had 
authorized access to classified information and later, in their 
capacity as journalist, receive leaked information.