10/10/00
By SEAN REILLY
Washington Bureau

WASHINGTON - Despite vehement objections from civil libertarians and press organizations, Congress appears poised to approve legislation by Alabama Sen. Richard Shelby that would make disclosure of classified information a felony punishable by up to three years in prison.

The language is part of the Senate's fiscal 2001 Intelligence Authorization bill; the measure is set to come up for discussion tonight by a joint congressional committee charged with crafting a final version of the bill.

"It will be an uphill battle," said Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists, on Friday. While unwilling to concede defeat, Aftergood said the measure "is being rammed through" without public hearings.

As chairman of the Senate Intelligence Committee, Shelby, R-Tuscaloosa, added the provision earlier this year after top intelligence officials complained of a flood of leaks to the media. Opponents say it would have a chilling effect on whistle-blowers and harm legitimate news-gathering efforts.

In a prepared response, Shelby dismissed concerns about the measure's constitutionality as "a red herring for those whose agenda is open access to all our nation's secrets."

"Often when classified information is disclosed it isn't readily apparent that any damage has been done," Shelby said. "But the damage is real and often severe."

Citing secrecy restrictions, neither Shelby's office nor CIA spokeswoman Anya Guilsher would discuss specific examples of such harm. But Guilsher said unauthorized release of information could endanger foreign sources when that information is privy to a limited circle of individuals. Such releases could also make foreign governments less willing to share intelligence with the United States, she said.

Under Shelby's proposal, any current or former government official who "knowingly and willingly" disclosed classified information would face as much as three years in prison and a $10,000 fine. The measure exempts members of Congress and federal judges.

The proposal has bipartisan backing, Shelby said in his statement. While Attorney General Janet Reno had earlier voiced concerns that the legislation went overboard, a revised measure incorporates all of the Justice Department's proposed changes, Shelby said.

A Justice Department spokeswoman could not be reached for comment late Friday afternoon. Because of the Columbus Day holiday, federal offices were closed Monday.

Guilsher declined to say whether the CIA supports the change, but in testimony before Shelby's committee in early 1998, CIA director George Tenet complained that the executive branch "leaks like a sieve."

"There are people all over this executive branch who have violated a trust," he said, according to an Associated Press account. Tenet added, however that he'd settle for firing and humiliating leakers. Critics add that bureaucrats stamp too much material as secret, including information important to public debate.

In fiscal 1999, for example, the federal government created 8,038,592 new secrets, an increase of 10 percent over the year before, according to official government figures.

Under Shelby's proposal, disclosure of any one of those would be a felony, Aftergood said. Even total taxpayer spending on intelligence activities is once again secret, he said, although Congress had made that amount public in 1997 and 1998.

In a July letter to senators, nine news organizations wrote that existing law already bars release of classified information affecting individuals' safety, national security or national defense.

Under the proposal, government employees would be subject to criminal penalties "even when they provide information that may shed important light on inappropriate or unlawful government activities," the letter states.

And although news organizations would not be subject to prosecution for divulging classified information, reporters could be ordered to disclose their sources in the course of an investigation into leaks or face the possibility of jail time, it added.

"Such a scheme would trample on the basic principles of the First Amendment," the letter stated.

In his statement, Shelby said it was "absurd" to assert that leaking offers a legitimate means of overseeing intelligence activities. Six congressional committees and several executive branch boards keep watch over the intelligence community, he concluded.

"It is not a perfect system, but it works and it often works quite well."