By Walter Pincus
Washington Post Staff Writer
Friday, November 3, 2000; Page A31

Top Clinton aides failed to reach agreement yesterday on a controversial measure that makes it easier to prosecute government officials for leaking classified information, leaving it up to the president to weigh differing recommendations on whether he should sign or veto the legislation.

President Clinton, who is in California campaigning for Democrats, is nonetheless expected to make his decision today on the measure, which is part of the fiscal 2001 intelligence authorization bill. The anti-leak measure has drawn criticism in recent days from major media executives and organizations as well as Republicans and Democrats in Congress.

The anti-leak provision would make it a felony, punishable by a fine and up to three years in prison, for an active or retired government official or employee to willfully disclose "classified information" knowing that the person receiving it was not authorized to have it.

"Everyone understands that leaking is a problem, but there was skepticism voiced that the language may be overly broad," a senior administration official said yesterday after the White House meeting.

Participating in that session were Attorney General Janet Reno, Deputy Secretary of State Strobe Talbott, Deputy Defense Secretary Rudy DeLeon, CIA Director George J. Tenet, national security adviser Samuel R. "Sandy" Berger and White House Chief of Staff John D. Podesta.

Following normal procedure in such situations, options are prepared for Clinton, including Justice Department guidelines for how the measure would be implemented in the event the bill is signed.

Reno defended the measure yesterday at a session with reporters, saying it was needed to fill a gap in the law. She added, however, that "it is not going to result in many new prosecutions" because it has always been difficult to find the leakers.

One awkward problem for those who now oppose the measure, said to include Podesta and Berger, is the administration's previous approval of the measure before it passed Congress. "Normally we don't veto bills that we have cleared," one senior White House official said yesterday.

Under current law, the government must show that the person who revealed the classified information knew or had reason to believe the unauthorized disclosure could "damage" national security. The law also describes classified information as being "connected with national defense" or specific security areas such as names of CIA officers and agents, codes and communications intelligence.

Proponents of the new legislation say the need to prove damage to the national defense has hampered prosecution of leaks of such information as covert intelligence activities or secret diplomatic plans that don't directly involve military operations or equipment.

In their report on the measure, the House-Senate conferees highlighted the basic change saying, "The government should not be required to prove that damage to the national security actually has or will result from the unauthorized disclosure." Having to prove such damage, the conferees said, has created a burden that often requires the government "to disclose unnecessarily additional classified information."

Instead, the legislation requires the government to prove that the information had been properly classified.

Critics of the new provision say it not only relieves the necessity of having to show damage to national security, but it also gives the administration the authority to vastly increase what may be considered classified.

The measure "turns over to the executive branch the right to determine what will be protected," said Steven Aftergood, a security specialist with the Federation of American Scientists. Under the proposed language, Aftergood said, "a defendant cannot question nor a judge review, whether the material should or should not be classified. All you can look at is whether the stated procedure to classify it has been followed."

The House-Senate managers noted, however, that there is a prohibition against using classification "in order to conceal violations of law, inefficiency, or administrative error or to prevent embarrassment to the government."

Confusion on what the bill actually means was highlighted by Rep. Nancy Pelosi (D-Calif.), who during floor debate last month questioned whether its provisions would apply to members of Congress and their staffs. According to a 1970 Supreme Court decision, the "officers and employees" referred to in the measure would not include senators or representatives, but it would cover their staffs. Yesterday, a Justice Department official told reporters that lawmakers would be covered.