Bad law often is born of bad intentions. Last year, after last-minute arm-twisting, President Clinton vetoed a bill that would have made criminal the disclosure of all classified information.
The "anti-leaks" bill, as it was called, was clearly aimed at smoothing the messy affair of running the nation. A public-relations person's dream, it would choke off dissent where dissent usually begins: the unhappy, the mistreated, the abused government employee, or the official who knows too much. Those pesky leakers, one presumes, would be replaced by chipper spokespeople. And candor, one presumes, would be replaced by subterfuge.
Upon vetoing the bill, Mr. Clinton said it was "well intentioned" but over-broad and so might "unnecessarily chill legitimate activities that are at the heart of a democracy."
Sen. Richard Shelby (R) of Alabama, emboldened by a new president holding the signatory pen, has changed not one word of last year's bill. It would sanction the criminal prosecution of any government official who violates the law's provisions through disclosure of classified information to anyone, for any reason, no matter how compelling.
Senator Shelby would have us believe that leaks are inherently evil, a dangerous distraction to those entrusted with the governance of the nation. Nothing could be further from the truth. Leaks often involve conscience-stricken officials speaking out, sometimes at great personal risk, about conditions that other parts of government refuse to act on. The leak is the court of last resort for the unheard whistleblower.
Think of it this way: A leak always represents the disclosure of information that someone in government desperately wishes to keep a secret. Doesn't that say something to us about the danger of punishing all leaks, regardless of context?
Indeed, without leaks, Americans would probably never have known about the Pentagon Papers, human radiation experiments, US involvement in human-rights abuses in Latin America, or the My Lai massacre. Americans would have been blissfully ignorant of the status of arms-control negotiations between the US and Russia in 1996, or the evidence demonstrating that, contrary to public comments that it was neutral, the Nixon administration was pro-Pakistan in the 1971 war between India and Pakistan.
Although journalists, historians, and other researchers could not be prosecuted for receiving or publishing secrets, the anti-leaks proposal would make them, in essence, accessories to a felony. If a reporter speaks with a source compelled by conscience to provide classified information, the journalist would instantly be subject to interrogation. Reporters thus would be compelled to reveal their sources or face indefinite jail sentences.
Apparently designed to chill speech, the proposal includes punishments of up to three years in jail and a $10,000 fine for any active or retired government employee willfully disclosing classified information.
Under current law, a felony prosecution can result only when the disclosure relates to national security. In addition, the individual who released the classified material must have done so believing it would be used to injure the United States. The proposed new law would not require the "intent to injure" provision in order to bring about a successful prosecution.
The proposed provision subjects government employees to criminal penalties for the release of any classified information, no matter what their intent, even when they provide information that may shed important light on inappropriate or unlawful governmental activities.
Finally, little doubt exists that this provision will encourage the over-classification of information and a Draconian interpretation of existing classification regulations. By labeling information as classified or interpreting it as such, the agency involved could obtain substantial leverage over even the best-motivated and most publicly minded of its employees - even when information should be released.
Perhaps Congress knows this is a bad idea. Last year, the anti-leaks bill was passed by voice vote after not a single minute of public hearings. Let's hope Senator Shelby isn't so fortunate this time, for in an honest debate, the anti-leaks bill will surely be revealed as the cynical, oppressive tool it might become.
Charles N. Davis is executive director of the Freedom of Information Center at the Missouri School of Journalism.