[govinfo] Sign On Letter Opposing Kyl Amendment to espionage statutes

  • From: "Patrice McDermott" <pmcdermott@xxxxxxxxxxxxxxxxxxxxx>
  • To: "FOI-L@xxxxxxxxxxxxxxxx" <FOI-L@xxxxxxxxxxxxxxxx>, "govinfo@xxxxxxxxxxxxx" <govinfo@xxxxxxxxxxxxx>
  • Date: Fri, 23 Feb 2007 12:58:01 -0500

Below is a letter opposing a proposed amendment to the espionage statutes 
sponsored by Senator Kyl.  It would criminalize dissemination of broad swathes 
of information concerning counterterrorism programs in the United States.  
There have been no hearings or debates on this dangerous proposal.

I hope your organizations will be interested in signing on to this letter.  Let 
me know  pmcdermott@xxxxxxxxxxxxxxxxxxxxx by 5pm EST Tuesday February 27.  The 
letter will be transmitted to key members of the Senate Judiciary Committee 
mid-week next week. The Committee will consider the amendment on Thursday.


The proposed amendment would change 18 U.S.C. Sec. 798(a) to read as follows:

TITLE 18 > PART I > CHAPTER 37 > § 798
§ 798. Disclosure of classified information
 (a) 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 or
(5) concerning efforts by the United States to identify, investigate, or 
prevent terrorist activity" and
shall be fined under this title or imprisoned not more than twenty years, or 

This is it for today - I hope!

Patrice McDermott, Executive Director
202-332-OPEN (6736)

Dear Senator...:
            We, the undersigned organizations, are writing to oppose a proposed 
amendment to S. 236 offered by Sen. Kyl that would unconstitutionally and 
unnecessarily expand existing espionage statutes.

            The amendment offered by Senator Kyl to S. 236 would amend Section 
798(a) of Title 18 of the U.S. Code (18 U.S.C. § 798(a)), which criminalizes 
disclosure of communications intelligence collection and processing methods.  
The amendment would broaden that section to criminalize the disclosure to the 
public of any classified information "concerning efforts by the United States 
to identify, investigate, or prevent terrorist activity."  The proposed 
amendment is unnecessary, serves no legitimate purpose and in our opinion would 
be unconstitutionally overbroad.

            Unlike the highly sensitive communications intelligence methods 
already covered by section 798, the proposal would criminalize the disclosure 
of information that could be classified simply at the discretion of government 
bureaucrats, including the possibility of wrongdoing or illegality on the part 
of the government.  Such discretion has repeatedly been used to classify 
information crucial to the free discussion of governmental affairs that is at 
the core of the First Amendment.  Indeed much of the information that would be 
covered by this amendment is regularly disclosed by the government itself in 
the course of criminal proceedings or press conferences called by the Attorney 
General.  The proposal thus seeks to stifle, with the threat of criminal 
prosecution, informed public debate about the most serious matters of the 
effectiveness of government counterterrorism efforts.

            Section 798(a) already covers dissemination of specifically 
identified intelligence sources and methods; it is a targeted provision that 
seeks to deter the disclosure of communications intelligence methods, which are 
seen as more serious than disclosures of other classified information.  There 
is no justification for broadening the reach of that section.  Indeed, the 
purpose and effect of this proposed amendment appears to be to chill the press 
and other members of the public who receive and share information "concerning 
efforts by the United States to identify, investigate, or prevent terrorist 
activity."  The Justice Department itself has concluded that no new legal 
authorities are necessary to protect against disclosures of such information.  
("I conclude that current statutes provide a legal basis to prosecute those who 
engage in unauthorized disclosures, if they can be identified." ("Report to 
Congress on Unauthorized Disclosures," Attorney General John D. Ashcroft, U.S. 
Department of Justice, October 15, 2002."). Thus the amendment is unnecessary 
to protect classified information.

            The Judiciary Committee has held no hearings or debate on the 
practical or constitutional implications of this amendment.  We strongly urge 
you to reject the proposed amendment.

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