Peter King (R-NY), chair of the US House Committee on Homeland Security, yesterday reintroduced legislation that would extend the definition of espionage to include publishing the names of sources who collaborate with the US military or intelligence services.
King had proposed similar legislation in 2010. Last week three members of the Senate Committee on Homeland Security, led by chairman Joe Lieberman (I-CT), reintroduced a similar bill, known as
the SHIELD Act. In US congressional parlance, SHIELD appears to mean “Securing human intelligence and enforcing lawful dissemination.”
Many students of the First Amendment have pointed out the dangers to journalism and publishing in the US if the definition of espionage (traditionally understood to involve intentional and interested transmission of information to a foreign power) were to be so broadened. The ACLU argues:
If the Espionage Act were to be applied to publishers, it would have the unconstitutional effect of infringing on the constitutionally protected speech rights of all Americans, and it would have a particularly negative effect on investigative journalism – a necessary and fundamental part of our democracy,” the ACLU said in a statement (.pdf).
Unlike the proposed SHIELD Act, S. 355 does not target publication, but it would expand criminal penalties for unauthorized disclosure to cover all classified information.
The bill would replace the Espionage Act’s use of the term “national defense information” with the broader but more precise term “national security information …
The bill does not provide for a “public interest” defense, i.e. an argument that any damage to national security was outweighed by a benefit to the nation. It does not address the issue of overclassification, nor does it admit the possibility of “good” leaks. Disclosing that the President authorized waterboarding of detainees or that the government conducted unlawful domestic surveillance would be considered legally equivalent to revealing the identities of intelligence sources, the design of secret military technologies or the details of ongoing military operations.
And at a time when an unprecedented number of leak prosecutions are underway, the bill’s premise that an enhanced ability to prosecute leaks is needed seems questionable. In fact, in a 2002 report to Congress, then-Attorney General John Ashcroft said that the laws already on the books were sufficient and that no new anti-leak legislation was required.
Keep it up American Government, and the world revolution will be heading your way next!