[Congressional Record (Bound Edition), Volume 146 (2000), Part 14]
[Senate]
[Pages 20425-20426]
[From the U.S. Government Publishing Office, www.gpo.gov]



                    INTELLIGENCE AUTHORIZATION BILL


                              Section 303

  Mr. BIDEN. Mr. President, section 303 of S. 2507, the Intelligence 
Authorization bill, as amended by the managers' amendment, establishes 
a new criminal offense for the unauthorized disclosure of properly 
classified information. Existing criminal statues generally require an 
intent to benefit a foreign power or are limited to disclosures of only 
some types of classified information. Administrative sanctions have 
constituted the penalty for most other leaks.
  While I support the basic objective of this provision, we must ensure 
that it will not be used in a capricious manner or in a manner that 
harms our democratic institutions.
  I see two respects in which some caution is merited. First, it could 
be applied to trivial cases. I believe that former Secretary of Defense 
Caspar Weinberger once said that he told everything to his wife. If his 
discussions with his wife included classified information, he surely 
would have violated the letter of this bill. But so-called ``pillow 
talk'' to one's spouse is common, and I don't think we mean to throw 
people in jail for incidental talk

[[Page 20426]]

to a person who has no intent either to use the classified information, 
to pass it on to others, or to publish it.
  Mr. SHELBY. The Senator from Delaware is correct. The Committee 
expects that the Justice Department will use its prosecutorial 
discretion wisely. In some cases, administrative remedies are clearly 
more appropriate. In each case however--as under all criminal laws--
prosecutors will need to judge whether criminal charges are warranted.
  Mr. BIDEN. My second concern is that section 303 not be used as a 
justification for investigations of journalists. Our republic depends 
upon a free press to inform the American people of significant issues, 
including issues relating to foreign policy and the national security. 
If a leak statute were to become a back door for bringing the 
investigate apparatus of the federal government to bear on the press, 
we would be sacrificing our democratic institutions for the sake of 
protecting a few secrets. Much as we are dedicated to the protection of 
classified information, that would be a terribly bad bargain.
  Mr. SHELBY. I agree with the Senator from Delaware 100 percent, and I 
can assure this body that in passing section 303, no member of the 
Select Committee on Intelligence intended that it be used as an excuse 
for investigating the press. That is why the scope of this provision is 
limited to persons who disclose, or attempt to disclose, classified 
information acquired as a result of authorized access to such 
information. Such persons have a duty to protect classified information 
has no right to disclose that particular information to persons not 
authorized to receive it, persons, even if he or she should later 
become a journalist. By the same token, however, the statute is not 
intended to lead to investigation or prosecution of journalists who 
previously had authorized access to classified information and later, 
in their capacity as journalist, receive leaked information.


                              section 305

  Mr. BIDEN. Section 305 of S. 2507, the Intelligence Authorization 
bill, provides, in brief, that no future ``Federal law . . . that 
implements a treaty or other international agreement shall be construed 
as making unlawful an otherwise lawful and authorized intelligence 
activity of the United States Government . . . unless such Federal law 
specifically addresses such intelligence activity.'' This provision is 
necessary, the Committee report explains, because ``[t]here has been a 
concern that future legislation implementing international agreements 
could be interpreted, absent the enactment of section 305, as 
restricting intelligence activities that are otherwise entirely 
consistent with U.S. law and policy.'' The concern arises from an 
opinion issued in 1994 by the Office of Legal Counsel (OLC) of the 
Department of Justice. In that opinion, the Office interpreted the 
Aircraft Sabotage Act of 1984--a law implementing an international 
treaty on civil aviation safety--as applying to government personnel. 
Although the OLC opinion emphasized that its conclusions should ``not 
be exaggerated'' and also warned that its opinion ``should not be 
understood to mean that other domestic criminal statutes apply to 
U[nited S[tates] G[overnment] personnel acting officially,'' the 
Central Intelligence Agency, out of an abundance of caution, wants to 
avoid cases in which legislation implementing a treaty might 
criminalize an authorized intelligence activity even though Congress 
did not so expressly provide. I understand the Agency's concern that 
clarity for its agents is important. At the same time, however, we 
should take care to specify how section 305 is intended to work.
  One question is this: how do we tell when a Federal law actually 
``implements a treaty or other international agreement?'' My working 
assumption, in supporting section 305, is that we will be able to tell 
whether a future law ``implements a treaty or other international 
agreement'' by reading the law and the committee reports that accompany 
its passage. If the text of that future law or of the committee reports 
accompanying that bill states that the statute is intended to implement 
a treaty or other international agreement, then section 305 is 
pertinent to that statute. If there is no mention of such intent in 
that future law or in its accompanying reports, however, then we may 
safely infer that section 305 does not apply. Is that the understanding 
of the Select Committee on Intelligence, as well?
  Mr. SHELBY. That is certainly our intent. If a future law is to 
qualify under section 305 of this bill, we would expect its status as 
implementing legislation to be stated in the law, or some other 
contemporaneous legislative history.
  Mr. BIDEN. another question is how to tell that a U.S. intelligence 
activity ``is authorized by an appropriate official of the United 
States Government, acting within the scope of the official duties of 
that official and in compliance with Federal law and any applicable 
Presidential directive.'' I am concerned that this could be 
misinterpreted to mean that some intelligence bureaucrat could 
authorize some otherwise illegal activity with a wink and a nod. It is 
not the intent of the Select Committee on Intelligence that there be 
written authorization for a U.S. intelligence activity?
  Mr. SHELBY. I understand the concerns of the Senator from Delaware. 
We expect that in almost all cases intelligence operations exempted 
from future treaty-implementing legislation will have been authorized 
in writing. I would note however, that many individual actions might be 
authorized through general written policies, rather than case-specific 
authorizations.
  Neither would I rule oral authorization in exigent circumstances. The 
Committee believes that intelligence agencies would be well advised to 
make written records of such authorizations, so as to guard against lax 
management or later assertions that unrecorded authorization was given 
for a person's otherwise unlawful actions. Such written records will 
also protect the government employees from allegations that their 
actions were not authorized.
  Mr. BIDEN. My final question to the chairman of the Select Committee 
on Intelligence relates to how other countries may view section 305. I 
interpret section 305 as governing only the interpretation of a certain 
set of U.S. criminal laws enacted in the future and whether those laws 
apply to government officials. Is that also the understanding of the 
chairman of the Select Committee on Intelligence?
  Mr. SHELBY. Yes, it is. Section 305 deals solely with the application 
of U.S. law to U.S. Intelligence activities. It does not address the 
question of the lawfulness of such activities under the laws of foreign 
countries, and it is in no respect meant to suggest that a person 
violating the laws of the United States may claim the purported 
authorization of a foreign government to carry out those activities as 
justification or as a defense in a prosecution for violation of U.S. 
laws.
  Mr. BIDEN. I thank the distinguished chairman.

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