Message on Returning Without Approval to the House of Representatives the "Intelligence Authorization Act for Fiscal Year 2001"

Weekly Compilation of Presidential Documents, Nov 13, 2000 by Bill Clinton

November 4, 2000

To the House of Representatives:

Today, I am disapproving H.R. 4392, the "Intelligence Authorization Act for Fiscal Year 2001," because of one badly flawed provision that would have made a felony of unauthorized disclosures of classified information. Although well intentioned, that provision is overbroad and may unnecessarily chill legitimate activities that are at the heart of a democracy.

I agree that unauthorized disclosures can be extraordinarily harmful to United States national security interests and that far too many such disclosures occur. I have been particularly concerned about their potential effects on the sometimes irreplaceable intelligence sources and methods on which we rely to acquire accurate and timely information I need in order to make the most appropriate decisions on matters of national security. Unauthorized disclosures damage our intelligence relationships abroad, compromise intelligence gathering, jeopardize lives, and increase the threat of terrorism. As Justice Stewart stated in the Pentagon Papers case, "it is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy. Other nations can hardly deal with this Nation in an atmosphere of mutual trust unless they can be assured that their confidences will be kept . . . and the development of considered and intelligent in ternational policies would be impossible if those charged with their formulation could not communicate with each other freely." Those who disclose classified information inappropriately thus commit a gross breach of the public trust and may recklessly put our national security at risk. To the extent that existing sanctions have proven insufficient to address and deter unauthorized disclosures, they should be strengthened. What is in dispute is not the gravity of the problem, but the best way to respond to it.

In addressing this issue, we must never forget that the free flow of information is essential to a democratic society. Justice Stewart also wrote in the Pentagon Papers case that "the only effective restraint upon executive policy in the areas of national defense and international affairs may lie in an enlightened citizenry--in an informed and critical public opinion which alone can here protect the values of democratic government."

Justice Brandeis reminded us that "those who won our independence believed...that public discussion is a political duty; and that this should be a fundamental principle of the American government." His words caution that we must always tread carefully when considering measures that may limit public Discussion--even when those measures are intended to achieve laudable, indeed necessary, goals.

As President, therefore, it is my obligation to protect not only our Government's vital information from improper disclosure, but also to protect the rights of citizens to receive the information necessary for democracy to work. Furthering these two goals requires a careful balancing, which must be assessed in light of our system of classifying information over a range of categories. This legislation does not achieve the proper balance. For example, there is a serious risk that this legislation would tend to have a chilling effect on those who engage in legitimate activities. A desire to avoid the risk that their good faith choice of words--their exercise of judgment--could become the subject of a criminal referral for prosecution might discourage Government officials from engaging even in appropriate public discussion, press briefings, or other legitimate official activities. Similarly, the legislation may unduly restrain the ability of former Government officials to teach, write, or engage in any activity aimed at building public understanding of complex issues.

Incurring such risks is unnecessary and inappropriate in a society built on freedom of expression and the consent of the governed and is particularly inadvisable in a context in which the range of classified materials is so extensive. In such circumstances, this criminal provision would, in my view, create an undue chilling effect.

The problem is compounded because this provision was passed without benefit of public hearings--a particular concern given that it is the public that this law seeks ultimately to protect. The Administration shares the process burden since its deliberations lacked the thoroughness this provision warranted, which in turn led to a failure to apprise the Congress of the concerns I am expressing today.

I deeply appreciate the sincere efforts of Members of Congress to address the problem of unauthorized disclosures and I fully share their commitment. When the Congress returns, I encourage it to send me this bill with this provision deleted and I encourage the Congress as soon as possible to pursue a more narrowly drawn provision tested in public hearings so that those they represent can also be heard on this important issue.