LETTER TO JACOB J. LEW FROM RE INTELLIGENCE AUTHORIZATION ACT FOR FY 2001

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 06230315
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 6
• Document Creation Date: December 28, 2022
• Document Release Date: June 26, 2018
• Case Number: F-2008-01274
• Publication Date: October 31, 2000

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Central Intelligence Agency
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Washington. D.C. 20505 .
OCA 2000-1473
31 October 2000
The Honorable Jacob J. Lew
Director
Office of Management and Budget
Washington, DC 20503
re Intelligence Authorization Act for FY 2001
Dear Mr. Lew:
The Central Intelligence Agency (CIA) submits the
following comments for the President's consideration on the
above-referenced bill. CIA supports this bill and
recommends that the President sign it.
CIA concurs with the Department of Justice's comments
on Section 304 ("Leaks") of the enrolled bill. We believe
that the law as drafted is narrowly tailored to close an
eXisting statutory gap ,and that recent press accounts and
concerns expressed by members of Congress misunderstand the
intent and scope of this provision. Therefore we join with
DoJ and recommend that the President issue his signing
statement incorporating DoJ's language, forwarded to you
separately.
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Statement by the President: Veto of the "Intelligence Authorization Act for Fiscal Year 2001"
(11/4/00)
THE WHITE HOUSE
.Office of the Press Secretary
(Chappaqua, New York)
For Immediate Release
November 4, 2000
STATEMENT BY THE PRESIDENT
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 inten-tioned, 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 intel-ligence 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 international 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 dis-closures, 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 Prei.sident, therefore, it is my obligation to protect not only our
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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 legis-lation 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 delibera-tions 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.
Since the adjournment of the Congress has prevented my return of H.R.
4392 within the meaning of Article I, section 7, clause 2 of the
Constitution, my withholding of approval from the bill precludes its
becoming law. The Pocket Veto Case, 279 U.S. 655 (1929). In addition to
withholding my signature and thereby invoking my constitutional power to
"pocket veto" bills during an adjournment of the Congress, to avoid
litigation, I am also sending H.R. 4392 to the House of Representatives
with my objections, to leave no possible doubt that I have vetoed the
measure.
THE WHITE HOUSE,
November 4, 2000.
WILLIAM J. CLINTON
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1 maximizes the procurement of products properly designated
2 as having been made in the United States.
3 SEC. 304. PROHIBITION ON UNAUTHORIZED DISCLOSURE
4 OF CLASSIFIED INFORMATION.
5 (a) IN GENERAL.�Chapter 37 of title 18, United
6 States Code, is amended-
7 (1) by redesign ating section 798A as section
8 798B; and
9 (2) by inserting after section 798 the following
10 new section 798A:
11 "� 798A. Unauthorized disclosure of classified infor-
12 mation
13 "(a) PROHIBITION.�Whoever, being an officer or em-
14 ployee of the United States, a former or retired officer or
15 employee of the United States, any other person with au-
16 thorized access to classified information, or any other per-
17 son formerly with authorized access to classified informa-
18 tion, knowingly and willfully discloses, or attempts to d-
19 close, close, any classified information acquired as a result of such
20 person's authorized access to classified information to a per-
21 son (other than an officer or employee of the United States)
22 who is .not authorized access to such classified information,
23 knowing that the person is not authorized access to such
24 classified information, shall be fined under this title, im-
25 prisoned not more than 3 years, or both.
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1 "(b) CONSTRUCTION OF PROHIBITION.�Nothing in
2 this section shall be construed to establish criminal liability
3 for disclosure of classified information in accordance with
4 applicable law to the following:
5 "(1) Any justice or judge of a court of the United
6 States established pursuant to article III of the Con-
7 stitution of the United States.
8 "(2) The Senate or House of Representatives, or
9 any committee or subcommittee thereof, or joint corn-
10 mittee thereof or any Member of Congress.
11 "(3) A person or persons acting on behalf of a
12 foreign power (including an international organiza-
13 tion) if the disclosure-
14 "(A) is made by an officer or employee of
15 the United States who has been authorized to
16 make the disclosure; and
17 "(B) is within the scope of such officer's or
18 employee's duties.
19 "(4) Any other person authorized to receive the
20 classified information.
21 "(c) DEFINITIONS.�In this section:
22 "(1) The term 'authorized', in the case of access
23 to classified information, means having authority or
24 permission to have access to the classified information
25 pursuant to the provisions of a statute, Executive
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1 order, regulation, or directive of the head of any de-
2 partment or agency who is empowered to classify in-
3 formation, an order of any United States court, or a
4 provision of any Resolution of the Senate or Rule of
5 the House of Representatives which governs release of
6 classified information by such House of Congress.
7 "(2) The term 'classified information' means in-
8 formation or material properly classified and clearly
9 marked or represented, or that the person knows or
10 has reason to believe has been properly classified by
11 appropriate authorities, pursuant to the provisions of
12 a statute or Executive order, as requiring protection
13 against unauthorized disclosure for reasons of na-
14 ticmal security.
15 "(3) The term 'officer or employee of the United
16 States' means the following:
17 "(A) An officer or employee (as those terms
18 are defined in sections 2104 and 2105 of title 5).
19 "(B) An officer or enlisted member of the
20 Armed Forces (as those terms are defined in sec-
21 tion 101(b) of title 10).".
22 (b) CLERICAL AMENDMENT.�The table of sections at
23 the beginning of that chapter is amended by striking the
24 item relating to section 798A and inserting the following
25 new items:
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