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Project on Government Oversight

Surveillance Bill Would Criminalize Whistleblowing: Groups Urge Language Change

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September 27, 2006

Senate Majority Leader William Frist
509 Hart Senate Office Building
Washington, DC 20510

Senate Minority Leader Harry Reid
528 Hart Senate Office Building
Washington, DC 20510

Dear Senator Frist and Senator Reid:

We are writing to express our concern about a provision in S. 3931 which would amend § 1809 of the Foreign Intelligence Surveillance Act concerning criminal sanctions. That provision would impose criminal sanctions up to five years in prison and $100,000 for anyone who:

"knowingly discloses or uses information obtained under color of law by electronic surveillance in a manner or for a purpose not authorized by law"

It appears that the motivations behind this language may be aimed at preventing information obtained from electronic surveillance from being abused. However, we are deeply concerned that the language could be used to criminally prosecute government employees who would "blow the whistle."

Specifically, we can envision a scenario where an intelligence employee could be prosecuted under this provision for disclosing classified information to the Congress about illegal or unethical activities in the Executive Branch. The Justice Department maintains a position that disclosures of classified information to the Congress are illegal, stating that: "We believe that it would be antithetical to the existing system for an agency to permit individual employees to decide unilaterally to disclose classified information to a Member of Congress."1

Nevertheless, the Congress will be unable to adequately perform its duty to oversee the Executive Branch if it can not receive classified information, particularly in cases where illegal activities are occurring. By allowing the Justice Department to prosecute intelligence whistleblowers, the Congress will effectively be sending whistleblowers to the national news media to raise their concerns rather than addressing them through the Congress.

Please create an exception to the non-disclosure rule to permit disclosure to Congress of the information necessary for Congress to conduct its essential oversight of intelligence surveillance, and disclosure to law enforcement agencies the information necessary to investigate the inappropriate electronic surveillance. Without this exemption, S. 3931 as written will almost certainly have a chilling effect on the ability of whistleblowers to assist the Congress in rooting out corruption and abuse of power.

Sincerely,

Carolyn Frederickson, Director
Washington Legislative Office
American Civil Liberties Union

Andrew D. Jackson, Director
The American Whistleblowers' League

Chellie Pingree, President and CEO
Common Cause

Zena Crenshaw, Coordinator
Focus on Indiana

Tom Devine, Legal Director
Government Accountability Project

Michael Ostrolenk, National Director
Liberty Coalition

Rodney Logal, Director
National Judicial Conduct and Disability Law Project, Inc.

Stephen M. Kohn, President
National Whistleblower Center

Danielle Brian, Executive Director
Project On Government Oversight

Jeff Ruch, Executive Director
Public Employees for Environmental Responsibility

Dr. LeRoy Gillam, National President
Southeastern Christian Association

Eddie Moore, Coordinator
We Speak Up Campaign


1. See "Access to Classified Information: Justice Department Office of Legal Counsel Opinion" on matters raised by the Richard Nuccio case, November 26, 1996 . Posted by the Federation of American Scientists: http://www.fas.org/sgp/othergov/olc_nuccio.html.