U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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89–011 2000

106th Congress, 2d Session – – – – – – – – – – – – House Document 106–309

VETO MESSAGE ON H.R. 4392

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

HIS VETO OF H.R. 4392, THE INTELLIGENCE AUTHORIZATION ACT

FOR FISCAL YEAR 2001

NOVEMBER 13, 2000.—Message and accompanying papers referred to the

Committee on Intelligence (Permanent Select) and ordered to be printed

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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 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 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

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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.

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.

WILLIAM J. CLINTON.

THE WHITE HOUSE, November 4, 2000.

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