The Military Cracks Down on Blogs...

An interesting development in the realm of military control of information. Wired says that "the U.S. Army has ordered soldiers to stop posting to blogs or sending personal e-mail messages, without first clearing the content with a superior officer, Wired News has learned. The directive, issued April 19, is the sharpest restriction on troops' online activities since the start of the Iraq war. And it could mean the end of military blogs, observers say.

Military officials have been wrestling for years with how to handle troops who publish blogs. Officers have weighed the need for wartime discretion against the opportunities for the public to personally connect with some of the most effective advocates for the operations in Afghanistan and Iraq -- the troops themselves. The secret-keepers have generally won the argument, and the once-permissive atmosphere has slowly grown more tightly regulated. Soldier-bloggers have dropped offline as a result.

The new rules (.pdf) obtained by Wired News require a commander be consulted before every blog update.

"This is the final nail in the coffin for combat blogging," said retired paratrooper Matthew Burden, editor of The Blog of War anthology. "No more military bloggers writing about their experiences in the combat zone. This is the best PR the military has -- it's most honest voice out of the war zone. And it's being silenced."

Army Regulation 530--1: Operations Security (OPSEC) (.pdf) restricts more than just blogs, however. Previous editions of the rules asked Army personnel to "consult with their immediate supervisor" before posting a document "that might contain sensitive and/or critical information in a public forum." The new version, in contrast, requires "an OPSEC review prior to publishing" anything -- from "web log (blog) postings" to comments on internet message boards, from resumes to letters home.

Failure to do so, the document adds, could result in a court-martial, or "administrative, disciplinary, contractual, or criminal action."

Despite the absolutist language, the guidelines' author, Major Ray Ceralde, said there is some leeway in enforcement of the rules. "It is not practical to check all communication, especially private communication," he noted in an e-mail. "Some units may require that soldiers register their blog with the unit for identification purposes with occasional spot checks after an initial review. Other units may require a review before every posting."

But with the regulations drawn so tightly, "many commanders will feel like they have no choice but to forbid their soldiers from blogging -- or even using e-mail," said Jeff Nuding, who won the bronze star for his service in Iraq. "If I'm a commander, and think that any slip-up gets me screwed, I'm making it easy: No blogs," added Nuding, writer of the "pro-victory" Dadmanly site. "I think this means the end of my blogging."

OK, now this is COOL!

From the folks at WikiFoia:

One main purpose of the site is to provide an extensive and growing "How To" guide for practical, concrete assistance for regular citizens who are thinking about filing an open records request in any state.

We're also collecting news, resources, legal information, breaking court cases, and more, including a space for considerable information about the open records landscape in each state.

Using a Wiki format allows anyone who drops in to add or edit information. We hope that as it grows, open records advocates in each state will use the easy-to-edit features of a Wiki to create a growing library of information.

Most of us are aware of the basic idea of a Wiki—they allow a group of people with a common interest to collaborate on creating informational content online. Wikipedia is the best known example.

With WikiFoia, people who are interested in using or learning about state sunshine laws can come together to share their wisdom and experiences. Some citizens feel quite intimidated by the open records process and wonder if they should leave it up to reporters and attorneys to do that kind of work.

With WikiFoia we hope to create a fairly informal and collaborative environment that reduces the "FOIA is only for experts" fear.

Also, since open records are constantly under review and revision, we hope that this online community—where anyone can add new information--will become a place well-suited to keeping up with those changes.

Additionally, we are collecting ideas for "internet-based transparency reforms"—an emerging area of citizen activism to encourage school districts, cities and counties to post a significant amount of information online to reduce the need for FOIA requests. (One school district in Illinois is considering a proposal to post every open records request it receives online, along with the requested documents.)

Please take a look at www.WikiFoia.org . Your comments and insights are welcomed. If you maintain an open records website, we'd appreciate it if you would consider adding a link to the WikiFoia. If the WikiFoia doesn't already include a link to your website, please feel free to add your links and any information you'd like to share.

For more information or any questions, please e-mail info@WikiFoia.org .

Thank you!
--

Great News from Washington State!

From the Great State of Washington, home of the 2007 FOI Summit:

Taxpayers may see more government records, and news reporters can protect their sources without being jailed under two bills Gov. Chris Gregoire signed into law.

The measures were among some two dozen that Gregoire signed on April 27.

Under the new sunshine law, a state committee is to examine more than 300 exemptions to the state's public-records act, a voter-approved law that spells out which government documents must be publicly disclosed.

Attorney General Rob McKenna requested the measure, which he said would repair years of damage done by laws and rules that keep government information out of taxpayers' view.

Voters overwhelmingly approved the state's public-records law by initiative in 1972.

The measure called for disclosure of campaign finances, lobbyist activity, financial affairs of elected officers and candidates, and access to public records.

When it passed, there were only 10 exemptions to the public-records section. Since then, hundreds of exemptions have been introduced.

Gregoire also signed a measure that protects journalists from being jailed for refusing to reveal their confidential sources of information.

Of Spies, and Secrets...

From the Times today comes a tale of spies and secrets...

Concerned about the growing dependence of the nation’s spy agencies on private contractors, top intelligence officials have spent months determining just how many contractors work at the C.I.A., D.I.A., F.B.I., N.S.A. and the rest of the spook alphabet soup.

Now they have an answer. But they cannot reveal it, they say, because America’s enemies might be listening.

Ronald P. Sanders, chief human capital officer for the director of national intelligence, said that because personnel numbers and agency budgets were classified, he could not reveal the contractor count.

“I can’t give you anything that would allow you to impute the size of the I.C. civilian work force,” Mr. Sanders said, using shorthand for “intelligence community” in a telephone briefing that covered everything about the contractor survey except its core findings.

Mr. Sanders said the study did find that about 25 percent of the intelligence work now contracted out resulted from personnel ceilings imposed by Congress. But 25 percent of what, he said he could not disclose.

Steven Aftergood of the Project on Government Secrecy at the Federation of American Scientists, said the decision not to reveal the numbers was a sign of dysfunctional policies.

“It reveals how confused the government is about what is really sensitive and what is not,” Mr. Aftergood said. “What would Osama bin Laden do with the fraction of intelligence workers who are contractors? Absolutely nothing.”

Steve is dead on here: we must begin a robust debate in this nation over what is quite properly a secret and what is just secrecy for operational CYA....

From Florida, A Charter School's Woes and E-Mail Records...

Florida Today has a fascinating tale of a charter school's woes, and e-mail sunshine violations? It's a heck of a read....

The Florida Sunshine Law prohibits members of public boards from discussing business outside public meetings -- including through e-mail.

But a review of electronic mail conversations among former leaders of Explorer Elementary and Middle School reveal a handful of possible violations by two board members in the month leading up to the charter's collapse.

"They can argue that they're just exchanging information, but the fact of the matter is it could have been a discussion that citizens would have wanted to take part in or be informed about," said Adria Harper, director of the First Amendment Foundation in Tallahassee.

FLORIDA TODAY requested e-mail records of Explorer's former principal, Ruben Rosario, in hopes of uncovering information about the problems that led to the district takeover last month.

Six weeks' worth turned up a series of exchanges between the school's former board president, Greg Gaddis, and former board secretary Patty Satter-
white. Most of the e-mails discussed administrative items, including preparation and distribution of meeting minutes.

But other e-mails sent separately from Gaddis and Satterwhite to the rest of the board directly addressed and solicited responses to significant issues, including the schools' finances and employment policies, that were scheduled for future board action.

In one e-mail, Gaddis suggested approving a revised audit "outside of our official meeting." In another, Satterwhite referred to two votes the board took through e-mail. Both e-mails appear to violate the state's open-government law...

Give us a hand...unmask a senator!

You know that part in Nacho Libre when Nacho has his mask ripped off....what? You haven't seen Nacho Libre? What's keeping ya?

If you HAD, you would know what the Sunlight Foundation is about to do to some unwitting U.S. Senator....

Yet again an anonymous Senator has placed what is known in the Senate as an "anonymous hold" on legislation that would increase transparency (I know, the irony is killing me...). You may recall this same stunt last year....anyway, this time a secret hold has been placed on a bill, S. 223, that would mandate that Senators file their campaign finance reports electronically. This process would not only make these reports more readily available to the public but would also save money and resources.

Secret holds are in such disrepute that earlier this year the Senate itself banned the practice, although the bill containing that provision has yet to become law. But until secret holds are banished forever, we need your help in exposing the culprit who is blocking consideration of the electronic filing requirement for Senate campaign finance reports.

We need your help to find out who placed this secret hold! Call your Senators and ask them if they are the one with the secret hold on S. 223. Then report back to the Sunlight Foundation's website. They have a list of Senators, organized by state, and their contact info. If a Senator issues a denial they will indicate that next to their name....SO DON'T CALL IF THEY ALREADY ARE ON THE LIST AS NO......

Quote of the Week...

From the Argus Leader in South Dakota comes the quote of the week:

South Dakota's Supreme Court will hear oral arguments April 23 in the dispute over whether an invitation list to a governor's pheasant hunt is a public record.

The court's argument schedule, released Thursday, sets the hunt-list case for 11 a.m. April 23.

Oral arguments generally last 50 minutes, with each side getting 20 minutes to present a case, and the party that brought the appeal getting a final 10 minutes for rebuttal.

The case involves the Argus Leader's attempt to get the invitation list to the 2005 pheasant hunt sponsored by Gov. Mike Rounds. The hunt is a long-standing event billed as a way to showcase South Dakota for business prospects.

Jim Hagen, who headed the state Department of Tourism and State Development when the case started, is named as defendant.

The newspaper says the information should be available to the public, which has a right to know what government is doing. The Argus Leader argued in circuit courts that even though private money paid for the hunt, Hagen's agency - a taxpayer-supported state office - helped arrange and coordinate the event.

The basic concern is unchanged as the arguments go to the Supreme Court, says Randell Beck, executive editor of the Argus Leader.

"The over-arching point to our ongoing efforts to disclose the names of those invited to the pheasant hunt boils down to a very simple concept: Why not?'' Beck said. "In all the legal back and forth over this issue, the state has yet to tell us why the people of South Dakota don't deserve to know. That's because there is no good reason. It's pretty simple.''

The state argues that revealing the list of invitees could give other states a look at South Dakota's business recruitment strategy. Rounds used that argument early in the dispute when asked for the list, saying it would "provide economic development agencies of other states or cities with nothing less than a list of businesses which are willing to relocate or expand if given the proper business climate.''

Circuit Judge Max Gors ruled for the state in April. He noted that state law says records required to be kept by an agency are open to the public, but no law requires the invitation list to be kept.

Taken to its logical conclusion, Gors said, the Argus Leader argument "would require state agencies to maintain every scrap of paper generated by state government and to allow public inspection.''

Well, yeah, Judge Gors, that kinda what this whole sunshine law thingie is all about...

Sanity 1, Secrecy 0

Calmer, more rational heads have prevailed in an access dispute I have been following in Louisville:

From FOI warrior and erstwhile environmental reporter James Bruggers comes the news:

The U.S. Army Corps of Engineers has posted maps on its Web site showing how people who live downstream from the Wolf Creek Dam would be affected by flooding in the event of a breach.

As recently as last month, corps officials refused to make electronic versions of the maps public, citing terrorism fears, after initially saying they would do so.

Corps spokesman Bill Peoples said yesterday that the agency, after a thorough review, decided to make an exception to its policy of not allowing widespread distribution of the maps because the dam is considered a high risk for failure.

"We look at this as a special circumstance," he said. "It's always a balancing act between the security concerns we have as an agency … and what the public needs to know.

"We still have security concerns."

The corps turned down The Courier-Journal's request to obtain electronic versions of the maps in February, citing two exemptions under the Freedom of Information Act....

Now, despite the contention of one source in the story that the media has blown (OK, so his word was "blowed"...) the story out of porportion, wouldn't you generally want to know more, more -- not less -- about a dam upriver from you that is earthen, old and leaky?

CD

FOI at work...

Jim Leusner, an FOI warrior, has just published a piece that uses FOIA to detail NASA's payments to the seven Columbia astronauts. It's an interesting look at NASA policy in the wake of a terrible tragedy....

From the Orlando Sentinel:

NASA paid $26.6 million to the families of seven astronauts who died aboard space shuttle Columbia -- a settlement that has been kept secret for more than 21/2 years.

The space agency recruited former FBI Director William Webster, also a former federal judge, to act as a mediator and adviser in negotiating the out-of-court settlements, according to documents released to the Orlando Sentinel through a federal Freedom of Information Act request.

The newspaper's request yielded just seven pages of documents that leave many questions unanswered, including exactly when the settlements occurred.

In an interview with the Sentinel, Webster, also a former CIA director, said he was bound by confidentiality and couldn't discuss details of the agreements, but defended the process as proper.

"The members of the [survivors'] families wanted this to be a private matter," said Webster, a consulting partner in Washington with the international law firm of Milbank, Tweed, Hadley & McCloy. "They were healing, and they were ready to discuss, properly, their rights. . . . Everyone felt it had a better chance of coming together without seeing their name in lights."

In brief written responses to Sentinel questions Friday, NASA spokesman Allard Beutel said little about the settlements, citing family privacy. He said the money came from the agency's budget via a 2004 congressional appropriation.

"The Columbia astronauts were our friends and co-workers," Beutel wrote. "Our concern always has been with the crew's families and their loss, and as a result NASA didn't announce details of the settlement in an effort to protect the personal privacy of the Columbia families."

Former NASA Administrator Sean O'Keefe and ex-general counsel Paul Pastorek, who helped set up the settlement process, did not return phone calls and e-mails.

Dr. Jon Clark, widower of astronaut Laurel Blair Salton Clark, said NASA was "deferential" in dealing with the families through a turbulent period in their lives.

"We were in a state of shock," he said. "To go the lawsuit route, it's very painful and very protracted. So we settled."

Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, said he understood the families' desire for privacy but criticized NASA for not disclosing the settlements earlier. NASA, he said, is behaving as if the settlement is a source of embarrassment.

"It's not NASA's money. It's public money," he said.

Check Out The Watchdog Column...

My good pal Jennifer LaFleur, a computer-assisted reporting guru and all-around FOI warrior, has launched a citizen watchdog column in the Dallas Mornings News. It has lots of great tips and FOI stories, and is well worth bookmarking. Way to go, Jennifer!

Her latest column, on how Texas citizens can background anybody using public records, is a must read.

So Many Deserving Candidates...

The Bush administration and the Defense Department are among the winners of the 2007 Jefferson Muzzle awards, given Tuesday by a free-speech group to those it considers the most egregious First Amendment violators in the past year.

The Bush administration appears on the list, compiled by the Thomas Jefferson Center for the Protection of Free Expression, for its efforts to discourage, modify and sometimes censor government scientists’ reports and studies to be more in line with the administration’s political policies, notably on global warming, the center said.

“The number of major scientists who have come forward and indicated they were constrained by the administration viewpoint is quite worrisome,” center director Robert M. O’Neil told The Associated Press. “There have been similar concerns arising in other areas but we wanted to focus specifically on climate change as the most invaded or intruded area.”

Florida Opens Dockets...

From the First Amendment Center:

The Florida Supreme Court issued emergency rules yesterday designed to stop the improper sealing of court records and dockets in civil cases, but delayed a decision on whether they also should cover criminal cases.

The unsigned, unanimous opinion requires court clerks to post notices on their Web sites and courthouses after a record is sealed and allows citizens to then challenge those decisions. Courts are also prohibited from making case, docket and other identifying numbers confidential.

“Most significant for our purposes here ... the removal from public view of all information acknowledging the existence of a case is expressly not allowed,” the justices wrote.

That’s exactly what happened in Broward County with divorces and other civil cases involving more than 100 prominent people, including television personalities, judges and elected officials.

The Miami Herald last year disclosed the hidden docket after obtaining case numbers and names, but not sealed documents, through a lawsuit...

Closing the Statehouse Door?

From the Associated Press comes a fresh outrage....

The move was as much a surprise to most legislators as it was to reporters. Georgia House Speaker Glenn Richardson stepped to the podium two weeks ago on one of the busiest days of the legislative session and introduced a ban on reporters from the chamber while lawmakers are in session.

Within hours, the proposal was adopted and Georgia joined a growing number of states restricting journalists' access to lawmakers while legislative bodies are in session.

According to an Associated Press survey, legislative leaders in at least 38 states have restricted reporters from accessing lawmakers on the floors of at least one chamber during a floor session. Georgia joined Kansas this year in seemingly reviving the trend after several years in which few - if any - legislative leaders moved to restrict access.

Often, the measures are touted as a way to maintain order so legislators can focus on the debate at hand, or as a way to give lawmakers more space to maneuver through increasingly crowded rooms.

In Kansas, a new House Speaker imposed a similar ban on reporters this year in hopes of preserving decorum. In Georgia, the House leader argued reporters were given more leeway than their counterparts in other states.

"It just says the media is not to be given more rights than the public," said Richardson, a Republican from the Atlanta suburb of Hiram, before the change was approved on a 132-29 vote.

Critics contend it furthers limits the public's access to elected officials and restricts monitoring of government.

"This is another effort to impede public access to government proceedings," said Hollie Manheimer of the Georgia First Amendment Foundation. "By limiting the flow of information to the public, this is a step backward."

Wolf Freed....

From the San Francisco Chronicle

Josh Wolf, the blogger whose record 7 1/2 months in federal prison stirred debate about who qualifies as a journalist and what legal protections they should receive, was freed today after releasing video footage sought by prosecutors about an anarchist protest.

[Hear Josh Wolf's news conference (.mp3)]

Wolf, 24, held in contempt by a federal judge last August for defying a grand jury subpoena, walked out of the Federal Correctional Institution in Dublin at mid-afternoon after his lawyers and federal prosecutors reached a compromise, with the help of a federal magistrate.

Wolf posted the uncut video on his Web site, gave prosecutors a copy and denied under oath that he knew anything about violent incidents at the July 2005 protest. In return, his lawyers said, prosecutors agreed not to summon him before the grand jury or ask him to identify any of the protesters shown on his video.

Prosecutors' withdrawal of their demand for his testimony was the key to the deal, Wolf told reporters outside the prison gate.

"Journalists absolutely have to remain independent of law enforcement,'' he said. "Otherwise, people will never trust journalists.''

Asked about his imprisonment -- the longest-ever for a U.S. journalist for withholding information -- Wolf said, "Absolutely, this was worth it. I would do it again if I had to.'' He also said his case showed the need for a federal "shield law'' that would protect journalists, including bloggers, from having to disclose confidential sources or unpublished material.

Tennessee Series Generates Huge Response

From Editor & Publisher:

The Knoxville News Sentinel's open-meeting lawsuit against 20 current and former members of the county commission has struck a chord with readers.

Hundreds of them. Too many letters and e-mails to print.

It is the very response the American Society of Newspaper Editors might hope for as it concludes Sunshine Week, promoting open government at all levels.

"There is so much negative feedback in this business. Sometimes you get the feeling that everybody hates you and you never can get anything right," editor Jack McElroy said. "To latch onto something where people are supportive of you and enthusiastically so, it is really nice to feel."

The paper's lawsuit contends that Knox County commissioners made private deals before they appointed eight new members to fill term-limited vacancies Jan. 31 in a process steeped in small-town, good ol' boy cronyism and nepotism.

Three of the eight appointees had relatives on the commission, and 13 of the 19 commissioners either work for the county or have relatives that do. None abstained from voting as they filled the eight commission seats and four county offices following a Supreme Court order to recognize term limits adopted by voters in 1994.

It's illegal in Tennessee and most other states for members of a county commission or city council to meet in private to discuss public matters, except in limited circumstances.

But Tennessee's law has few teeth. News media groups, citizen groups and open government advocates are urging lawmakers to toughen the sunshine law. Among the proposals: Impose fines on public officials who close meetings or withhold documents. And last month, Gov. Phil Bredesen announced his plan to establish an ombudsman to help people denied access to public records.

Meantime, the News Sentinel's lawsuit may not be resolved for months. An initial hearing has yet to be set. And thenew commission appointments only run through 2008.

Sunshine Week Column for You....

In Sunday's Kansas City Star...

Sunshine Week is an occasion for thinking about the importance of access to governmental information — not the sexiest of topics, admittedly, but sometimes the things we take for granted have a way of sneaking up on us.

Every week is Sunshine Week at the National Freedom of Information Coalition, a nonprofit academic center at the University of Missouri School of Journalism. My job consists of helping a never-ending array of requesters with information requests languishing at all levels of government, from federal agencies to local boards.

Think that freedom of information is some special-interest fetish of the press? Think again...

While the Beltway Journalists Sing....

Josh Wolf rots in jail...

The SF Bay Guardian's Bruce Brugmann says it's a shame, and calls out Kurtz:

Marvelous. Simply marvelous. While ten of the l9 witnesses testifying in the Libby trial were singing journalists, and three of them were central to securing Libby's conviction, Howard Kurtz, the media critic of the Washington Post and the voice of the inside-the-beltway media establishment, did not raise any of the obvious issues and questions in this unprecedented mass outing of sources by journalists in federal court in Washington, D.C. It was a "spectacle that would have been unthinkable only a few years ago," as Adam Liptak put it rightly in the New York Times March 8.

Instead, one day after the Libby guilty verdict, Kurtz went after Josh Wolf, the longest jailed journalist in U.S. history for contempt of court, in his March 8 column headlined "Jailed Man Is A Videographer And a Blogger but Is He a Journalist?" Kurtz, who tosses softballs about every Sunday morning in his media show on CNN, hit Josh hard with a lead that said, "He is being cast by some journalists as a young champion of the First Amendment, jailed for taking a lonely stand heavy-handed federal prosecutors."

Then: "But Wolf's rationale for withholding the video, and refusing to testify, is less than crystal clear. There are no confidential sources involved in the case. He sold part of the tape to local television stations and posted another portion on his blog. Why, then, is he willing to give up his freedom over the remaining footage?"

And then he quoted, not a media lawyer nor a journalist with knowledge of
California law, but a professor who ought to be flunked out of law school (Eugene Volokh, a law professor at the University of California Los Angeles). Kurtz quoted Volokh as saying without blushing, "It's one thing to say journalists must respect promises of confidentiality they made to their sources. It would be quite another to say journalists have a right to refuse to testify even about non-confidential sources. When something is videotaped in a public place, it's hard to see even an implied agreement of confidentiality."

To which I ask....whatthe?

FOI Reforms Move Out of Committee!

Big News out of Washington:

The House Oversight and Government Reform Committee today approved HR 1309, the Freedom of Information Act Amendments of 2007, sponsored by William Lacey Clay, D-MO, Todd Platts, R-PA, and Henry Waxman, D-CA.

The bill is intended to force broad changes in government agency performance and response to FOIA requests.

The committee also cleared two other open government bills, one overturning President Bush’s order that blocked release of presidential records, the other requiring disclosure of donors to presidential libraries. All are expected to be offered for floor vote within the next week.

Also next week, Sens. Patrick Leahy, D-VT, and John Cornyn, R-TX, will introduce the 2007 version of their OPEN Government Act. The major difference between the House and Senate bills may be the final section of the House bill, which creates a presumption of openness for government records and direct agencies to release information if they do not reasonably foresee that disclosure would be harmful.

In effect, this reverses the Ashcroft memo – withhold information if there is any legal basis to do so. This still stands as Justice Department guidance to all federal agencies. Rep. Lamar Smith, R-TX, who sponsored FOIA reform in the last Congress, introduced a bill identical to Clay”s except for this section. At Thursday’s hearing, Republicans tried but failed to strike this section.

Here’s what else the “Freedom of Information Act Amendments of 2007” does:

-- Put pressure on the agencies to meet the 20-working day response deadline by waiving search and copying fees if the deadline isn’t met.

-- Requires agencies to establish FOIA hotlines and request tracking systems.

-- Creates an independent ombudsman, located in the National Archives, to help requesters resolve disputes without resorting to litigation.

-- Establishes the requester’s right to recover legal fees if they obtain disputed records from an agency after filing suit.

-- Broadens the definition of a journalist for fee waiver purposes to include most freelancers and bloggers.

-- Mandates broader and more specific performance reporting to heighten agency accountability for service quality.

-- Direct agencies to indicate the specific exemption being cited at the location of any redaction in a document.

-- Makes clear that government records held by private entities are covered by FOIA.

-- Requires that any bill amending the Freedom of Information Act include a clear marker declaring that intent.

-- Directs the Office of Personnel Management to report on the adequacy of FOIA staffing.

He's Baaaaaaack.....

From the Coalition of Journalists for Open Government:

Once again, an urgent request for action in response to efforts by Sen. Jon Kyl, R-AZ, to criminalize the leaking – and publishing – of classified information.

Sen. Kyl first sought to attach to a data mining bill being considered by the
Judiciary Committee what can only be described as a backdoor approach to an official secrets act. When the bill was held over, at least in part because its sponsor considered the amendment unfriendly, Sen. Kyl withdrew it and then submitted a rewritten version as a floor amendment to Senate Bill 4, which would enact recommendations of the 9/11 commission. That bill could be voted on as early as mid-week.

The modified amendment is not as sweeping as the earlier version but it is still dangerous revision of the Espionage Act and its chill would inevitably extend far beyond the classified information included. The new amendment makes it a crime to leak or “publish” any classified information contained in reports provided to Congress. These required reports -- 28 in all -- are detailed in three statutes identified in the amendment. (A copy is attached.)

Even as modified, the amendment is a dangerous overhaul of the espionage statutes and dramatically lowers the burden that the government must meet in order to prosecute a government leaker. Instead of proving, as required by current law, that the individual has reason to believe the information could be used to the injury of the United States, the government would only have to prove the individual used the information "in any manner prejudicial to the safety or interest of the United States". This lower standard could lead to a chilling of daily communications between the government and the media.

In addition, amendment makes it a crime to “publish” any classified information in the reports. If one of these reports says that a particular US port is vulnerable because local officials have been negligent in providing adequate security, and that is reported in the local newspaper, the reporters and publisher could be prosecuted for informing local citizens that they may be at risk,

Once again, Sen. Kyl seeks to use the amendment procedure to avoid the give and take of hearing and debate and a full and thoughtful discussion of whether any new law involving leaks are needed.

From our soundings on the Hill, there is considerable concern that if the amendment is added to the 9/11 bill it could be approved by the Senate.

This is not the time to wait and see what happens. Please share this and impress on your members the urgency of raising all our voices.

Latest on Espionage Act stuff

From my pal Rick Blum for the Sunshine in Government Initiative:

The markup on S. 236 was postponed.

Senator Kyl dropped his original broad language yesterday afternoon and last night circulated narrower language that he intended to bring up. Feingold, the sponsor of S. 236, the data mining bill, postponed consideration of it until the next meeting. The narrower language is still problematic.

Here is the new language:

SEC. 4. PROTECTION FOR CLASSIFIED INFORMATION CONTAINED IN AN ANNEX TO A DATA MINING REPORT.

Except as specifically authorized by paragraph (b)(8) of section 3 of this Act, whoever, being an employee of the United States House of Representatives or Senate, or being entrusted with or having lawful possession of, access to, or control over, any classified information contained in an annex made available pursuant to paragraph (b)(8) of section 3 of this Act, and who knowingly and willfully communicates, furnishes, transmits, or otherwise makes available such information to an unauthorized person, shall be fined under Title 18 of the United States Code or imprisoned not more than ten years, or both.