Washington, D.C. – In a letter to Senate Majority Leader Harry Reid, U.S. Senator Ron Wyden (D-Ore.) a senior member of the U.S. Senate Select Committee on Intelligence declared his intention to object to any attempt to pass the recently reported FY2011 Intelligence Authorization bill by unanimous consent.
Wyden has been raising concerns about the inclusion of a controversial pension forfeiture provision, which would give the heads of intelligence agencies the authority to take away the pension benefits of any intelligence agency employee – or former employee – based on an administrative determination that the employee was responsible for an unauthorized disclosure of classified information. While Wyden, who authored the recent law increasing the criminal penalties for exposing covert agents, indicated his support for efforts to deter leaks of classified information, he said he could not support steps that would deny intelligence personnel the same due process rights available to other government employees.
“I am somewhat perplexed by the fact that section 403 creates a special avenue of punishment that only applies to accused leakers who have worked directly for an intelligence agency at some point in their careers,” Wyden said in a floor statement announcing his hold. “There are literally thousands of employees at the Departments of Defense, State and Justice, as well as the White House, who have access to sensitive information. Some of the most serious leaks of the past few decades have undoubtedly been made by individuals working for these organizations. I do not see an obvious justification for singling out intelligence community employees, particularly in the absence of evidence that these employees are responsible for a disproportionate number of leaks. And I am concerned that it will be harder to attract qualified individuals to work for intelligence agencies if Congress creates the perception that intelligence officers have fewer due process rights than other government employees.”
Wyden raised additional concerns about the bill’s potential impact on existing protections for national security whistleblowers and went on to note that this authority has not been requested by the head of any intelligence agency.
“I know that none of my colleagues would deliberately do anything to undermine protections for legitimate whistleblowers, but I think it was a mistake for the Intelligence Committee to report this bill without hearing the intelligence agencies’ views on whether or not they believe that section 403 would impact existing whistleblower protections,” said Wyden. “It is entirely unclear to me what standard agency heads would use to “determine” that a particular employee was guilty of disclosing information…And as I pointed out to my colleagues during the committee markup of this bill, neither the Director of National Intelligence nor any of the intelligence agency heads have asked Congress for this authority."
While Wyden indicated that he supports the majority of the provisions in the FY2011 Intelligence Authorization bill, he explained that his concerns about the pension forfeiture provision are strong enough that he will not allow the legislation to proceed until the provision is sufficiently modified or removed. As a matter of policy, Wyden publicly announces any formal objection he lodges with regard to nominees or legislation in a formal statement in the Congressional Record. The text of Senator Wyden’s statement is below:
Statement of Senator Ron Wyden on FY2011 Intelligence Authorization Bill
April 5, 2011
M. President, I would like to briefly address the intelligence authorization bill for fiscal year 2011, which has now been reported by the Intelligence Committee. I filed additional views to the committee report accompanying the bill, and my remarks today will include a brief summary of those views.
I have now been a member of the Senate Intelligence Committee for over a decade – Senator Feinstein, Senator Rockefeller and I all began serving on the committee at the beginning of 2001, which I believe makes us the committee’s longest-serving current members. In my time on the committee, I have become quite familiar with the intelligence authorization process.
It has now been almost seven years since an intelligence authorization bill was signed into law during the fiscal year it was intended to cover, and although the 2011 fiscal year is now over halfway over, Congress still has an opportunity to provide useful guidance and direction regarding intelligence spending for this fiscal year. The FY11 intelligence authorization bill is the product of substantial labor by both Chairman Feinstein and Vice Chairman Chambliss, as well as their respective staff, and I commend them both for their efforts and for the bipartisan manner in which they have worked to put it together.
Unfortunately, I have very serious concerns about one provision of this bill, and that is why I voted against it during the committee markup last month.
Section 403 of this bill would authorize the Director of National Intelligence (DNI) to establish an administrative process under which the DNI and the heads of the various intelligence agencies would have the authority to take away the pension benefits of an intelligence agency employee, or a former employee, if they “determine” that the employee has knowingly violated his or her nondisclosure agreement and disclosed classified information.
I share my colleagues’ frustration regarding unauthorized disclosures, or “leaks,” of classified information. Leaks are a problem that has plagued intelligence agencies throughout modern history – they can undermine intelligence operations, jeopardize intelligence sources and methods, and have a terrible impact on the lives of covert agents who are publicly exposed.
Every member of Congress, myself included, wants to find new ways to identify and appropriately punish individuals who illegally disclose classified information. I personally spent four years working on legislation to increase the criminal penalty for people who are convicted of deliberately exposing covert agents. And I am proud to say that with help from a number of my Republican and Democratic colleagues, this legislation was finally signed into law last year. So I don’t take a backseat to anybody when it comes to getting tough on leaks.
I agree that increasing penalties for particular offenses can sometimes have a deterrent effect on those who might otherwise be tempted to leak, so I support the creation of new consequences for individuals who have been convicted of illegally divulging classified information. But when it comes to leakers, the biggest challenge is not determining how to punish them as much as it is identifying who they are.
Given these challenges, my concern is that giving intelligence agency heads the authority to take away the pensions of individuals who haven’t been formally convicted of any wrongdoing could pose serious problems for the due process rights of intelligence professionals, and particularly the rights of whistleblowers who report waste, fraud and abuse to Congress or Inspectors General.
Section 403 - as approved by the Select Committee on Intelligence - gives intelligence agency heads the power to take pension benefits away from any employee that an agency head “determines” has knowingly violated their nondisclosure agreement. But as I pointed out to my colleagues during the committee markup of this bill, neither the DNI nor any of the intelligence agency heads have asked Congress for this authority. Moreover, as of today none of the intelligence agencies have officially told Congress how they would interpret this language.
It is entirely unclear to me what standard agency heads would use to “determine” that a particular employee was guilty of disclosing information. It seems clear that section 403 gives agency heads the power to make this determination themselves, without going to a court of law, but the language of the provision provides virtually no guidance about what standard should be used, or even whether this standard could vary from one agency to the next. And no agency heads have yet told Congress what standard they believe they would be inclined or required to use. This means that if an agency head “determines” that a particular individual is responsible for a particular anonymous publication, he or she could conceivably take action to revoke that individual’s pension benefits even if the agency does not have enough proof to convict the employee in court.
Section 403 states that agency heads must act “in a manner consistent with the due process and appeal rights otherwise available to an individual who is subject to the same or similar disciplinary action under other law.” But federal agencies do not normally take away the pension benefits of former employees unless they are convicted of a crime or begin openly working for a foreign government. I do not believe that this “otherwise available” language is intended to require the government to get a criminal conviction, but beyond that I am not at all sure what impact this language is supposed to have and I am not sure that the various intelligence agency heads will know what it means either. This only increases my concern that this provision could be used to undermine or violate the due process rights of intelligence agency employees, with a corresponding impact on their family members and dependents.
I am also especially troubled that section 403 is silent regarding disclosures to Congress and Inspectors General. Everyone hopes that intelligence agency managers and supervisors will act honorably and protect whistleblowers who come forward and go through proper channels to report waste, fraud and abuse in national security agencies, but this is unfortunately not always the reality. There are existing laws in place that are intended to protect whistleblowers who provide information to Congress and Inspectors General – and I believe that these laws should be strengthened – but section 403 does not specify whether it would supersede these existing statutes or not. I know that none of my colleagues would deliberately do anything to undermine protections for legitimate whistleblowers, but I think it was a mistake for the Intelligence Committee to report this bill without hearing the intelligence agencies’ views on whether or not they believe that section 403 would impact existing whistleblower protections.
It is unfortunately entirely plausible to me that a given intelligence agency could conclude that a written submission to the congressional intelligence committees or an agency Inspector General is an “unauthorized publication,” and that the whistleblower who submitted it is thereby subject to punishment under section 403, especially since there is no explicit language in the bill that contradicts this conclusion. Withholding pension benefits from a legitimate whistleblower would be highly inappropriate, but overzealous and even unscrupulous individuals have served in senior government positions in the past, and will undoubtedly do so again in the future. This is why it is essential to have strong protections for whistleblowers enshrined in law, and this is particularly true for intelligence whistleblowers, since, given the covert nature of intelligence operations and activities, there are limited opportunities for public oversight. But reporting fraud and abuse by one’s own colleagues takes courage, and no whistleblowers will come forward if they do not believe that they will be protected from retaliation.
Finally, I am somewhat perplexed by the fact that section 403 creates a special avenue of punishment that only applies to accused leakers who have worked directly for an intelligence agency at some point in their careers. There are literally thousands of employees at the Departments of Defense, State and Justice, as well as the White House, who have access to sensitive information. Some of the most serious leaks of the past few decades have undoubtedly been made by individuals working for these organizations. I do not see an obvious justification for singling out intelligence community employees, particularly in the absence of evidence that these employees are responsible for a disproportionate number of leaks. And I am concerned that it will be harder to attract qualified individuals to work for intelligence agencies if Congress creates the perception that intelligence officers have fewer due process rights than other government employees.
Withholding pension benefits from individuals who are convicted of disclosing classified information will often be an appropriate punishment. This punishment is already established in existing laws, and I would be inclined to support efforts to clarify or strengthen these laws. But I am not inclined to give agency heads broad authority to take away the pensions of individuals who have not been convicted of wrongdoing, particularly when the agency heads themselves have not even told Congress how they would interpret and implement this authority. This is why I voted against this authorization bill. All of my colleagues and I agree that illegal leaks are a serious problem, but this does not mean that anything at all that is done in the name of stopping leaks is necessarily wise policy.
I look forward to working with my colleagues to amend this bill, and I am hopeful that they will be willing to modify or remove section 403 to address the concerns I have raised. In the meantime, I should be clear that it is my intention to object to any request to pass the current version of the bill by unanimous consent.