November 14, 2012

Wyden Places Hold on Intelligence Authorization Bill

Washington, D.C. – Citing concerns over anti-leak provisions that would inhibit free speech and damage the news media’s ability to report on national security issues, U.S. Senator Ron Wyden (D-Ore.) publicly placed a hold on the Intelligence Authorization Act for Fiscal Year 2013, preventing it from passing without serious debate and amendment.

“I think Congress should be extremely skeptical of any anti-leaks bills that threaten to encroach upon the freedom of the press, or that would reduce access to information that the public has a right to know,” Wyden said in a floor statement publicly announcing his hold. “Without transparent and informed public debate on foreign policy and national security topics, American voters would be ill-equipped to elect the policymakers who make important decisions in these areas.

Senator Wyden was the only member of the Senate Select Committee on Intelligence to vote against the Intelligence Authorization Act when it was passed by the committee in July 2012.  The Intelligence Authorization Act as passed out of committee contains a number of controversial provisions intended to reduce leaks of classified information.  One such provision would require former government employees who held Top Secret, compartmented security clearances to wait one year before entering into a contract or agreement to provide analysis or commentary to a media company – a term that is not defined and could conceivably represent almost any form of public dissemination of information. This would impede the free speech of former intelligence officials, and would prevent news organizations from hiring experts to assist in creating more informed news coverage. These officials are already bound by law not to divulge classified information.

Similarly, the bill prohibits most intelligence community officials from speaking with the media on background about unclassified issues, even if they would otherwise be authorized to do so. This would limit the news media’s ability to access legitimate sources of information to improve reporting. Instead, only a small group of intelligence community officials would be allowed to provide background information on behalf of the several intelligence agencies – offering the news media and public significantly less information on important national security issues.

The Intelligence Authorization bill would also give the heads of intelligence agencies the authority to strip pension benefits from any employee or former employee that the agency head “determines” is responsible for an unauthorized disclosure of classified information.  Wyden has objected to this provision in the past because of his concern that it could undermine the due process rights of intelligence community employees, and potentially be used to retaliate against whistleblowers.  The Director of National Intelligence has said that this provision would not help deter leaks, would not help identify leakers, and could actually lead to more disclosures of classified information.  

The entire statement is below:

M. President, the Senate is being asked today to approve the Intelligence Authorization bill for 2013 by unanimous consent.  I believe that significant changes need to be made to this bill before it is passed, so I object to this unanimous consent request.  

When the Senate Intelligence Committee approved this bill in July, I was the only member of the committee to vote against it, and I would like to take a few minutes to explain my concerns, so that my colleagues who are not on that committee can get a better sense of what this debate is about.  

This bill contains a number of worthwhile provisions, and I wish that I had been able to support it.  Unfortunately, it also contains several provisions that I find very troubling, all of them located in Title V of the bill.  These provisions are all intended to reduce unauthorized disclosures of classified information, but I am concerned that they will lead to less-informed public debate about national security issues, and also undermine the due process rights of intelligence agency employees, without actually enhancing national security.  

I agree with my colleagues that unauthorized disclosures of national security information, which are also known as “leaks,” can be a serious problem.  Unauthorized disclosures of sensitive information can jeopardize legitimate military and intelligence operations, and even put lives at risk.  So I think it can be entirely appropriate for Congress to look for ways to help the executive branch protect information that intelligence agencies want to keep secret, as long as Congress is careful not to do more harm than good.  I myself 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 in 2010.  

So I’m all for Congress recognizing that leaks can be a serious problem, and for doing things to show the men and women of the US intelligence community that we recognize the seriousness of this issue.  The problem, though, is that Congress can’t actually legislate this problem away, and attempts to do so can have serious negative consequences.  

One of the best analyses I have seen of the problem of unauthorized disclosures was a report published last year by the National Intelligence University.  The report observed that this problem has been around for several decades, and noted specifically that “The relative consistency in the number of unauthorized disclosures over the past 30 years demonstrates their persistent nature, independent of which political party controls the White House or Congress.”  This report, like a number of previous reports on the subject, also suggested that because it is very difficult to identify government employees responsible for disclosing classified information to the media, unauthorized disclosures are not a problem that can be solved with legislation.  

Again, this doesn’t mean that Congress shouldn’t try to find ways to help the executive branch when it can.  But it does mean that Congress and the public should be generally skeptical of anti-leaks bills, and remember that not everything that is done in the name of stopping leaks is necessarily wise policy.    

In particular, I think Congress should be extremely skeptical of any anti-leaks bills that threaten to encroach upon the freedom of the press, or that would reduce access to information that the public has a right to know.  

As most of my colleagues are aware, my father was a journalist who reported on national security issues.  Among other things, he wrote what many consider to be the definitive account of the Bay of Pigs invasion, as well as an authoritative account of how the US came to build and use the first atomic bomb.  Accounts like these are vital to the public’s understanding of national security issues.  Without transparent and informed public debate on foreign policy and national security topics, American voters would be ill-equipped to elect the policymakers who make important decisions in these areas.  

Congress, too, would be much less effective in its oversight if members did not have access to informed press accounts on foreign policy and national security topics.  And while many members of Congress don’t like to admit it, members often rely on the press to inform them about problems that congressional overseers have not discovered on their own.  I have been on the Senate Intelligence Committee for twelve years now, and I can recall numerous specific instances where I found out about serious government wrongdoing – such as the NSA’s warrantless wiretapping program, or the CIA’s coercive interrogation program – only as a result of disclosures by the press.  

With all of that in mind, I am particularly concerned about sections 505 and 506 of this bill, both of which would limit the flow of unclassified information to the press and to the public.  Section 505 would prohibit any government employee with a Top Secret, compartmented security clearance from, and I quote, “entering into any contract or other binding agreement” with, quote, “the media” to provide “analysis or commentary” concerning intelligence activities for a full year after that employee leaves the government.  This provision would clearly lead to less-informed public debate on national security issues.  News organizations often rely on former government officials to help explain complex stories or events, and I think it is entirely appropriate for former officials to help educate the public in this way.  I am also concerned that prohibiting individuals from providing “commentary” could be an unconstitutional encroachment on free speech.  For example, if a retired CIA Director wishes to publish an op-ed commenting on a public policy debate, I see no reason to try to ban him from doing so, even if he has been retired less than a year.  

I understand my colleagues’ desire to prohibit unauthorized disclosures by retired officials, but these officials are already legally bound not to disclose classified information that they learned while in government service.  And I would also note that this bill does not define who is and who isn’t a member of “the media,” and that this ambiguity could present a variety of problems.  When this bill was being considered in committee, I suggested that we get feedback from outside groups before we voted on it, so that we could address problems like this, and I hope that the committee will take that step in the future.  

Section 506 would also lead to a less-informed debate on national security issues, by prohibiting nearly all intelligence agency employees from providing briefings to the press, unless those employees give their names and provide the briefing on the record.  The bill makes an exception for agency directors and deputy directors, and their public affairs offices, but no one else.  It seems to me that authorized, unclassified background briefings from intelligence agency analysts and experts are a useful way to help inform the press and the public about a wide variety of issues, and there will often be good reasons to withhold the full names of the experts giving these briefings.  I haven’t seen any evidence that prohibiting the intelligence agencies from providing these briefings would benefit national security in any way, so I see no reason to limit the flow of information in this manner.

The third provision that I am most concerned about is section 511, which would require the Director of National Intelligence to establish an administrative process under which he and the heads of the various intelligence agencies would have the authority to take away pension benefits from an intelligence agency employee (or a former employee) if the DNI or the agency head “determines” that the employee has knowingly violated his or her nondisclosure agreement and disclosed classified information.  

I am concerned that the Director of National Intelligence himself has said that this provision would not be a significant deterrent to leaks, and that it would neither help protect sensitive national security information nor make it easier to identify and punish actual leakers.  Beyond these concerns about the provision’s effectiveness, I am also concerned that giving intelligence agency heads broad new 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, particularly when the agency heads themselves haven’t told Congress how they would interpret and implement this authority.  As many of my colleagues will guess, I’m especially concerned about the rights of whistleblowers who report waste, fraud and abuse to Congress or Inspectors General.  

I outlined these due process concerns in more detail in the committee report that accompanied this bill, so I won’t restate them all here.  I will note, though, that I am particularly confused by the fact that section 511 creates a special avenue of punishment that only applies to accused leakers who have worked 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 national security information.  I don’t see a clear justification for singling out intelligence community employees with this provision, when there is no apparent 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.  

While I have a number of smaller concerns regarding the language of these anti-leaks provisions, the issues that I have just laid out represent my central concerns, and I hope that my colleagues now have a better sense of why I oppose this bill.  I would add that my view seems to be widely shared outside of Congress, and that when USA Today ran an editorial criticizing these anti-leaks provisions, they couldn’t find a single senator who was willing to publicly defend them.  

I know that the sponsors of this bill have worked hard on it, and I am still happy to sit down with them at any time to discuss my concerns in more detail, and help them make the major changes that I believe must be made before this authorization bill moves forward.