New Leak Penalties Proposed in Senate Intel Bill

The Senate Intelligence Committee is proposing to punish leaks of classified information by authorizing intelligence agencies to seize the pension benefits of current or former employees who are believed to have committed an unauthorized disclosure of classified information.

The pending proposal would “provide an additional administrative option for the Intelligence Community to deter leakers who violate the prepublication review requirements of their non-disclosure agreements,” the Committee said in its new report (pdf) on the FY2011 Intelligence Authorization Act.

“This option may require individuals to surrender their current and future federal government pension benefits if they knowingly violate the prepublication review requirements in their non-disclosure agreements in a manner that discloses classified information to an unauthorized person or entity,” the report said.

But the premises of the new proposal are questionable and it has generated some controversy even within the Senate Committee itself.

The starting point of the Committee proposal is that leakers are rarely if ever punished.  “A particular source of frustration has been that leakers are rarely seen to suffer consequences for leaking classified information.”  In fact, however, the number of ongoing leak-related prosecutions is currently at an all-time high.

Secondly, the Committee believes that existing administrative sanctions that stop short of criminal prosecution — including “security clearance revocation, suspension, or termination” — are inadequate and incomplete because they cannot reach persons who are no longer government employees.  “Unfortunately, these sanctions are not generally available for use against a key source of leaks, former Intelligence Community employees.”  But it is not at all clear, and the Committee does not attempt to demonstrate, that former Intelligence Community employees are “a key source of leaks.”  In practice, the government already has strong legal authority to enforce prepublication review requirements, and the CIA is currently engaged in suing at least one of its former employees (“Ishmael Jones”) for an alleged violation of those requirements.

Perhaps for those reasons and others, the Intelligence Community itself did not request the pension seizure authority that the Senate Intelligence Committee now proposes to bestow on it.

But the pending proposal may be worse than unnecessary, said Sen. Ron Wyden in a dissenting statement attached to the new Intelligence Committee report. He said it could discourage whistleblowers and impede congressional access to information.

“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,” Sen. Wyden wrote.

“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 [this provision], 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,” wrote Sen. Wyden, who voted against the pending bill (pdf).

Another provision of the bill calls for establishment of “an effective automated insider threat detection program for the information resources in each element of the Intelligence Community in order to detect unauthorized access to, or use or transmission of, classified information.”

Setting aside the specifics of the proposals, the underlying message from the Senate Committee is that agencies should do even more, not anything less or different, to combat leaks of classified information.  The Senate Committee was silent on other aspects of classification policy.  In particular, it had no guidance to offer concerning the halting efforts in the Intelligence Community to reduce overclassification.

Update: Senator Wyden said that he would object to any attempt to pass the FY2011 Intelligence Authorization bill by unanimous consent because of his opposition to the pension forfeiture provision.

2 thoughts on “New Leak Penalties Proposed in Senate Intel Bill

  1. Deja vu all over again. Is there any indication which Senator got this put in the bill?

    It would be interesting to see a legal analysis of how all this would/should/could work. How far down could the pension-revocation authority extend? Would there be legal review of the decision by legal counsel either within or outside of the IC component taking the action? How would OPM, which (AFAIK) handles most IC pensions, be legally instructed to stop sending out checks? Would the revocee be informed of the action and its reasons, or would the checks just stop coming? Etc., etc.

  2. This bill was pure subterfuge on the part of NSA management and similar ilk. The REAL goal is to viciously punish whistleblowers who want to DO THE RIGHT THING and report SEVERE wrong-doing being hidden under the guise of Homeland Security and classification. The problem is, after interviewing several NSA people who were targeted for harassment and fraudulent dismissal, quite against all Federal regulations, not only do the internal checks and balancesat NSA NOT work BECAUSE they have become tools of retaliation (EEO, IG, Security) but they viciously want to punish anyone who finds out they are a sham and take their knowledge elsewhere – like the DOD Hotline (also a sham) or Justice Department (a sham), FBI, etc. NSA has essentially becaome the play toy of megalomaniac traitors and subversives misusing classfied information for personal kingdom building and a Security force built up far beyond actual need to act as brown shirts against not only dissidents or critics, but the hapless NSA employee who in good conscience believes the “No Fear Act” tripe about reporting wrong doing with no fear of retaliation. Anyone doing so is immediately called to the fraudulent Security Psych Services, accused of a mental illness there is no proof of and never has been, then subnected to malicious and relentless slander and libel not only at work but eventually throughout that person’s neighborhood and social contacts, even their doctors are “interviewed” in such a way as to fling NSA monkey poop on that person’s reputation – afterall, a government agency wouldn’t “lie”, right? Oh, Hell yes NSA does. And certain managers elicit help from Security goons to fabricate accusations and outrageous evidence that wouldn’t stand the light of day in a REAL court, in order to suppress knowledge about managerial wrong-doing which is immoral, unethical and ever increasingly criminal. Punishing GOOD people is what this farce of a bill was all about. NSA management needs to be eviscerated, prosecuted, and imprisoned for criminal abuse of their power and position. We ought to have leadership that doesn’t engage in contract fraud, trading promotions for sexual favors, stealing work credit from the deserving to promote the undeserving crony or sex toy, discussing what terrorist threats to “allow” to come to fruition in order to grab more power and money, trading intelligence to China for profit…. squelching this bill is a good start, but fumigating the diseased top of the NSA traitorous leadership is a better way to continue.

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