Secrecy News

Senate Passes Intelligence Bill Without Anti-Leak Measures

Two Updates/Corrections below

The Senate passed the FY2013 intelligence authorization act on December 28 after most of the controversial provisions intended to combat leaks had been removed.

Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee, said the bill was revised in order to expedite its passage.

“Since the bill was reported out,” she said, “the Committee has received thoughtful comments from our colleagues, media organizations, and from organizations that advocate for greater governmental transparency. As a result of these comments, and technical suggestions received from the Executive Branch, we have decided to remove ten of the twelve sections in the title of the original bill that addressed unauthorized disclosures of classified information so that we might ensure enactment this year of the important other provisions of the bill.”

More precisely, the revision of the bill could be attributed to the intervention of Sen. Ron Wyden, who all but single-handedly blocked its enactment after it was approved in Committee last July by a vote of 14-1, with only Wyden dissenting.  Its passage by the full Congress seemed to be assured, but in November, Sen. Wyden placed a hold on the bill to prevent its adoption by unanimous consent.

The provisions that were removed from the final bill included restrictions on background briefings for the press, limits on media commentary by former government officials, and authority for the DNI to unilaterally revoke the pension of a suspected leaker. (“Anti-Leak Measures in Senate Bill Target Press, Public,” Secrecy News, July 31, 2012).

Sen. Wyden opposed most of the anti-leak measures, he explained on December 21, “because, in my view, they would have harmed first amendment rights, led to less informed public debate about national security issues, and undermined the due process rights of intelligence agency employees, without actually enhancing national security.”

He supported the revised intelligence bill, which passed the Senate Friday on a voice vote.

One of the anti-leak provisions that did remain in the bill (sect. 504) will require government officials to notify Congress whenever classified intelligence is disclosed to the press in an authorized manner, other than through FOIA or other routine processes.  Thus, Congress must be advised whenever classified intelligence is declassified specifically for the purpose of disclosure to the media or — more remarkably — if it is disclosed to the press on an authorized basis while still classified.

This is an unprecedented legislative definition (or recognition) of a category of information that has no explicit basis in executive branch policy– namely, authorized disclosures of classified information to an uncleared member of the press or the public.  (“Can Disclosures of Classified Information Be Authorized?”, Secrecy News, December 19, 2012).  While disclosures of classified information to the press obviously occur, the official authorization for such disclosures, if it exists at all, has always remained tacit.  (There is an exception for life-threatening emergencies, in which classified information may be disclosed to first-responders and the like.)

The new provision notably applies to all “government officials,” including White House officials.  It may oblige the Administration either to abstain from authorized disclosures of classified intelligence to the press, or to revise its policies to more clearly permit such disclosures, or to somehow evade the new reporting requirement, perhaps by defining it away.  Thus, for example, Vice President Dick Cheney stated in 2004 that classified information could be used “to shape and inform what one says publicly” without violating prohibitions on disclosure of classified information.

In any case, it will be interesting to see whether the executive branch notifies Congress of even a single such authorized disclosure to the media of classified intelligence over the coming year, after which the provision will sunset (or expire).

“Unfortunately,” said Sen. Feinstein, “I am certain that damaging leaks of classified information will continue, and so the Committee will need to continue to look for acceptable ways to address this problem.”

The revised intelligence bill also backs off from a move to repeal the requirement for an annual report on security clearances.  The most recent such annual report provided significant new transparency and insight into the security clearance system, including the unexpectedly large number of cleared persons.  (“Security-Cleared Population Tops 4.8 Million,” Secrecy News, July 23, 2012).

The Director of National Intelligence had asked Congress to eliminate this reporting requirement, and the Committee markup of the bill initially complied in July.  But in response to concerns expressed by public interest groups, the final legislation did not include the repeal of the security clearance reporting requirement.

“I believe we have addressed all of the concerns that have been brought to our attention by our colleagues and the public,” said Sen. Feinstein.

Update / Correction: The development of the Senate legislation involved more nuance and complexity than was expressed above. In particular, while Senator Wyden was the most outspoken congressional critic of the bill, it is not accurate to say that he “all but single-handedly blocked its enactment” or that passage of the bill by the full Congress was ever “assured.” In fact, Senator Wyden initially supported 11 of the 12 anti-leak provisions at the Committee markup, opposing only the provision on pension revocation. Meanwhile, opposition to the anti-leak measures emerged inside and outside of Congress, notably including the Office of the Director of National Intelligence, as well as press and public interest organizations. Although some of this opposition was not publicly visible, it ultimately proved influential and should not be overlooked.

Update / Correction 2: The previous correction was itself in error when it stated that Senator Wyden supported 11 of the 12 anti-leak provisions. While he specifically expressed opposition to the pension revocation provision at the Committee markup, he did not indicate support for the other measures. He did provide the only ‘no’ vote in Committee against the entire bill. And he was the only Senator to place a hold on the bill, at which time he explained his opposition to several of the bill’s anti-leak proposals.