[Congressional Record Volume 158, Number 166 (Friday, December 21, 2012)]
[Pages S8341-S8346]

                       Intelligence Authorization

  Mr. WYDEN. Mr. President, both sides are working to pass the 
intelligence authorization bill for 2013.
  I voted against this legislation when it was marked up in committee. 
I objected to it here on the floor last month. But I am able to support 
it at this time.
  The bill has a number of valuable provisions in it, and I thank 
Chairwoman Feinstein and Vice Chairman Chambliss for making the changes 
in the bill to address my concerns.
  The changes Senators Feinstein and Chambliss have made would remove a 
number of provisions that were intended to reduce unauthorized 
disclosures of classified information, of course, known as leaks.
  I objected to these provisions 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 
  I am going to take a few minutes to explain my views on this so that 
those who are not on the Intelligence Committee and who have not heard 
this issue addressed before will understand what the debate was about 
and what I believe has been accomplished.
  I certainly agree with Senators that unauthorized disclosure of 
national security information, known as leaks, is a serious problem. 
Unauthorized disclosure of sensitive information can jeopardize 
legitimate military and intelligence operations, and even put lives at 
risk. So I do believe it is 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.
  Personally, I have spent more than 4 years working on the legislation 
to increase the criminal penalty for those who are convicted of 
deliberately exposing covert agents, and I was pleased that, with the 
help of Senators on both sides of the aisle, that legislation was 
finally signed into law in 2010. So I am all for the Congress 
recognizing that leaks are a serious problem and for doing things to 
show the men and women of the U.S. intelligence community that the 
seriousness of this issue is recognized in this body.
  It is important for Congress to remember, however, that not 

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that is done in the name of stopping leaks is necessarily wise policy. 
In particular, I think Congress ought to be extremely skeptical of any 
antileak legislation that threatens to encroach on the freedom of the 
press or that reduces access to information that the public has a right 
to know.
  A number of Senators may be aware that my father was a journalist who 
reported on national security issues. Among other books, he wrote what 
has been called the definitive account of the Bay of Pigs invasion, as 
well as an authoritative account of how the United States came to build 
and use the first atomic bomb. Accounts such as 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 are 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 do not 
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 12 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 this in mind, I was particularly concerned about sections 
505 and 506 of this bill because both of them would have limited the 
flow of unclassified information to the press and to the public. 
Section 505, as passed by the Intelligence Committee, would have 
prohibited any government employee with a top secret, compartmented 
security clearance from ``entering into any contract or other binding 
agreement'' with ``the media'' to provide ``analysis or commentary'' 
concerning intelligence activities for a full year after that employee 
left the government.
  That provision would clearly have led 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 entirely appropriate for former officials to help educate the 
public in this fashion.
  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 ban that 
person from doing so even if they have been retired less than a year. 
This provision also would have said that retired officials who comment 
in the media would not be able to serve on advisory boards for the 
intelligence community, which I believe would have deprived the 
community of valuable knowledge and advice.
  Section 506 would also have led 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 gave 
their names and provided the briefings on the record.
  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 those briefings. I have seen no evidence that making it 
harder for the intelligence agencies to provide these briefings will 
benefit national security in any way. So I see no reason to limit the 
flow of information in this manner.
  The third provision I thought was troubling was section 511, which 
would have required the Director of National Intelligence to establish 
an administrative process under which he or she and the heads of the 
various intelligence agencies would have had the authority to take away 
pension rights from an intelligence agency employee or a former 
employee. That could be done if the DNI or the agency head determined 
that the employee knowingly violated his or her nondisclosure agreement 
and disclosed classified information.
  I have been concerned that the Director of National Intelligence 
himself said this provision would not be a significant deterrence to 
leaks, and that it would neither help protect national sensitive 
security information nor make it easier to identify and publish actual 
  Beyond these concerns about the provision's effectiveness, I have 
also been concerned that giving intelligence agency heads broad new 
authority to take away the pensions of individuals who have not been 
formerly convicted of any wrongdoing could pose serious problems for 
the due process rights of intelligence professionals, particularly when 
the agency heads themselves have not told Congress how they would 
interpret and implement the authority.
  As many of my colleagues will guess, I was especially concerned about 
the rights of whistleblowers who report waste, fraud, and abuse to the 
Congress or the inspector general. I have outlined these due process 
concerns in more detail in the committee report that accompanies this 
  I would just note for a moment that I was particularly concerned that 
section 511 would have created a special avenue of punishment that only 
applied to accused leakers who worked for an intelligence agency at 
some point in their career. There are literally thousands of employees 
at the Department of Defense, State, and Justice, as well as the White 
House, who have access to sensitive national security information. I do 
not see a clear justification for singling out intelligence community 
employees when there is no apparent evidence these employees are 
responsible for a disproportionate number of leaks.
  For what it is worth, Robert Litt, the general counsel for the 
Director of National Intelligence told the American Bar Association 
last month that in his view these proposals, ``really would not have 
any deterrent impact or punitive impact on leaks, and might in fact 
have an adverse impact on the free flow of information to the American 
  In summary, I am grateful to the chair of the Intelligence Committee, 
Senator Feinstein, and vice chairman, Senator Chambliss, for responding 
to the concerns that I have outlined by removing nearly all of the 
antileak provisions from this legislation. The provision that remains 
would require the executive branch to notify the Congress when they 
classify information to disclose it to the press.
  I believe this provision will lead to more informed public debate by 
making it clear to Members of Congress whether particular press reports 
are based on authorized but unattributed disclosures that we can 
respond to as we see fit, and unauthorized leaks that would not be 
responsible for us to confirm or deny. So I believe that particular 
provision is useful, and I commend the chair and vice chairman for 
including it.
  In summary, I think we all understand that in these important 
intelligence debates--and I remember when the Presiding Officer was on 
the committee and doing good work--we always understood that it came 
down to striking a balance. There is something of a constitutional 
teeter-totter where on one side we have protecting collective security, 
and on the other said we have the public's right to know and the 
individual liberties of the American people.
  As written, as reported by the committee, I believe that legislation 
would have seriously put out of balance the constitutional ``teeter.'' 
I think it would have harmed legitimate first amendment rights. I think 
it would have done damage to the public's right to know. I believe it 
would have discouraged the ability to ensure that we had a thorough and 
adequate discussion of issues that are so important for the American 
people, as the American people look to the Congress of the United 
States, and particularly this body, to strike the appropriate balance, 
the right balance, between protecting our country at a time when there 
are serious threats and, on the other hand, protecting our individual 
liberties and protecting the public's right to know.
  With the changes the Chair, Senator Feinstein, and the vice chair 
have accepted, I believe this legislation now

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strikes the right balance. With both sides working on an agreement to 
improve the intelligence authorization bill for 2013 by unanimous 
consent, it is my hope that legislation will be approved by unanimous 
consent shortly.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.