Senate Intelligence Committee Adopts a Dozen Anti-Leak Measures

The Senate Intelligence Committee’s markup of the 2013 intelligence authorization bill includes 12 provisions that are intended to combat unauthorized disclosures of classified information.

The proposed steps, which are of varying weight and severity, include:

• a requirement to notify Congress when intelligence information is disclosed to the public (outside of the FOIA or the regular declassification review process) and to maintain a record of all authorized disclosures of classified information
• a requirement to establish formal procedures for leak investigations
• a requirement to assess procedures for detecting leaks, including expanded use of polygraph testing in other parts of the executive branch
• a prohibition on cleared personnel (or formerly cleared personnel for up to a year after employment) serving as paid consultants or commentators to a media organization regarding intelligence matters
• a requirement that only certain designated intelligence community officials may communicate with the media
• a requirement for all intelligence community employees to report any contacts with the media
• a requirement for the Attorney General and the DNI to submit a report to Congress on possible improvements to current procedures governing leak investigations
• establishment of provisions to require surrender of federal pension benefits as a penalty for unauthorized disclosures
• a provision to prohibit security clearances for individuals who make unauthorized disclosures of covert action information

“The culture of leaks has to change,” said Committee Chair Sen. Dianne Feinstein in a news release. “Leaks of classified information regarding intelligence sources and methods can disrupt intelligence operations, threaten the lives of intelligence officers and assets, and make foreign partners less likely to work with us.”

In several respects, the proposed new measures are not a dramatic departure from the status quo.  Unauthorized disclosures are already barred by non-disclosure agreements that all cleared personnel must sign.  Unauthorized contacts between intelligence personnel and the press are already discouraged or prohibited.  The Director of National Intelligence has already ratcheted up leak investigations and started an insider threat detection program.

Significantly, the proposed anti-leak provisions would not amend the Espionage Act.  They would not make all disclosures of classified information a felony.  They would not impose restrictions on the unauthorized receipt of classified information, or penalize publication of such information (although one provision invites the Attorney General to reconsider limitations on subpoenas to members of the media).

And yet there is something incongruous, if not outrageous, about the whole effort by Congress to induce stricter secrecy in the executive branch, which already has every institutional incentive to restrict public disclosure of intelligence information.

In an earlier generation of intelligence oversight, leaks led to leak investigations in executive agencies, but they also prompted substantive oversight in Congress.  When Seymour Hersh and the New York Times famously reported on unlawful domestic surveillance in December 1974, the urgent question in Congress was not how did Hersh find out, or how similar disclosures could be prevented, but what to do about the alarming facts that had been disclosed.

In contrast, while pursuing leaks and leakers, today’s Senate Intelligence Committee has not held an open public hearing for six months. The Committee’s investigative report concerning CIA interrogation practices from ten years (and two presidential terms) ago has still not been issued.  Upon publication — perhaps this fall — it will essentially be a historical document.

Most fundamentally, the Committee’s new draft legislation errs by treating “classification” as a self-validating category — i.e., if it’s classified, it warrants protection by definition — rather than as the flawed administrative instrument that it is.

As far as the Committee is concerned, the unauthorized disclosure of any classified information — even the substance of a constitutional violation that was recently committed by a US intelligence agency — would constitute a punishable offense, regardless of its public policy significance.

Last Friday, the DNI agreed to declassify the bare fact of such an actual violation, in response to a request by Senator Ron Wyden (as reported by Wired, but altogether overlooked in the Committee’s latest report on FISA last month).  This disclosure by the DNI would apparently trigger the proposed new requirement to notify Congress of public releases of intelligence information since it was “declassified for the purpose of the disclosure” — which is just silly.

“The whole notion of classification in this building has degenerated into a joke, most reporters and a lot of officials would agree,” said Tony Capaccio of Bloomberg News at a Pentagon press briefing on Tuesday.  He asked how the Pentagon planned to distinguish between legitimate secrets and spurious secrets when monitoring news stories for leaks.

“What steps are you going to be taking to make sure when you analyze these news stories that it’s really classified-classified versus B.S.-classified information?”

“I don’t have the answer yet, Tony,” replied Pentagon press spokesman George Little.

Neither does the Senate Intelligence Committee.

The full version of the FY2013 Senate intelligence bill and the accompanying report is expected to be filed on Friday.  The proposed anti-leak provisions “are the product of work over the past several weeks within the Committee, in discussion with the Executive Branch, in consultation with the House Intelligence Committee, and reflecting input from nongovernmental organizations,” according to the Senate Intelligence Committee.