Correction added below
The anti-leak provisions proposed by the Senate Intelligence Committee in the pending FY2013 intelligence authorization act have been widely criticized as misconceived and ill-suited to achieving their presumed goals.
But they also suffer from a lack of clarity and an absence of definitions of crucial terms.
For example, there is no clear definition of “the news media” to whom unauthorized disclosures are to be prohibited, as noted today by Josh Gerstein in Politico. Certainly a reporter for a national news organization is a member of the news media, but what about a blogger who produces original reporting? Or a tweeter who spreads previously undisclosed information?
Nor is the term “classified information” defined in the new bill as precisely as one would wish. By contrast, the Freedom of Information Act, for example, limits withholding of information on national security grounds to records that are “properly classified.” Merely being “classified” is not enough to warrant an exemption from disclosure under FOIA. (In a pending lawsuit, a court has ordered the US Trade Representative to publicly release a classified document that the court said was not properly classified. The government has so far refused. Which position is “authorized”?)
The new Senate bill does not make any practical distinction between properly and improperly classified information, though it directs the DNI to address the issue in a report to Congress (section 504).
In fact, the very concept of an “unauthorized disclosure” is not clearly articulated in the bill. What is it, exactly? Though the answer may seem obvious, it is actually subject to conflicting interpretations.
According to a May 8, 2004 FBI interview with then-Vice President Dick Cheney, “it is possible to talk about something contained in a classified document without violating the law regarding declassification [sic].”
“For example, the Vice President has made numerous public statements about Iraq’s weapons of mass destruction which were based on and, in some cases tracked, his reading of classified information…,” according to the FBI record of the interview.
“However, he did not violate any relevant laws or rules in making these statements because he did not reveal the confidential sources or methods involved in gathering the classified information,” the Vice President told the FBI (at p. 26).
“Vice President Cheney advised that he believed it was justifiable to rely on classified information to shape and inform what one says publicly.”
This is not a particularly orthodox view of classification policy. But would such reliance on classified information in public statements constitute an unauthorized disclosure in the eyes of the Senate Intelligence Committee? It’s unclear.
In any event, the Senate Intelligence Committee bill would not apply to White House officials [see correction below]. Nor would it penalize unauthorized disclosures originating in Congress.
The inconsistency in the Senate approach was highlighted today in two articles: “Bill to plug leaks doesn’t reach White House” by Josh Gerstein, Politico; and “Senate’s anti-leaking bill doesn’t address the real sources of information” by David Ignatius, Washington Post.
Correction While most of the proposed anti-leak measures apply to “elements of the intelligence community,” a few provisions such as Section 501 (requiring notification of authorized release of classified information) would apply to the entire executive branch, including the White House.