[Congressional Record Volume 158, Number 166 (Friday, December 21, 2012)] [Senate] [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 security. 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 everything [[Page S8344]] 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 leakers. 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 bill. 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 people.'' 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 [[Page S8345]] 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.