Dept of Defense to Report on “Authorized Leaks”

A new Department of Defense directive requires the Pentagon to notify Congress whenever a DoD official discloses classified intelligence to a reporter on an authorized basis, or declassifies the information specifically for release to the press.

The new directive on “Congressional Notification for Authorized Public Disclosure of Intelligence Information” applies to all components of the Department of Defense.

It was issued last week — despite the government shutdown — in response to a provision in the FY2013 Intelligence Authorization Act (section 504) that was passed by Congress last year as part of an effort to stem leaks of classified information.

The Senate Intelligence Committee explained then:  “This provision is intended to ensure that the intelligence committees are made aware of authorized disclosures of national intelligence or intelligence related to national security that are made to media personnel or likely to appear in the press, so that, among other things, these authorized disclosures may be distinguished from unauthorized ‘leaks’.”

Notification to Congress is required whenever the intelligence that is disclosed “is currently classified or if it is declassified for the purpose of the disclosure,” the directive states.  The reporting requirement does not apply to regular declassification activities, or to releases under the Freedom of Information Act or through litigation.

The new requirement casts a spotlight on the anomalous category of authorized disclosures of classified information, which would normally be considered a contradiction in terms.

Although there is an allowance for emergency disclosures of classified information in order to address an imminent threat (section 4.2b of executive order 13526), there is no recognized authority for non-emergency disclosures of classified intelligence to the press or to anyone who does not hold a security clearance and who has not signed a non-disclosure agreement. (Perhaps a lawyerly reading of the executive order would say that the prohibition against unauthorized disclosures of classified information to an uncleared person does not apply if the disclosure is authorized.)

In any case, official disclosures of classified information to the press — sometimes described as “authorized leaks” — are known to occur with some regularity.

What is unclear is what impact, if any, the new DoD directive will have on daily interactions with the press.  Will the Secretary of Defense actually file a report to Congress if he privately reveals a classified fact to a reporter?  That’s a little hard to imagine, though that’s what the law demands.  Or will the new reporting obligation instead serve to discourage authorized leaks to the press?

Because Congress imposed a one-year sunset on its new reporting requirement, the new DoD directive will expire on January 14, 2014, three months from now, unless it is renewed.  It will be interesting to see if even a single report of an authorized disclosure of classified intelligence is filed by then.