Anti-Leak Measures in Senate Bill Target Press, Public

The Senate Intelligence Committee markup of the FY2013 Intelligence Authorization Act, which was officially filed yesterday, devotes an entire title including twelve separate provisions to the issue of unauthorized disclosures of classified information, or leaks.

But several of those provisions aim to disrupt the flow of unclassified information to the press and the public rather than to stop leaks of classified information.

As reported in the Washington Post today, one of the proposed measures (section 506 of the bill) would dictate that only agency leaders could present background briefings to the press.  Other agency personnel, such as intelligence analysts, would be barred from providing any background information to the press, even when such information is unclassified.

Background briefings are essential “because they help journalists understand the full context of a story, get key details right, and ensure that individuals or the United States as a whole will not be harmed by the publication of incorrect information,” according to the Sunshine in Government Initiative, a press advocacy coalition.

Questioned by the Post, Senate Intelligence Committee chair Sen. Dianne Feinstein acknowledged that she had no evidence that such briefings, which are prized by reporters as valuable sources of information, had contributed to unauthorized disclosures.  And yet they would be forbidden.

See “Anti-leak measure targets background briefings” by Greg Miller, Washington Post, July 31.

Other provisions in the new bill were also roundly criticized by public interest groups concerned with access to government information.

A provision to prevent former government officials from providing paid commentary to news media outlets on intelligence matters is very likely unconstitutional, said Kate Martin of the Center for National Security Studies in a new analysis of the bill.

“The over-breadth of this provision in prohibiting commentary and analysis even when no classified information is disclosed would violate the First Amendment,” Ms. Martin wrote. “Indeed the provision seems drafted in order to chill public discussion of information that is not classified rather than being narrowly tailored to simply target disclosures of classified information.”

Another provision (in section 511) would grant intelligence agency heads the authority to unilaterally revoke the pension of an employee if the agency head “determines” that the employee has violated his or her non-disclosure obligations.

This section “would give intelligence agency heads nearly unrestrained discretion to suppress speech critical of the intelligence community– even after an employee has resigned or retired from an intelligence agency– and to retaliate against disfavored employees or pensioners, including whistleblowers,” wrote the Project on Government Oversight and several other public interest organizations in an open letter to the Senate Committee yesterday.

Fundamentally, the Senate bill “changes the relationship between the press and the federal government,” according to the Sunshine in Government Initiative.

Drafted in secret and without the benefit of any public hearing, the Senate bill includes provisions that are “crude and dangerous,” the Washington Post editorialized today.

The bill was approved by the Senate Intelligence Committee by a vote of 14 to 1, with Sen. Ron Wyden in opposition.  The text of the bill is here.

The accompanying Committee report including commentary on each provision and Sen. Wyden’s dissent may be found here.