Outline of Problems with Leaks Provisions in the Intelligence Authorization Act for FY2013 (S. 3454)

Following is a section-by-section analysis of key provisions of Title V of S. 3454 that most directly impact newsreporting.  This analysis was originally prepared on July 29, 2012.

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A full Senate vote on the leaks provisions contained in Title V of the Intelligence Authorization Act for  Fiscal 2013 (S. 3454) is premature. The Senate Intelligence Committee approved the provisions on July 24 and about a week later released the text to the public.[1]  While the Committee appropriately avoided changes to the Espionage Statutes, the provisions represent far-reaching changes that affect newsgathering and the people’s right to know.  Congress and the public should have time prior to Senate action to debate the appropriateness of these changes, and, most importantly, to allow Congress to address flaws in the bill.  This legislation is not ready to be written into law.

Alternatively, Congress could use its authority to address these concerns without writing new laws that dramatically shift the delicate balance our country’s founders built between the government’s right to keep secrets to protect national security and the public’s right to know what the government is doing in its name. The Senate could remove Title V from S. 3454 — and certainly, in our view, must remove Sections 505, 506 and 508 of that Title —  to allow time for careful consideration of these proposals while the Senate moves forward with the intelligence authorization bill, more thoroughly vet these proposals through public hearings, and address concerns through its ongoing oversight activities.

Title V dramatically alters the public’s ability to stay informed of government actions, and would prevent important stories from reaching the public, including those that benefit U.S. interests.  In recent days, The Washington Post published a story showing that over the last decade Iran dramatically strengthened its ability to attack U.S. warships in the Persian Gulf (Joby Warrick, “Iran Bolsters retaliation capability in Persian Gulf, experts say,” The Washington Post, July 27, 2012, page A1).  That story was based in part on sources inside and outside government who preferred to speak without their names being used. The public should have a realistic sense of Iran’s intentions and capabilities, and reporting based on unauthorized disclosures was necessary to tell the story without disclosing information that would clearly harm the United States or aid foreign nations.

Among our broad concerns are that Title V:

  1. Changes the relationship between the press and the federal government.
  2. Cuts off factual, authorized background briefings based on classified or unclassified information.
  3. Inappropriately treats “the media” as a special class by banning current and former government officials from consulting for the media, which allows for more accurate reporting these issues.
  4. Uses broad, overlapping terms (“national intelligence” or “intelligence related to national security”) without specific definitions in a manner that is likely to create more uncertainty about what a government official can and cannot say.  Furthermore, this title refers to “classified information” without requiring explicitly that the material be properly marked “classified,” meaning a person could face penalties for releasing unmarked documents they genuinely considered unclassified. Both of these issues increase the likelihood of selective enforcement under this Title.

More specifically, we are concerned that several sections in particular most directly impact news reporting.

1.  Section 505 bans consulting for the media.

Section 505 prohibits current government employees, contractors or advisory committee members from “entering into a contract or other binding agreement” with “the media” to help provide expert analysis or commentary on “matters concerning the classified intelligence activities” of the United States.  The ban extends to former government employees who have left within the last year and who had a top secret security clearance anytime in the three years prior to leaving the government.

Impact.  Section 505 is an overbroad provision that harms journalists’ and editors’ ability to consult with intelligence experts in order to get the story right and to ensure that publication will not in fact harm individuals or the United States as a whole. This provision also harms the public’s ability to benefit from the expertise of government officials, who provide valuable insights and context for news events while protecting operational details. This ban on “consultation” is even more problematic given that Section 505 is not expressly limited to those government officials who are paid by the media, thereby effectively banning all communication between government employees who have or had a security clearance and journalists. Additionally, “concerning” is a vague and broad term that could encompass discussions that have only a tenuous relationship to classified intelligence activities. Finally, Section 505 implicates the First Amendment by being a prior restraint on former government officials’ speech without any justification for this highest of restrictions on speech.

2. Section 506 eliminates background or off-the-record communications between the media and career intelligence experts in the government.

This section would do the most damage in cutting off responsible, insightful reporting to the public about world affairs.  Section 506 allows any “appropriate” intelligence agency employee to provide “authorized, unclassified, on-the-record briefings to the media.” However, only the Director or Deputy Director, or public affairs personnel designated in writing by the Director, may give background or off-the-record briefings “regarding intelligence activities” to the press.

Impact. Because only the highest-level officials at an intelligence agency may give background or off-the-record briefings to the media – containing either classified or unclassified information – this means that lower-level government experts, who often have more detailed day-to-day knowledge, will not be able to share with journalists on background or off-the-record classified or unclassified information – even with authorization. Lower-level employees may not even be able to repeat or summarize what was said at an authorized background press briefing. This would significantly constrain the flow of information from the government to the public on important national and international issues and drastically change current common practice. Background and off-the-record briefings are critical because they help the news media get the story right and ensure that publication will not in fact harm individuals or the United States as a whole.

3. Section 507 targets how officials handle classified information once they leave government and requires former government officials to report any and all contacts with the media. 

This section overreaches by requiring covered persons to report oral and written contact with the media, and extends pre-publication review of manuscripts to “anticipated oral comments” (subsection (a)(4) of Section 507).

The enforceability of this provision is questionable.  It sends a clear message that anticipated oral comments not specifically approved should be avoided.  Once again, this is an ill-considered provision that, at best, is an overbroad restriction on speech and, at worst, a clear prior restraint of that speech entirely.

4. Section 508 opens the door for other changes, such as making it easier to compel testimony from reporters.

Section 508 requires the Attorney General to submit a report on possible changes to the Department’s regulations related to issuing subpoenas to the news media (28 CFR 50.10(b)). While the DOJ can at anytime propose and enact changes to its news media subpoena regulations, it is inappropriate for Congress to suggest that the Department do so. These regulations have been in effect for over 30 years and were the result of much discussion between law enforcement and members of the press. The regulations are critical to ensuring that the Department can investigate crimes without trampling on First Amendment rights. Two key components of the regulations are that the Attorney General must personally approve all subpoenas to journalists and alternative sources of information must be pursued before a subpoena can be issued. Such limitations are important to buffer newsgathering from government overreach and to protect confidential sources that might provide information to the news media – and thus to the public – that is of vital public interest.

5. Section 511 revokes a government employee’s pension benefits.

A long-time government employee could have his or her pension benefits revoked for disclosing classified information. This is a harsh punishment, especially for someone who has loyally served our country and who may make a disclosure that he or she believes is in the public interest. This section makes no accommodation for disclosures of classified information that, for example, reveal illegal conduct by the government or reveal government waste. Moreover, this section does not allow for judicial review before such a harsh penalty can be applied. The Director of National Intelligence or the head of an agency may simply make a determination and the conclusion is final without any ability for administrative appeal or to go before a federal judge. This severe penalty will harm newsgathering by chilling communication between government employees and journalists about information of vital public interest.

[1] The text was subsequently released on the Committee’s website and is available at http://intelligence.senate.gov/pdfs112th/s3454.pdf.  The committee report on S. 3454 is available at http://intelligence.senate.gov/pdfs112th/112192.pdf.

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