The Sunshine in Government Initiative remains deeply concerned that legislation, passed by the Senate Select Committee on Intelligence on July 24, 2012, will significantly curtail what the public learns about news events and what the government is doing in the public’s name. On August 10, 2012, the SGI sent to the Committee the following letter and analysis of certain sections of Title V of the Senate Intelligence Authorization Act for Fiscal 2013 (S. 3454):
Dear Chairman Feinstein and Ranking Member Chambliss:
As representatives of news media organizations, we are writing to share our specific concerns with certain provisions in Title V of the Senate Intelligence Authorization Act for FY2013 (S. 3454), addressing “unauthorized disclosures of classified information.” We appreciate your and the Committee’s willingness to reevaluate Title V before the Senate reconvenes in September.
Careful and thoughtful deliberation is critical for legislation such as this that impacts the delicate balance between the government’s right to keep certain information secret to protect national security and the press’ right to gather news and inform citizens about what the government is doing in their name.
The news media are sensitive to concerns about harm that might result from reporting based on unauthorized disclosures of classified information. We believe the press should, and does, handle leaks responsibly. Journalists follow time-tested procedures to mitigate any potential harm when reporting stories that are based on classified information. We are deeply concerned that Title V as written will significantly hinder newsgathering and the public’s right to know.
We believe that three provisions of S. 3454 in particular – Sections 505, 506 and 508 – threaten the basic relationship between the government and the public, via the press, that has existed for generations and, while imperfect, serves our country well. These provisions significantly undermine common practice in reporting on national security issues of vital public interest and appear to be unconstitutionally vague and overbroad.
Following this letter is a detailed analysis of the three provisions’ impact on newsgathering. We look forward to working with you and your staff on these issues. They are vital to the security and health of our democracy.
To follow up on this letter, please contact Rick Blum, coordinator of the Sunshine in Government Initiative, at 571-481-9322 or rblum (at) sunshineingovernment.org.
The Sunshine in Government Initiative
Title V of S. 3454: The Senate Intelligence Authorization Act for Fiscal 2013 &
Impacts on the News Media
The Sunshine in Government Initiative
August 10, 2012
Section 505 bans certain current and former government employees
from consulting for the media.
Current government employees with an active security clearance are prohibited 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.
Section 505 is an overbroad provision that harms the news media’s – and thus the public’s – ability to benefit from the expertise of government officials, especially former government officials. This ban on “consultation” could be construed to reach beyond those receiving financial compensation, thereby potentially banning all communication between intelligence experts who have or recently had a security clearance and journalists.
This section also does not address the disclosure of classified information directly, but rather “analysis or commentary” “concerning” classified information that might already be in the public domain; and “concerning” is a vague and broad term that could encompass discussions that have only a tenuous relationship to classified intelligence activities. Former government officials, in particular, help journalists and the public – through their analysis and commentary – understand the full context of an issue and ensure that the details of a news story are accurate. Former government officials have also played an important role in educating the public and allaying fears during major national crises (e.g., September 11th terrorist attacks and subsequent anthrax attacks).
Finally, this provision implicates the First Amendment by being a prior restraint on former government officials’ speech without any justification for this highest of restrictions on speech.
Section 506 prohibits career officials from conducting background
or off-the-record press briefings on intelligence activities.
Section 506 permits only the director, deputy director or designated public affairs personnel to brief reporters on background or off-the-record “regarding intelligence activities.” An exception is made for “appropriate” intelligence agency employees to give “authorized, unclassified, on-the-record briefings to the media.”
This means that only the highest-level, often politically appointed, officials at an intelligence agency may brief the media on background or off the record based on classified or even unclassified information. The director would be prohibited from granting authorization to lower-level government employees, who often are subject-matter experts with more detailed day-to-day knowledge about an issue, to share with journalists on background or engage in off-the-record discussions of unclassified information. Lower-level employees may not even be able to repeat or summarize what was said at an authorized background or off-the-record press briefing.
Both government officials and journalists have used background and off-the-record briefings to their mutual benefit since the founding of our country. Both journalists and government officials request these briefings. Such briefings ensure that journalists have access to agency staff with the deepest knowledge of an issue and give the agency confidence that they are working with a well-informed press corps. While journalists often prefer that discussions with government officials occur on-the-record, this is not and never has been the reality of a government/free press relationship that has served the public for more than 200 years.
Background and off-the-record communications are critical 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 or sensitive information. Some news outlets have also asked, for example, for such a briefing before a foreign correspondent leaves to cover a conflict zone. The correspondent receives valuable information on the political, economic and security situation of the foreign country.
Additionally, fostering this sort of frank back-and-forth with the press allows government officials to field critical questions that may help refine a program or give them a preliminary sense of public opinion on an issue. And subject matter experts can share important information with the press without fearing for their security if their names are published following an on-the-record conversation.
We believe Section 506 would significantly constrain the flow of information from the government to the press – and thus the public – on important national security and other issues. This provision would drastically change a practice that has been a part of our democracy since the very beginning.
Section 508 threatens confidential sources by opening the door to weakening longstanding Department of Justice regulations governing compelled testimony from journalists.
Section 508 requires the Attorney General to submit a report on possible changes to the Department of Justice’s regulations related to issuing subpoenas to the news media (28 CFR 50.10(b)). We strongly caution against changing the regulations.
The Department’s regulations have been in effect for decades, as part of the post-Watergate reform efforts, and were the result of much discussion between law enforcement and the press when adopted – and have been since then. The regulations are critical to ensuring that the Department can investigate crimes without trampling on First Amendment rights. They reflect the Department’s due regard for the role of journalism in our system of government and ensure that journalists are the last resort, not the first, in governmental investigations.
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 to a journalist. These limitations are essential to buffer newsgathering from government overreaching and to protect confidential sources that might provide information to the news media – and thus to the public – that is of vital public interest. These two key components, in particular, should not be changed or eliminated.
The Department’s regulations, of course, apply only to the Department’s issuance of subpoenas to journalists. The Committee may want to consider applying consistent standards to all litigants in all judicial circuits. A legislative solution to our patchwork quilt of inconsistent standards already exists in the form of the Free Flow of Information Act (S. 448, 111th Congress). With carefully crafted national security exceptions, the “shield” bill would inform prosecutors, civil litigants, members of the press and government employees as to when it is appropriate to issue a subpoena to compel a journalist to reveal a confidential source.
The Free Flow of Information Act had bipartisan support, passed the House twice (110th and 111th Congresses) and passed the Senate Judiciary Committee (111th Congress), and had the support of both the Director of National Intelligence and the Attorney General in 2009. We encourage the Committee to consider this legislation as a way to improve investigations of leaks of classified information rather than endorsing unilateral changes to internal Department of Justice regulations in this area.