[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
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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
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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.