Q&A: Congress’ Controversial “Anti-Leaks” Proposal

Using resources and analysis from our friends at the Sunshine in Government Initiative (SGI), the Project On Government Oversight (POGO), and the Federation of American Scientists' Secrecy News, we've pulled together some general Q&As to help you understand why the "anti-leaks" proposal included in the Senate's 2013 Intelligence Authorization bill is bad for openness and accountability.

Q: Aren’t all leaks bad?

A. No. Some disclosures of classified information are critical to informing the public about the government's actions and policies. Sometimes these leaks benefit US interests; sometimes they help expose waste, fraud, abuse and illegality.

An informed public depends on many sources of information, not only those that are "authorized" by the government. A free press is only free to the extent that it can report all newsworthy information, including information that the government would prefer to withhold.

Q: Will the anti-leaks measure affect the quality of news I get?

A: Yes. According to SGI's analysis, the proposal would prevent important stories from reaching the public, and fundamentally changes the relationship between the press and the federal government. Two provisions of the proposal directly affect current and former government employees from helping reporters make sure their stories are thorough and accurate. These provisions limit the ability of former officials to provide expert analysis (Section 505 of Senate's 2013 Intelligence Authorization bill) and allow only high-level officials to give intelligence briefings (Section 506 of the Senate's 2013 Intelligence Authorization bill). The problem created by these two provisions is compounded by the lack of clarity in the definition of the terms used: Section 505 could be interpreted as banning all former government officials who had a security clearance from talking to the media — whether they are paid for their analysis or not; Section 506 could prevent low-level officials from repeating or summarizing what was said – classified or unclassified – at an authorized briefing.

Q: Doesn’t any release of classified information hurt national security?

A: The "anti-leaks" proposal fails to make any distinction between "classified information" and information classified under the current Executive Order. This is a critical distinction because of the federal government's ongoing struggle with overclassification. Estimates of the amount of material that is protected at a higher level than is really needed to protect national security from experts in national security and intelligence range from 50% to 90%.

Q: Why is taking away a suspected leaker's pension a bad idea?

A: Section 511 of the Senate's 2013 Authorization bill 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. This extreme approach would imperil the few existing safe channels for those in the intelligence community who seek to expose waste, fraud, abuse, and illegality. Conscientious employees or former employees considering reporting wrongdoing to Congress and agency Inspectors General, for example, would risk losing their pensions without adequate due process.

Q: What is an unauthorized disclosure?

A. It's unclear from the language in the bill what is meant by "unauthorized disclosure." Steve Aftergood at Secrecy News and Josh Gerstein at Politico have pointed out that there is no clear definition of “the news media” to whom unauthorized disclosures are to be prohibited. Certainly a reporter for a national news organization is a member of the news media, but what about a blogger who produces original reporting? Or a tweeter who spreads previously undisclosed information?

Q: Why does the anti-leaks measure need to be passed now?

A: It doesn't. As we have pointed out before, rushing an anti-leaks proposal into law runs the very real risk of setting bad policies in place that not only do not work but also endanger other critical national priorities. Congress should develop any such proposals carefully, with the maximum amount of public input.

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