Open government advocates oppose Senate's anti-leak measures passed with much secrecy

Emily Miller | Newsgathering | News | July 31, 2012

The U.S. Senate is expected to vote in the coming days on a controversial intelligence authorization bill, which was passed in a closed senate committee session last week. Journalists and advocates of government transparency are lobbying in opposition of the bill, which contains anti-leak provisions that could severely hinder the newsgathering process.

“They just released the bill text and report [Monday] and there are rumors of votes any day,” Sunshine in Government Initiative coordinator Rick Blum said. “The bill makes profound changes to how the public gets information about world affairs and what the U.S. government is doing. And the Senate Intelligence Committee is rushing these changes through without carefully considering the lasting impact these changes will have.”

The Senate Intelligence Committee approved the Intelligence Authorization Act for Fiscal Year 2013 without holding an open hearing on the bill, which was finally released on Monday and is now ready for floor vote in the full Senate.

Sophia Cope, the director of Government Affairs and Legislative Counsel for the Newspaper Association of America, said Sen. Dianne Feinstein (D-Calif.), the chairman of the Senate Intelligence Committee, wants to get the bill though with unanimous consent, meaning without needing a vote.

Sen. Feinstein's office said that "no decisions or actions about next steps have been taken."

The NAA and SGI, of which both the NAA and The Reporters Committee for Freedom of the Press are members, sent a memo to various staff in Senate voicing concern about the anti-leak provisions. The Washington Post published an editorial criticizing the bill and wrote in a July 30 article of its support of NAA's lobbying efforts.

According to the memo, the organizations are most concerned about a provision that prohibits background or off-the-record intelligence briefings to the media by career intelligence officials.

“We believe [the provision] would significantly constrain the flow of information from the government to the press -- and thus -- the public on important national security issues,” the memo stated. “Since the founding of our country, both government officials and journalists have used background or off-the-record communications to their mutual benefit. This provision would drastically change a practice that has been a part of our democracy since the very beginning.”

Under the bill, only the highest-level officials at an intelligence agency are permitted to provide background or off-the–record briefings “regarding intelligence activities” to the media. Furthermore, these officials cannot give lower-level government experts authorization to disclose classified or unclassified information.

“Such 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 information,” the memo stated. “One could argue that government officials benefit from this back-and-forth with the press on background or off-the-record as responding to critical questions may help refine a program or give them a preliminary sense of what public opinion might be.”

Another provision troubling the news media requires the Attorney General to submit a report on possible changes to the U.S. Department of Justice’s regulations related to issuing subpoenas to reporters. According to the memo, the provision “opens the door to making it easier to compel testimony from reporters.”

"These regulations have been in effect for decades and were the result of much discussion between law enforcement and members of the press," the memo stated. "The regulations are critical to ensuring that the Department can investigate crimes without trampling on First Amendment rights."

According to the memo, there are aspects of the regulations that should remain unchanged.

"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," the memo stated. "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."

The bill would also ban certain current and former government employees from "entering into a contract or other binding agreement" with the news media to discuss "matters concerning the classified intelligence activities" of the country.

NAA and SGI maintain in their memo that the ban is" a prior restraint on former government officials' speech without any justification for this highest of restrictions on speech." The open government advocates also note that "concerning" is a vague term that could include discussions that have questionable connections to classified intelligence activities.

Although the bill has not yet been approved by the full Senate, the Post has reported that the new language is under review by the House Intelligence Committee. The House passed its version of the Intelligence Authorization Act for Fiscal Year 2013 in May.

Related Reporters Committee resources:

· News: New intelligence rules emphasize lie detectors, more investigators in effort to limit leaks to news media

· News: Congressional committee holds hearing on national security leak prevention and punishment