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Diverting the avalanche of leaks: a (temporary) win for responsible news coverage

AP Photo by J. Scott Applewhite Sen. Dianne Feinstein, D-Calif., center, chair of the Senate Intelligence Committee, is flanked by…

AP Photo by J. Scott Applewhite

Sen. Dianne Feinstein, D-Calif., center, chair of the Senate Intelligence Committee, is flanked by Sen. Saxby Chambliss, R-Ga., right, and, House Intelligence Committee Chairman Mike Rogers, R-Mich., left, as they face reporters on Capitol Hill after a meeting on national security leaks in Washington, D.C.

Last year, media groups fought hard to defend the flow of news on national security and foreign affairs. The Senate Intelligence Committee tried and ultimately dropped an effort to redraw the line on unauthorized disclosures, but the underlying concerns persist. It amounted to the biggest challenge in a decade to the delicate if sometimes tense relationship between the government and journalists on “leaks.” And the next time it may be worse.

Western governments spoiled a plot to set off a bomb in an airliner headed for the U.S. The U.S. and Israel were behind a computer virus targeting Iran’s nuclear program. The president keeps a “short leash” when the U.S. conducts drone strikes, personally approving targets.

Those stories and others made headlines last year. And they triggered the strongest push in a decade to rewrite the line between secrecy and news reporting on national security and foreign affairs matters. While those pushing to keep secrets better in the name of national security dropped their efforts in the face of strong headwinds, the underlying tensions persist and the new Congress may contemplate moving the line even more against transparency.

When the reports came out last spring, they were particularly startling to Dianne Feinstein (D-Calif.), chairman of the Senate Select Committee on Intelligence. Decrying an “avalanche of leaks,” she made a public vow to end it.

In early June 2012, Feinstein held a rare joint press conference with ranking Republican Sen. Saxby Chambliss (R-Ga.) and the Republican and Democratic leaders of the House Permanent Select Committee on Intelligence, Chairman Mike Rogers (R-Mich.) and C.A. “Dutch” Ruppersberger (D-Md.). All four spoke of the serious nature of recent leaks and the importance of congressional action. They vowed to work together to discuss legislation. That press conference started an effort that, if successful, would have remade in a short few weeks how the intelligence community interacts with the press on national security and foreign affairs topics.

Media groups in the Sunshine in Government Initiative (SGI), along with other media organizations, actively engaged the congressional intelligence committees and others on Capitol Hill. In a letter to the intelligence committees and in follow up meetings, we urged that any changes affecting the flow of news to the public on national security and foreign affairs matters should first go through public hearings and be carefully drawn. The complexities involved in updating the Espionage Statutes, for example, should require careful consideration with legal scholars, security experts, media practitioners and others. We urged Congress to proceed cautiously.

On July 24, 2012, the Senate Intelligence Committee approved a dozen “anti-leaks” proposals as part of Title V of the S. 3454, the Intelligence Authorization Act for 2013, without releasing the text to the public ahead of its vote. The package especially targeted background briefings and routine conversations between expert commentators and sources within government.

Two sections in particular would have the biggest impact on newsgathering. Section 505 would have banned former government employees who held top-secret clearances at any time in the previous three years from “entering into a contract or other binding agreement” with “the media” for a year after leaving the government’s payroll to help provide expert “analysis or commentary on matters concerning the classified intelligence activities” of the United States.

Media groups in SGI wrote in a letter to the Senate Intelligence Committee that the provisions focused on restricting “analysis and commentary” on matters that concerned classified activities, even if the expert analyst never revealed classified information or even had possession of classified information. In addition, SGI noted the cost of such restrictions. Analysts provide timely context to current international events, and this provision would have a dramatic chilling impact on the flow of news to the public.

Perhaps even worse for newsgathering than a vague, overbroad ban on commentary and analysis about anything “concerning” classified government activities was Section 506, which banned all background briefings to reporters “regarding intelligence activities” except for an agency director, deputy director, or designated public affairs official. This would have ended a common practice initiated by government agencies and news media to have unclassified conversations with intelligence experts to help the public understand current trends and events, and help inform a journalist’s reporting.

From a media perspective, these and the other proposals simply went too far across a line that the nation’s founders drew between the government’s responsibility to keep secrets as it protects national security and the public’s right to know what the government is doing. At the same time, there was a bright side: the proposals avoided dealing with the Espionage Statutes, a recognition perhaps of the difficulty of the task in the short timeframe the committee had before it.

Backers of the anti-leaks provisions had a lot going for them. Democrats and Republicans shared concerns about leaks and forged bipartisanship on the committee. Feinstein’s committee was about to start debating the Intelligence Authorization Act for Fiscal 2013, so it had a legislative vehicle for passing its reforms. Feinstein could point to precedent for using the authorization bill to address leaks. In 2000, President Clinton vetoed the intelligence authorization bill for Fiscal 2001 due to a provision that would have criminalized any disclosure of classified information, a major shift in the delicate balance the founders struck between the government’s right to keep secrets in the name of national security and the public’s right to be informed of what government is up to. (The spending bill was later enacted without that provision.)

Editorial boards spoke out against the provisions, and SGI groups met with many offices on Capitol Hill to express our concerns.

In the end, the proposals ran into strong opposition from influential senators, including Senator Ron Wyden (D-Ore.), who publicly placed a hold on the bill. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) made known his objections and concerns as chairman of the Senate Judiciary Committee, and Senate Majority Leader Harry Reid (D-Nev.) insisted the controversy over the provisions in Title V be addressed before he would allow the bill to come up for a vote by the full Senate. As time ran out on passing legislation, the controversial anti-leaks provisions were dropped to allow passage of the intelligence authorization bill. At the time, Senator Feinstein reiterated her concern that damaging leaks would continue unless something was done.

Bipartisan Concern about Leaks

Their efforts represented a new challenge for media groups. For years, freedom of the press advocates have argued that journalists who regularly cover national security and foreign affairs are careful to mitigate possible harms from disclosure of certain details in stories. Best practices include listening carefully when the government claims a harm will result from publishing certain information in a story. In many cases the reporter can leave out a specific detail and still report the story. Such conversations are routine. And their success depends on communication between the journalist and the government official.

But Feinstein noted this process is flawed.

“People don’t know the whole story. And they inadvertently release something that appears to be harmless, that, in their judgment, is harmless, but I don’t know, puts them in the know or something like that. And you can piece it together and you can figure out where the individual is or who that individual is or where that individual works,” Feinstein said in an interview with CNN.

Feinstein may have had in mind the way news broke about the foiled bomb plot. According to news reports, The Associated Press learned that the U.S. and allied intelligence agencies disrupted a plot to blow up an airplane. In response to government concerns that disclosure would interrupt an ongoing operation, AP held the story for several days. Once assured the possible harm from disclosure no longer existed, AP was asked to hold the story until an official announcement from the White House the following day. AP refused, negotiations over the timing of the release stalled, and AP broke the story on May 7, 2012. (The Associated Press is a member of the Sunshine in Government Initiative.)

As news spread, John Brennan, a top White House national security advisor, gave a briefing to a small number of expert commentators during which he indicated that U.S. allies had “inside control” and the plot never endangered the public.

The incident became a topic of questioning when Brennan appeared before the Senate Judiciary Committee on Feb. 8 to be confirmed as the next director of the Central Intelligence Agency. Brennan insisted the conversation was appropriate and did not reveal classified information.

“We had inside control of the plot, which means any number of things in terms of environmentally, working with partners, whatever else. It did not reveal any classified information or reveal a source inside the operation,” Brennan said.

Brennan also explained these types of briefings, often held on background, were often relied upon to give context to events in a public format.

“Senator, frequently if there is some type of event — if there’s a disrupted terrorist attack, whether it’s some, you know, underwear bomber or a disrupted [improvised explosive device] or (inaudible) bomb or whatever else, we will engage with the American public. We’ll engage with the press. We’ll engage with individuals who are experienced professional counterterrorism experts who will go out and talk to the American public,” he said.

“We want to make sure that is not misrepresentations, in fact, of the facts, but at the same time do it in a way that we’re able to maintain control over classified material.”

Last year several bills were introduced in Congress to “modernize” the espionage statutes. One committee held a hearing on it. This year we have already seen Congress press the administration for more information about its counterterrorism strategy, including the use of drones. In his February State of the Union speech, President Obama vowed, “I will continue to engage Congress to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.” We are likely to see more debate about where to draw the line between secrecy and transparency on national security matters.

Media groups will have to work harder to preserve the flow of news to the public. We heard from journalists around the country throughout the debate about anti-leaks package last year. What became clear is that getting this right affects more than national security reporters in the nation’s capitol, but local reporters in state capitols and county seats covering homeland security challenges in their communities. Maintaining and strengthening the delicate and sometimes tense relationship between the media and government on national security and foreign affairs coverage affects every media market, every media outlet, and every member of our communities.

Rick Blum is the director of the Sunshine in Government Initiative, a coalition of media groups promoting open government policies and practices, of which the Reporters Committee for Freedom of the Press is a member.