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Steven Aftergood of Federation of American Scientists has a must-read analysis of the Senate Intelligence Committee's anti-leak proposals in the 2013 intelligence authorization bill.

Aftergood articulates beautifully the misdirection of Congress' approach to leaks, which attacks the messenger instead of listening to the message:

And yet there is something incongruous, if not outrageous, about the whole effort by Congress to induce stricter secrecy in the executive branch, which already has every institutional incentive to restrict public disclosure of intelligence information.

In an earlier generation of intelligence oversight, leaks led to leak investigations in executive agencies, but they also prompted substantive oversight in Congress.  When Seymour Hersh and the New York Times famously reported on unlawful domestic surveillance in December 1974, the urgent question in Congress was not how did Hersh find out, or how similar disclosures could be prevented, but what to do about the alarming facts that had been disclosed.

Even more hypocritical, the Senate Intelligence Committee, headed by Sen. Dianne Feinstein (D-CA), a staunch supporter of the intelligence community her committee is tasked with overseeing and herself a notorious "leaker," operates almost entirely in secret. Aftergood points to specifics:  
In contrast, while pursuing leaks and leakers, today’s Senate Intelligence Committee has not held an open public hearing for six months. The Committee’s investigative report concerning CIA interrogation practices from ten years (and two presidential terms) ago has still not been issued.  Upon publication — perhaps this fall — it will essentially be a historical document.
The Senate Intelligence Committee was created to oversee the intelligence community, not to assist the intelligence community in maintaining excessive secrecy. How most of the Senate Intelligence Committee's anti-leak provisions are complete bull after the jump.  

Aftergood summarizes selected anti-leak measures, which include:

[1] a requirement to notify Congress when intelligence information is disclosed to the public (outside of the FOIA or the regular declassification review process) and to maintain a record of all authorized disclosures of classified information
As I wrote yesterday, this provision reflects that Congress is less concerned about disclosures of classified information and the public interest than it is concerned about the fact that Congress does not get the "leaks" first.
[2] a requirement to establish formal procedures for leak investigations
This might be a good proposal considering the current, unpredictable, freelance approach to "leak investigations" usually ends with criminal investigations of whistleblowers (such as National Security Agency (NSA) whistleblowers Thomas Drake, Edward Loomis, J. Kirk Wiebe, William Binney, congressional staffer Diane Roark, and Central Intelligence Agency (CIA) whistleblower John Kiriakou) or with chilling monitoring of whistleblowers, reporters, and congressional staffers as with the recent Food and Drug Administration scandal. However, forgive my skepticism that the Senate Intelligence Committee will create whistleblower-friendly standards, especially considering that the fact that Drake brought his concerns to the congressional intelligence committees didn't save him from being prosecuted under the Espionage Act.
[3] a requirement to assess procedures for detecting leaks, including expanded use of polygraph testing in other parts of the executive branch
I've already written on Kos about why using polygraphs as the new anti-leak tool is ill-advised.
[4] a prohibition on cleared personnel (or formerly cleared personnel for up to a year after employment) serving as paid consultants or commentators to a media organization regarding intelligence matters
This is a cosmetic fix at best. A year is a pittance in the life of an intelligence professional looking to make a buck giving commentary.
[5] a requirement that only certain designated intelligence community officials may communicate with the media
All intelligence agencies already have such a designation - it's called a PR office. They also have regulations about contact with the media.
[6] a requirement for all intelligence community employees to report any contacts with the media
The Senate Intelligence Committee needs reminding that the First Amendment protects the freedom of the press, and that even intelligence employees have a First Amendment right to talk to the press about unclassified information.
[7] a requirement for the Attorney General and the DNI to submit a report to Congress on possible improvements to current procedures governing leak investigations
This seems a decent proposal, but if the reporting is to the Senate Intelligence Committee, chances are it will be secret, so the public will have no way of knowing if so-called "leak investigations" are being targeted against whistleblowers.
[8] establishment of provisions to require surrender of federal pension benefits as a penalty for unauthorized disclosures
The Senate Intelligence Committee tried this last year, and Senator Ron Wyden (D-OR) commendably succeeded in stopping the measure. If not aimed at silencing retired NSA whistleblowers like Bill Binney, Kirk Wiebe, Edward Loomis, and Thomas Drake, then this provision will certainly have a chilling effect on the next retired Intelligence Community employee brave enough to speak about about waste, fraud, abuse, or illegality she witnessed while in government. Considering the explosive disclosures Binney, Drake, and Wiebe have made since leaving the NSA, it is not in the public interest to silence them or other retirees who want to blow the whistle on government wrongdoing.
[9] a provision to prohibit security clearances for individuals who make unauthorized disclosures of covert action information
It is hard to believe such a provision is really necessary. Considering that the intelligence community yanks security clearances from whistleblowers for minor (and sometimes fabricated) infractions and then fights any measure of court oversight over security clearance decisions, it shouldn't be too hard to remove the clearances of officials who actually reveal covert actions.

The Senate Intelligence Committee's response to the "leak hysteria" in Washington is completely misguided. Instead of focusing on investigating things like whether the President should be permitted to maintain "kill lists" of people -- including Americans -- to assassinate without charge or trial, the committee is focusing on how the public found out about that information.

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Comment Preferences

  •  Tip Jar (20+ / 0-)

    My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

    by Jesselyn Radack on Fri Jul 27, 2012 at 06:36:39 AM PDT

  •  Where is outrage against kabuki anti-leak theater? (6+ / 0-)

    I find it telling that so many in this community hardly bother to post substantive comments when this diarist deftly dissects the absurdity and inanity and irresponsibility of the latest proposed anti-leak legislation.

    Why not?
    Have we become that cynical and jaded?

    Or are we once again caught up in the political theater of it all as spectators ensconced in our seats ringside, while the ring continues to serve as the proxy conflict for security versus liberty?

    Oversight of the secret side of government by the standing intel committees for the very reasons that brought them into existence - after the large scale abuse, illegalities, and violations of rights and freedoms against Americans in the 60s and 70s - has devolved into a servile mouthpiece and compliant surrogate for the national security state in further secrefying our own government.
    Piqued by leaks that were not first cleared with them, irrespective of the message let alone the content, has now simply become the excuse to propose legislation that would further codify the censoring of sources for unauthorized leaks, and going after the leakers, while ensuring the illegitimacy of whistleblowers within the national security establishment who will now more than think twice about disclosing any gov't illegality or wrongdoing within or outside the system or face the risk of professional suicide, absent any meaningful protections.
    More pernicious is the clear and compelling danger that this proposed legislation poses in the exercise of the 1st Amendment to address issues of fundamental public interest and concern.
    I fear that this legislation if passed and combined with what DoD and the intel establishment are already putting into place, will only enable more secrecy and classification - making government even less open and transparent.

    Is this the government we want to keep?

    "Truth is treason in the empire of lies." - George Orwell

    by Thomas Drake on Fri Jul 27, 2012 at 08:12:54 AM PDT

  •  how the public found out about that information (4+ / 0-)

    When a government worries about "how the public found out about that information" more than the information that become public is only another sign of how out of touch government is, how they fail us. Making us wonder why the hell did we send them to Washington, and why we keep sending the same out of touch idiots.

    Transparency is so elusive........

    "Who are these men who really run this land? And why do they run it with such a thoughtless hand? David Crosby.

    by allenjo on Fri Jul 27, 2012 at 09:29:33 AM PDT

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