Secrecy News -- 07/26/12

Thu Jul 26 06:31:11 PDT 2012

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SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 75
July 25, 2012

Secrecy News Blog:  http://www.fas.org/blog/secrecy/

**     SENATE INTEL COMMITTEE ADOPTS A DOZEN ANTI-LEAK MEASURES

SENATE INTEL COMMITTEE ADOPTS A DOZEN ANTI-LEAK MEASURES

The Senate Intelligence Committee's markup of the 2013 intelligence
authorization bill includes 12 provisions that are intended to combat
unauthorized disclosures of classified information.

	http://www.fas.org/irp/congress/2012_cr/ssci-leaks.pdf

The proposed steps, which are of varying weight and severity, include:

*  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

*  a requirement to establish formal procedures for leak investigations

*  a requirement to assess procedures for detecting leaks, including
expanded use of polygraph testing in other parts of the executive branch

*  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

*  a requirement that only certain designated intelligence community
officials may communicate with the media

*  a requirement for all intelligence community employees to report any
contacts with the media

*  a requirement for the Attorney General and the DNI to submit a report
to Congress on possible improvements to current procedures governing leak
investigations

*  establishment of provisions to require surrender of federal pension
benefits as a penalty for unauthorized disclosures

*  a provision to prohibit security clearances for individuals who make
unauthorized disclosures of covert action information

"The culture of leaks has to change," said Committee Chair Sen. Dianne
Feinstein in a news release. "Leaks of classified information regarding
intelligence sources and methods can disrupt intelligence operations,
threaten the lives of intelligence officers and assets, and make foreign
partners less likely to work with us."

	http://www.fas.org/irp/news/2012/07/ssci072512.html

In several respects, the proposed new measures are not a dramatic
departure from the status quo.  Unauthorized disclosures are already barred
by non-disclosure agreements that all cleared personnel must sign.  
Unauthorized contacts between intelligence personnel and the press are
already discouraged or prohibited.  The Director of National Intelligence
has already ratcheted up leak investigations and started an insider threat
detection program.

Significantly, the proposed anti-leak provisions would not amend the
Espionage Act.  They would not make all disclosures of classified
information a felony.  They would not impose restrictions on the
unauthorized receipt of classified information, or penalize publication of
such information (although one provision invites the Attorney General to
reconsider limitations on subpoenas to members of the media).

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.

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.  

Most fundamentally, the Committee's new draft legislation errs by treating
"classification" as a self-validating category -- i.e., if it's classified,
it warrants protection by definition -- rather than as the flawed
administrative instrument that it is.  

As far as the Committee is concerned, the unauthorized disclosure of any
classified information -- even the substance of a constitutional violation
that was recently committed by a US intelligence agency -- would constitute
a punishable offense, regardless of its public policy significance.

Last Friday, the DNI agreed to declassify the bare fact of such an actual
violation, in response to a request by Senator Ron Wyden (as reported by
Wired, but altogether overlooked in the Committee's latest report on FISA
last month).  This disclosure by the DNI would apparently trigger the
proposed new requirement to notify Congress of public releases of
intelligence information since it was "declassified for the purpose of the
disclosure" -- which is just silly.

	http://www.wired.com/dangerroom/2012/07/surveillance-spirit-law/

"The whole notion of classification in this building has degenerated into
a joke, most reporters and a lot of officials would agree," said Tony
Capaccio of Bloomberg News at a Pentagon press briefing on Tuesday.  He
asked how the Pentagon planned to distinguish between legitimate secrets
and spurious secrets when monitoring news stories for leaks.

	http://www.fas.org/sgp/news/2012/07/dod072412.html

"What steps are you going to be taking to make sure when you analyze these
news stories that it's really classified-classified versus B.S.-classified
information?"

"I don't have the answer yet, Tony," replied Pentagon press spokesman
George Little.

Neither does the Senate Intelligence Committee.

The full version of the FY2013 Senate intelligence bill and the
accompanying report is expected to be filed on Friday.  The proposed
anti-leak provisions "are the product of work over the past several weeks
within the Committee, in discussion with the Executive Branch, in
consultation with the House Intelligence Committee, and reflecting input
from nongovernmental organizations," according to the Senate Intelligence
Committee.

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood at fas.org
voice:  (202) 454-4691
twitter: @saftergood

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