[Congressional Record Volume 157, Number 48 (Tuesday, April 5, 2011)]
[Senate]
[Pages S2127-S2128]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       NOTICE OF INTENT TO OBJECT

  Mr. WYDEN. Mr. President, I would like to briefly address the 
intelligence authorization bill for fiscal year 2011, which has now 
been reported by the Intelligence Committee. I filed additional views 
to the committee report accompanying the bill, and my remarks today 
will include a brief summary of those views.
  I have now been a member of the Senate Intelligence Committee for 
over a decade--Senator Feinstein, Senator Rockefeller and I all began 
serving on the committee at the beginning of 2001, which I believe 
makes us the committee's longest-serving current members. In my time on 
the committee, I have become quite familiar with the intelligence 
authorization process.
  It has now been almost 7 years since an intelligence authorization 
bill was signed into law during the fiscal year it was intended to 
cover, and although the 2011 fiscal year is now over halfway over, 
Congress still has an opportunity to provide useful guidance and 
direction regarding intelligence spending for this fiscal year. The 
fiscal year 2011 intelligence authorization bill is the product of 
substantial labor by both Chairman Feinstein and Vice Chairman 
Chambliss, as well as their respective staff, and I commend them both 
for their efforts and for the bipartisan manner in which they have 
worked to put it together.
  Unfortunately, I have very serious concerns about one provision of 
this bill, and that is why I voted against it during the committee 
markup last month.
  Section 403 of this bill would authorize the Director of National 
Intelligence, DNI, to establish an administrative process under which 
the DNI and the heads of the various intelligence agencies would have 
the authority to take away the pension benefits of an intelligence 
agency employee, or a former employee, if they ``determine'' that the 
employee has knowingly violated his or her nondisclosure agreement and 
disclosed classified information.
  I share my colleagues' frustration regarding unauthorized 
disclosures, or ``leaks,'' of classified information. Leaks are a 
problem that has plagued intelligence agencies throughout modern 
history--they can undermine intelligence operations, jeopardize 
intelligence sources and methods, and have a terrible impact on the 
lives of covert agents who are publicly exposed. Every Member of 
Congress, myself included, wants to find new ways to identify and 
appropriately punish individuals who illegally disclose classified 
information. I personally spent 4 years working on legislation to 
increase the criminal penalty for people who are convicted of 
deliberately exposing covert agents. And I am proud to say that with 
help from a number of my Republican and Democratic colleagues, this 
legislation was finally signed into law last year. So I don't take a 
backseat to anybody when it comes to getting tough on leaks.
  I agree that increasing penalties for particular offenses can 
sometimes have a deterrent effect on those who might otherwise be 
tempted to leak, so I support the creation of new consequences for 
individuals who have been convicted of illegally divulging classified 
information. But when it comes to leakers, the biggest challenge is not 
determining how to punish them as much as it is identifying who they 
are.
  Given these challenges, my concern is that giving intelligence agency 
heads the authority to take away the pensions of individuals who 
haven't been formally convicted of any wrongdoing could pose serious 
problems for the due process rights of intelligence professionals, and 
particularly the rights of whistleblowers who report waste, fraud and 
abuse to Congress or inspectors general.
  Section 403--as approved by the Select Committee on Intelligence--
gives intelligence agency heads the power to take pension benefits away 
from any employee that an agency head ``determines'' has knowingly 
violated their nondisclosure agreement. But as I pointed out to my 
colleagues during the committee markup of this bill, neither the DNI 
nor any of the intelligence agency heads have asked Congress for this 
authority. Moreover, as of today none of the intelligence agencies have 
officially told Congress how they would interpret this language.
  It is entirely unclear to me what standard agency heads would use to 
``determine'' that a particular employee was guilty of disclosing 
information. It seems clear that section 403 gives agency heads the 
power to make this determination themselves, without going to a court 
of law, but the language of the provision provides virtually no 
guidance about what standard should be used, or even whether this 
standard could vary from one agency to the next. And no agency

[[Page S2128]]

heads have yet told Congress what standard they believe they would be 
inclined or required to use. This means that if an agency head 
``determines'' that a particular individual is responsible for a 
particular anonymous publication, he or she could conceivably take 
action to revoke that individual's pension benefits even if the agency 
does not have enough proof to convict the employee in court.
  Section 403 states that agency heads must act ``in a manner 
consistent with the due process and appeal rights otherwise available 
to an individual who is subject to the same or similar disciplinary 
action under other law.'' But federal agencies do not normally take 
away the pension benefits of former employees unless they are convicted 
of a crime or begin openly working for a foreign government. I do not 
believe that this ``otherwise available'' language is intended to 
require the government to get a criminal conviction, but beyond that I 
am not at all sure what impact this language is supposed to have and I 
am not sure that the various intelligence agency heads will know what 
it means either. This only increases my concern that this provision 
could be used to undermine or violate the due process rights of 
intelligence agency employees, with a corresponding impact on their 
family members and dependents.
  I am also especially troubled that section 403 is silent regarding 
disclosures to Congress and inspectors general. Everyone hopes that 
intelligence agency managers and supervisors will act honorably and 
protect whistleblowers who come forward and go through proper channels 
to report waste, fraud and abuse in national security agencies, but 
this is unfortunately not always the reality. There are existing laws 
in place that are intended to protect whistleblowers who provide 
information to Congress and inspectors general--and I believe that 
these laws should be strengthened--but section 403 does not specify 
whether it would supersede these existing statutes or not. I know that 
none of my colleagues would deliberately do anything to undermine 
protections for legitimate whistleblowers, but I think it was a mistake 
for the Intelligence Committee to report this bill without hearing the 
intelligence agencies' views on whether or not they believe that 
section 403 would impact existing whistleblower protections.
  It is unfortunately entirely plausible to me that a given 
intelligence agency could conclude that a written submission to the 
congressional intelligence committees or an agency inspector general is 
an ``unauthorized publication,'' and that the whistleblower who 
submitted it is thereby subject to punishment under section 403, 
especially since there is no explicit language in the bill that 
contradicts this conclusion. Withholding pension benefits from a 
legitimate whistleblower would be highly inappropriate, but overzealous 
and even unscrupulous individuals have served in senior government 
positions in the past, and will undoubtedly do so again in the future. 
This is why it is essential to have strong protections for 
whistleblowers enshrined in law, and this is particularly true for 
intelligence whistleblowers, since, given the covert nature of 
intelligence operations and activities, there are limited opportunities 
for public oversight. But reporting fraud and abuse by one's own 
colleagues takes courage, and no whistleblowers will come forward if 
they do not believe that they will be protected from retaliation.
  Finally, I am somewhat perplexed by the fact that section 403 creates 
a special avenue of punishment that only applies to accused leakers who 
have worked directly for an intelligence agency at some point in their 
careers. There are literally thousands of employees at the Departments 
of Defense, State and Justice, as well as the White House, who have 
access to sensitive information. Some of the most serious leaks of the 
past few decades have undoubtedly been made by individuals working for 
these organizations. I do not see an obvious justification for singling 
out intelligence community employees, particularly in the absence of 
evidence that these employees are responsible for a disproportionate 
number of leaks. And I am concerned that it will be harder to attract 
qualified individuals to work for intelligence agencies if Congress 
creates the perception that intelligence officers have fewer due 
process rights than other government employees.
  Withholding pension benefits from individuals who are convicted of 
disclosing classified information will often be an appropriate 
punishment. This punishment is already established in existing laws, 
and I would be inclined to support efforts to clarify or strengthen 
these laws. But I am not inclined to give agency heads broad authority 
to take away the pensions of individuals who have not been convicted of 
wrongdoing, particularly when the agency heads themselves have not even 
told Congress how they would interpret and implement this authority. 
This is why I voted against this authorization bill. All of my 
colleagues and I agree that illegal leaks are a serious problem, but 
this does not mean that anything at all that is done in the name of 
stopping leaks is necessarily wise policy.
  I look forward to working with my colleagues to amend this bill, and 
I am hopeful that they will be willing to modify or remove section 403 
to address the concerns I have raised. In the meantime, I should be 
clear that it is my intention to object to any request to pass the 
current version of the bill by unanimous consent.

                          ____________________