[Congressional Record Volume 160, Number 91 (Thursday, June 12, 2014)]
[Senate]
[Pages S3624-S3625]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           NATIONAL SECURITY

  Mr. WYDEN. Last night the Senate passed the Intelligence 
authorization bill, and it contains some very important provisions 
relating to whistleblowers. While Senator Collins is on the floor, I 
wish to commend her for her extraordinary work on this issue. She has 
been at this for years, and it is a pleasure to be able to team up with 
her in this effort. I think it is fair to say both of us are very 
appreciative of the work done by our chair, Senator Feinstein, who did 
so much to make this possible.
  I am going to be very brief. Chairman Harkin has some important 
remarks to make this morning. He graciously allowed me to go ahead of 
him.
  I wish to reflect a little bit on where we are with respect to 
whistleblowers and the ability of intelligence agency employees to 
speak out on matters that do not affect national security but are 
important to the debate about how to ensure our country resolutely 
fights terror and protects the public's right to know.

[[Page S3625]]

  I think it is fair to say--and I make this judgment on the basis of 
having been on the intelligence committee for 13 years now--that the 
very important and worthwhile efforts to protect our national security 
after the terrorists murdered more than 3,000 of our people on 9/11 
were also accompanied by a lot of overreaching by the intelligence 
leadership.
  In recent years I think it is fair to say reformers have made some 
real progress in our efforts to address that overreach, and now with 
the PATRIOT Act and other measures coming before us--and the country 
truly understanding what is at stake--I think it is going to be 
possible to make additional progress.
  The reason I have come to the floor to discuss whistleblowers and the 
ability of intelligence employees to speak out is a lot of the progress 
we have seen recently would not have happened without whistleblowers 
and without some of the intelligence agency employees who are willing 
to risk their very careers to draw attention to real and serious 
problems. I also make note of the fact that there were journalists, 
journalists who worked hard to report the facts responsibly to ensure 
an informed public debate that is so essential to our democracy.
  Here is why the whistleblower issue is so important: There are 
existing laws and regulations that say employees of American 
intelligence agencies who are concerned about possible misconduct, such 
as waste and fraud and illegal activity, are allowed to report that, 
and these laws and regulations lay out channels for doing it.
  The reality is these principles--and the idea is that if there is 
misconduct reported to one of these entities, the oversight entity 
would have some opportunity to do something about it. Unfortunately, 
reporting misconduct by your colleagues or by your agency does not 
always work out so well. That is why rocking the boat and reporting 
misconduct can sometimes be hazardous for an individual's career.
  If a government employee thinks about blowing the whistle on possible 
misconduct, but can see that their supervisor or someone in their chain 
of command is condoning or participating in that misconduct, the 
employee is rightly going to be concerned about possible retaliation 
and will not get that promotion and might not even be able to retain 
their security clearance.
  So title VI of this year's Intelligence Authorization Act strengthens 
the ability of those whistleblowers to come forward. It prohibits 
retaliation against intelligence whistleblowers who report misconduct 
using approved channels, and it includes disclosures to the Congress or 
to an inspector general. It requires the executive branch to establish 
an appeals process for whistleblowers who have their security clearance 
unjustifiably revoked. Establishing these protections in statute--in 
statute--in my view is an important advance forward. So we are making 
some progress there with respect to whistleblowers, but we are not 
doing so well with respect to making sure we are protecting the ability 
of our employees in the intelligence field to speak out.
  Recently the head of National Intelligence issued a new policy 
directive regarding agency employees' contact with the media. I will 
tell you, I am troubled by how sweeping in nature this is. At the 
outset, this is supposed to prevent disclosures of genuinely sensitive 
information. That is obviously an important goal, but it is also 
important to make sure that as we carry out that provision, we do not 
keep employees, for example, from being able to talk about 
nonclassified matters.
  The new policy makes it clear that intelligence agency employees can 
be punished for having ``contact with the media about intelligence-
related information.'' Make no mistake about it, that is so broad it 
could cover unclassified information. It does not lay out any limits on 
this extraordinarily broad term that I have described.
  For example, is an employee's opinion about the scope of the NSA's 
domestic surveillance activities intelligence-related information? Are 
publicly available assessments about developments in Syria or the 
Ukraine intelligence related? This new directive does not say that, but 
it certainly points in that direction.
  It becomes even more problematic if we read further down into this 
new policy and review the definition of the word ``media.'' It includes 
any person or entity ``engaged in the collection, production or 
dissemination to the public of information in any form related to 
topics of national security, which includes print, broadcast, film and 
Internet.'' This is extraordinarily broad. It goes well beyond 
professional news gatherers to include anyone who uses the Internet--
the Internet--to disseminate any information at all relating to 
national security topics. So if someone is an employee of an 
intelligence agency and if they have a family member who likes to post 
or retweet articles about national security, suddenly having a 
conversation with that family member about important issues, such as 
NSA surveillance or the war in Afghanistan, could lead to them getting 
punished for having unauthorized contact with the media, which this 
directive says ``will be handled in the same manner as a security 
violation'' regardless of whether any classified information is 
disclosed.
  So I am willing to give everyone the benefit of the doubt; that some 
of the authors of this policy did not intend to have this happen. I 
know that trying to make definitions of who is and is not a member of 
the media is going to be a challenge with these new media technologies, 
but that does not remove the fact that this policy is too broad, is too 
sweeping. It incorporates too much of what we want in Montana, in 
Oregon, which is to make sure our people can talk about the policy 
issues that afford them the information so they can cast a ballot.
  My hope is we can get this corrected because I think it is going to 
have a chilling effect on intelligence professionals who simply want to 
talk about unclassified matters on important national security issues--
such as how to reform domestic surveillance or whether our country 
should go to war.
  In closing--and I thank my colleague from Iowa--we have made 
progress. Back in 2012 there was an overly broad antileaks bill 
reported by the intelligence committee. It came out of the committee on 
a 14-to-1 basis. I was the opposing vote. At that time I knew it was a 
flawed policy, but I did not even know how flawed it was because we 
were not able at the time to talk to outside parties. When it was ready 
for the floor, the country and journalists and citizens saw how 
sweeping it was, saw how flawed it was and the damage it would have 
done, again, to discussing nonclassified matters, and we got it 
corrected, but suffice it to say, we are going to have a host of 
challenges in the years ahead. While we have won victories--such as 
against that overly broad antileaks policy, when we were able to derail 
what would have been the biggest invasion of privacy in our country's 
history, the Total Information Awareness Program, which was derailed 
because a young person in our office found a memo that demonstrated how 
sweeping it was--while we have made progress, we have a lot to do.
  We are in better shape this morning because of the passage of that 
intelligence authorization bill and the additional measure of 
protections for whistleblowers, and Senator Collins and the chair of 
the committee, Senator Feinstein, deserve enormous credit. But make no 
mistake about it; we have a lot of work to do, and certainly that new 
media policy that has come from the Director of National Intelligence--
that is so broad, so broad it could make it difficult to talk about 
unclassified matters on the Internet--is just one example of the kind 
of issue we are going to have to zero in on in the days ahead.
  I also note that our next speaker, Chairman Harkin, has been a great 
advocate on these kinds of issues as well.
  I thank him for his courtesy so I could go ahead.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.

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