[Congressional Record (Bound Edition), Volume 158 (2012), Part 11]
[Senate]
[Pages 15213-15214]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       INTELLIGENCE AUTHORIZATION

  Mr. WYDEN. Mr. President, the Senate is being asked today to approve 
the intelligence authorization bill for 2013 by unanimous consent. I 
believe that significant changes need to be made to this bill before it 
is passed, so I object to this unanimous consent request.
  When the Senate Intelligence Committee approved this bill in July, I 
was the only member of the committee to vote against it, and I would 
like to take a few minutes to explain my concerns, so that my 
colleagues who are not on that committee can get a better sense of what 
this debate is about.
  This bill contains a number of worthwhile provisions, and I wish that 
I had been able to support it. Unfortunately, it also contains several 
provisions that I find very troubling, all of them located in Title V 
of the bill. These provisions are all intended to reduce unauthorized 
disclosures of classified information, but I am concerned that they 
will lead to less-informed public debate about national security 
issues, and also undermine the due process rights of intelligence 
agency employees, without actually enhancing national security.
  I agree with my colleagues that unauthorized disclosures of national 
security information, which are also known as ``leaks,'' can be a 
serious problem. Unauthorized disclosures of sensitive information can 
jeopardize legitimate military and intelligence operations, and even 
put lives at risk. So I think it can be entirely appropriate for 
Congress to look for ways to help the executive branch protect 
information that intelligence agencies want to keep secret, as long as 
Congress is careful not to do more harm than good. I myself 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 in 
2010.
  So I am all for Congress recognizing that leaks can be a serious 
problem, and for doing things to show the men and women of the U.S. 
intelligence community that we recognize the seriousness of this issue. 
The problem, though, is that Congress can't actually legislate this 
problem away, and attempts to do so can have serious negative 
consequences.
  One of the best analyses I have seen of the problem of unauthorized 
disclosures was a report published last year by the National 
Intelligence University. The report observed that this problem has been 
around for several decades, and noted specifically that ``The relative 
consistency in the number of unauthorized disclosures over the past 30 
years demonstrates their persistent nature, independent of which 
political party controls the White House or Congress.'' This report, 
like a number of previous reports on the subject, also suggested that 
because it is very difficult to identify government employees 
responsible for disclosing classified information to the media, 
unauthorized disclosures are not a problem that can be solved with 
legislation.
  Again, this doesn't mean that Congress shouldn't try to find ways to 
help the executive branch when it can. But it does mean that Congress 
and the public should be generally skeptical of anti-leaks bills, and 
remember that not everything that is done in the name of stopping leaks 
is necessarily wise policy.
  In particular, I think Congress should be extremely skeptical of any 
anti-leaks bills that threaten to encroach upon the freedom of the 
press, or that would reduce access to information that the public has a 
right to know.
  As most of my colleagues are aware, my father was a journalist who 
reported on national security issues. Among other things, he wrote what 
many consider to be the definitive account of the Bay of Pigs invasion, 
as well as an authoritative account of how the U.S. came to build and 
use the first atomic bomb. Accounts like these are vital to the 
public's understanding of national security issues. Without transparent 
and informed public debate on foreign policy and national security 
topics, American voters would be ill-equipped to elect the policymakers 
who make important decisions in these areas.
  Congress, too, would be much less effective in its oversight if 
Members did not have access to informed press accounts on foreign 
policy and national security topics. And while many Members of Congress 
don't like to admit it, members often rely on the press to inform them 
about problems that congressional overseers have not discovered on 
their own. I have been on the Senate Intelligence Committee for 12 
years now, and I can recall numerous specific instances where I found 
out about serious government wrongdoing--such as the NSA's warrantless 
wiretapping program, or the CIA's coercive interrogation program--only 
as a result of disclosures by the press.

[[Page 15214]]

  With all of that in mind, I am particularly concerned about sections 
505 and 506 of this bill, both of which would limit the flow of 
unclassified information to the press and to the public. Section 505 
would prohibit any government employee with a Top Secret, compartmented 
security clearance from, and I quote, ``entering into any contract or 
other binding agreement'' with, quote, ``the media'' to provide 
``analysis or commentary'' concerning intelligence activities for a 
full year after that employee leaves the government. This provision 
would clearly lead to less-informed public debate on national security 
issues. News organizations often rely on former government officials to 
help explain complex stories or events, and I think it is entirely 
appropriate for former officials to help educate the public in this 
way. I am also concerned that prohibiting individuals from providing 
commentary could be an unconstitutional encroachment on free speech. 
For example, if a retired CIA Director wishes to publish an op-ed 
commenting on a public policy debate, I see no reason to try to ban him 
from doing so, even if he has been retired less than a year.
  I understand my colleagues' desire to prohibit unauthorized 
disclosures by retired officials, but these officials are already 
legally bound not to disclose classified information that they learned 
while in government service. And I would also note that this bill does 
not define who is and who isn't a member of the media, and that this 
ambiguity could present a variety of problems. When this bill was being 
considered in committee, I suggested that we get feedback from outside 
groups before we voted on it, so that we could address problems like 
this, and I hope that the committee will take that step in the future.
  Section 506 would also lead to a less-informed debate on national 
security issues, by prohibiting nearly all intelligence agency 
employees from providing briefings to the press, unless those employees 
give their names and provide the briefing on the record. The bill makes 
an exception for agency directors and deputy directors, and their 
public affairs offices, but no one else. It seems to me that 
authorized, unclassified background briefings from intelligence agency 
analysts and experts are a useful way to help inform the press and the 
public about a wide variety of issues, and there will often be good 
reasons to withhold the full names of the experts giving these 
briefings. I haven't seen any evidence that prohibiting the 
intelligence agencies from providing these briefings would benefit 
national security in any way, so I see no reason to limit the flow of 
information in this manner.
  The third provision that I am most concerned about is section 511, 
which would require the Director of National Intelligence to establish 
an administrative process under which he and the heads of the various 
intelligence agencies would have the authority to take away pension 
benefits from an intelligence agency employee, or a former employee, if 
the DNI or the agency head determines that the employee has knowingly 
violated his or her nondisclosure agreement and disclosed classified 
information.
  I am concerned that the Director of National Intelligence himself has 
said that this provision would not be a significant deterrent to leaks, 
and that it would neither help protect sensitive national security 
information nor make it easier to identify and punish actual leakers. 
Beyond these concerns about the provision's effectiveness, I am also 
concerned that giving intelligence agency heads broad new 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, particularly when the 
agency heads themselves haven't told Congress how they would interpret 
and implement this authority. As many of my colleagues will guess, I'm 
especially concerned about the rights of whistleblowers who report 
waste, fraud and abuse to Congress or Inspectors General.
  I outlined these due process concerns in more detail in the committee 
report that accompanied this bill, so I won't restate them all here. I 
will note, though, that I am particularly confused by the fact that 
section 511 creates a special avenue of punishment that only applies to 
accused leakers who have worked 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 national security information. I 
don't see a clear justification for singling out intelligence community 
employees with this provision, when there is no apparent 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.
  While I have a number of smaller concerns regarding the language of 
these anti-leaks provisions, the issues that I have just laid out 
represent my central concerns, and I hope that my colleagues now have a 
better sense of why I oppose this bill. I would add that my view seems 
to be widely shared outside of Congress, and that when USA Today ran an 
editorial criticizing these anti-leaks provisions, they couldn't find a 
single senator who was willing to publicly defend them.
  I know that the sponsors of this bill have worked hard on it, and I 
am still happy to sit down with them at any time to discuss my concerns 
in more detail, and help them make the major changes that I believe 
must be made before this authorization bill moves forward.

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