SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 32
April 5, 2011

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

NEW LEAK PENALTIES PROPOSED IN SENATE INTEL BILL

The Senate Intelligence Committee is proposing to punish leaks of classified information by authorizing intelligence agencies to seize the pension benefits of current or former employees who are believed to have committed an unauthorized disclosure of classified information.

The pending proposal would "provide an additional administrative option for the Intelligence Community to deter leakers who violate the prepublication review requirements of their non-disclosure agreements," the Committee said in its new report on the FY2011 Intelligence Authorization Act.

"This option may require individuals to surrender their current and future federal government pension benefits if they knowingly violate the prepublication review requirements in their non-disclosure agreements in a manner that discloses classified information to an unauthorized person or entity."

But the premises of the new proposal are questionable and it has generated some controversy even within the Senate Committee itself.

The starting point of the Committee proposal is that leakers are rarely if ever punished. "A particular source of frustration has been that leakers are rarely seen to suffer consequences for leaking classified information." In fact, however, the number of ongoing leak-related prosecutions is currently at an all-time high.

Secondly, the Committee believes that existing administrative sanctions that stop short of criminal prosecution -- including "security clearance revocation, suspension, or termination" -- are inadequate and incomplete because they cannot reach persons who are no longer government employees. "Unfortunately, these sanctions are not generally available for use against a key source of leaks, former Intelligence Community employees." But it is not at all clear, and the Committee does not attempt to demonstrate, that former Intelligence Community employees are "a key source of leaks." In practice, the government already has strong legal authority to enforce prepublication review requirements, and the CIA is currently engaged in suing at least one of its former employees ("Ishmael Jones") for an alleged violation of those requirements.

Perhaps for those reasons and others, the Intelligence Community itself did not request the pension seizure authority that the Senate Intelligence Committee now proposes to bestow on it.

But the pending proposal may be worse than unnecessary, said Sen. Ron Wyden in a dissenting statement attached to the new Intelligence Committee report. He said it could discourage whistleblowers and impede congressional access to information.

"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," Sen. Wyden wrote.

"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 [this provision], 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," wrote Sen. Wyden, who voted against the pending bill.

Another provision of the bill calls for establishment of "an effective automated insider threat detection program for the information resources in each element of the Intelligence Community in order to detect unauthorized access to, or use or transmission of, classified information."

Setting aside the specifics of the proposals, the underlying message from the Senate Committee is that agencies should do even more, not anything less or different, to combat leaks of classified information. The Senate Committee was silent on other aspects of classification policy. In particular, it had no guidance to offer concerning the halting efforts in the Intelligence Community to reduce overclassification.

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

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