Intel Committee’s anti-leaks proposals a threat to think tanks & public discourse

Think tanks could have a hard time finding experts able to contribute to policy debates if anti-leaks proposals now before the Senate are enacted into law.  These proposals are ill-considered, relatively unvetted, vague, overreaching (and under-reaching at the same time) and require significant further consideration by Congress before moving forward, much less passage.  We hope that think tanks will join those already seeking the removal of Title V from the Intelligence Authorization Act for Fiscal Year 2013 (S. 3454).

Under Section 505 of this legislation, those experts could be barred from consulting for or even being employed by a think tank to work on national security and foreign policy issues.

This provision is only one of nearly a dozen anti-leaks provisions the Senate Intelligence Committee assembled and approved in a matter of a few weeks.  Sections 505 and a separate provision (Section 506) banning nearly all background briefings are overbroad and should be removed from the bill.

Section 505 of S. 3454, sponsored by Senator Dianne Feinstein, would ban certain federal government persons from entering into

a contract or other binding agreement with the media in order to provide, or otherwise assist in providing, analysis or commentary on matters concerning the classified intelligence activities of any element of the intelligence community or intelligence related to national security, as defined in section 3(5) of the National Security Act of 1947 (50 U.S.C. 401a(5)).

Those covered by the ban include any current federal government employee, officer or contractor with an active security clearance; any member of an advisory board of the intelligence community with an active security clearance; and former government employees, officers, contractors, or former intelligence advisory board members, who had top secret clearance anytime in the last three years of government service.  The ban applies for one year after the person leaves government service.

The hasty origins of these provisions are apparent in the final product. Key details aren’t addressed; unintended consequences abound. For instance, the legislation does not define “the media.” This is understandable, because defining who qualifies as “the media” is difficult to do. But the effect is to create an overbroad and unconstitutionally vague restriction on speech for any covered individual or entity that disseminates information to the public.  It could be through a website, blog, Facebook or even Twitter.  The ban would cover any comments on a foreign policy or national security issue where the U.S. is actively engaged in intelligence activities.

The drafters might argue while the prohibition is broad they are targeting only a subset of such commentary, but the law doesn’t work when it is applied to some but not others.  And there is precedent for the government labeling think tanks as part of “the media,” such as when providing fee waivers under the Freedom of Information Act.  Nonprofits and research centers such as the Center for Public Integrity, Electronic Privacy Information Center and National Security Archive have routinely qualified as “media” for purposes of this fee waiver.

The bottom line is this: Any type of analysis or advice by a covered person – whether it’s shared online or in print, widely disseminated or held close – will run afoul of Section 505. Even on matters already publicly known and not classified. For this reason alone, the provision should be dropped.

Yet this particular anti-leaks proposal has other flaws.

For instance, the lack of any definition of the term “binding agreement” is also overbroad.  Again, the drafters of Section 505 probably intended for this to apply to a very different – and much narrower – sphere of situations completely unrelated to think tanks.  But, once again, they have missed their mark entirely.    There is no qualification to the words “binding agreement” that limit the term in any way, such as to paid consultancies.  Even an academic or policy-based article that might be used to better inform the government itself could be prohibited.  As we mention at the outset of this post, it could also run so broad as to prevent a binding employment agreement if part of that new hire’s duties are to write the sort of analytical memoranda or blog posts found online, in magazines and at think tanks around Washington, DC, or even to give advice to others on staff who are preparing them.

This could rob both policymakers and the general public of significant and helpful analyses on key issues.  And it would cover people who have valuable insights and unclassified commentary.  Frances Townsend helped lead homeland security efforts in the administration of George W. Bush and is a current member of the CIA advisory board.  Her commentary provides valuable insights on global events.  Journalist John Miller, one of a few American journalists who interviewed Osama bin Laden before 9/11, has covered terrorism issues as a journalist and helped protect communities in various homeland security roles in government.  His insights helped the public understand who was behind 9/11 and the terrorist threat facing the U.S. since then.  The proposals could stifle their voices on matters of public interest.

Other sections are at least equally objectionable.  Section 506 would ban a valuable way for the public to find out about world events and U.S. efforts to influence global affairs. That section would bar any employee of an intelligence agency from conducting a background briefing with the media, which you’ll recall includes think tanks.  An exception would be made for the director, deputy director and press officer of those agencies.

Interactions solely on an unclassified basis with employees within intelligence agencies are crucial to provide the kind of expert knowledge of a region or the political dynamics of a crisis that the public expects to find from news reporting.  Reporters engaging in these briefings and covering national security issues generally are careful to understand the potential harm caused by disclosures of certain sensitive information, and are careful to consider the government’s reasons for withholding certain details.  Such briefings and interactions are crucial for the public to understand world events and U.S. policy choices.

Any effort to pass new laws altering the delicate tensions between transparency and secrecy on national security and foreign affairs matters should be carefully and thoroughly considered.  Think tanks are vital for the government to gain ideas and perspectives in policy debates and for the public to better understand world events and our government’s actions.  These proposals would dramatic alter the relationship between think tanks and both the government and public.  The Senate Intelligence Committee should halt its push for anti-leaks legislation, or alternatively drop Sec. 505 and 506 to give time for careful consideration before asking Congress to act.