[Intelforum] Secrecy News -- 04/05/11

Tue Apr 5 15:51:18 EDT 2011

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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

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.

	http://www.fas.org/irp/congress/2011_rpt/srpt112-12.pdf

"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 guidance to offer concerning the halting efforts in the
Intelligence Community to reduce overclassification.

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

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood at fas.org
voice:  (202) 454-4691
twitter: @saftergood