Secrecy legislation simply goes too far

December 3, 2012 

The Senate procedure that allows a single member to put a “hold” on legislation is not something we generally applaud. But Sen. Ron Wyden, D-Ore., has used this crude method to block the intelligence reauthorization bill for good reasons, ones that go to the heart of our democracy. The bill contains draconian and counterproductive measures to prevent the leak of government secrets.

The need for secrecy in national security and foreign policy is beyond doubt. At the same time, government officials must find ways to communicate sensitive information, a channel that is vital to public understanding of complex issues. This communication – sometimes in background briefings for reporters – can help Americans understand such difficult problems as fighting terrorism or combating cyberattacks.

The Senate legislation would take a meat ax to this process. It would prohibit anyone but the director, deputy director or public affairs representative of an intelligence agency from providing “background or off-the-record information regarding intelligence activities” to the media. The result would be a license for those at the top to do all the talking while lower-level experts or those with contrary opinions could be blocked.

Wyden, who was the only member of the Senate Select Committee on Intelligence to vote against the measure when it passed the committee in July, has pointed out that another section of the bill would give heads of various intelligence agencies the authority to take away pension benefits from an employee if they “determine” the employee has knowingly violated a nondisclosure agreement. How they would make the determination is not clear. Wyden said this provision could allow an agency head to punish employees even if the agency does not have the proof that could convict an employee in court. The provision also could deny due process, potentially to retaliate against whistleblowers, and might discourage good people from going into intelligence work.

Another flaw in the legislation is the restriction on intelligence officials from entering into contracts with “the media” to provide “analysis or commentary” on intelligence matters. Former intelligence officials would also be blocked for a year after leaving office. All the officials covered by this provision are already bound not to disclose secrets. What the bill would do is simply remove their voices from vital public policy debates.

In announcing his hold, Wyden noted that his father, a journalist, had often written about sensitive national security topics, including the Bay of Pigs invasion and how the United States came to build and use the first atomic bomb. “Accounts like these are vital to the public’s understanding of national security issues,” he said. We agree. The nation must have a strong process for secrets but must also, with equal vigor, protect the channels that keep us informed. It’s a delicate balancing act. This legislation goes too far in one direction.

Excerpts of newspaper commentary from around the country. The Washington Post

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