Taking a hammer to ‘leaks’

Last week, Sen. Ron Wyden (D-Ore.) placed a hold on the 2013 Intelligence Authorization Act, expressing legitimate concerns about provisions designed to plug leaks of classified information. Wyden rightly asked his colleagues to revisit provisions that “threaten to encroach upon the freedom of the press” and “reduce access to information that the public has a right to know.”

Wyden objects to three provisions. The most troubling would drastically reduce the number of background briefings provided by intelligence officials to the media by authorizing only a few specific officials to engage in such off-the-record exchanges. As news media groups have pointed out, the provision would curtail the sharing not only of classified information but of all information “regarding intelligence activities” — including nonsecret information that deserves to be aired.

The other two provisions cited by Wyden would be less burdensome on the news media but still lack compelling justification. One would prevent government employees with top-secret clearance from contracting with the news media to offer analysis or commentary on intelligence issues until a year after their departure from the government. The other would allow an intelligence agency to deprive an employee of pension benefits if the head of the agency determined that the employee had knowingly disclosed classified information. Wyden persuasively argues that the latter provision doesn’t afford employees adequate due process. ..

In addition, the intelligence bill includes a worrisome call for a reconsideration of long-standing Justice Department procedures providing a measure of protection for reporters’ confidential sources. Those policies, which have been followed by administrations of both parties, require investigators to make “all reasonable attempts” to obtain information from other sources before issuing a subpoena to a member of the news media. That’s a reasonable approach and shouldn’t be disturbed.

These provisions were added to the bill amid a congressional uproar over a series of news reports, apparently the result of leaks, detailing classified operations, including a U.S. cyber attack on Iran’s nuclear program and the use of a Saudi double agent to frustrate a plot to blow up an airliner bound for the United States. But it isn’t clear that the proposed changes would have prevented those disclosures.

There is a perennial tension between the government’s interest in protecting the confidentiality of intelligence operations and the news media’s responsibility, rooted in the 1st Amendment, to inform the American people about how their government is using (and sometimes abusing) its vast powers. The provisions in the intelligence bill would needlessly alter the balance between national security and a free press. Wyden’s hold underlines the need for his colleagues — including Sen. Dianne Feinstein (D-Calif.), chairwoman of the Intelligence Committee and a leader in the “anti-leaks” effort — to remove or significantly revise them.