Screen shot from C-SPAN of Sen. Feinstein discussing origin of recent "leaks"

(update below)

The Senate Intelligence Committee, chaired by Sen. Dianne Feinstein, has proposed multiple measures that the committee believes will go a long way toward preventing future leaks. However, the proposals, which have been included in an intelligence authorization bill for the next fiscal year, should be striking to people who have listened to hysterical cries about “leaks” posing risks to national security in the past months. None of the proposals, if signed into law, would apply to Congress or congressional staffers. Most of the proposed rules would also exempt the White House and various other Executive Branch officials.

David Ignatius of the Washington Post wrote in an editorial published on July 31:

The first question to ask about the draconian anti-leaking legislation passed by the Senate intelligence committee last week is whether it applies uniformly to all branches of government that may disclose classified information unlawfully.

And the answer is: Of course not. Members of Congress and their staffs are entirely exempted from the new rules that may require for others more polygraphs, more paperwork and the possible loss of pension benefits. White House and other executive-branch officials (weren’t they the supposed targets?) are also exempt from most of the new rules.

Ignatius goes on to share a “journalistic secret” he has learned during his thirty-five years of writing on “intelligence matters”:

…Most damaging leaks don’t come from U.S. intelligence agencies. They come from overseas, or they come from the executive branch, or they come, ahem, from Congress. The bill doesn’t address the real source of the leaks it seeks to halt…

Feinstein, one of the biggest leakers in Congress, and others on the committee appear to have made certain their staffers would not be subject to the kind of restrictive measures that the committee would like to impose on current and former intelligence employees.

Yesterday, I extensively detailed most of the proposals the Senate intelligence committee has approved. Two of the proposals, which are exceptionally crude in their nature, involve forcing intelligence agency employees to surrender their pension benefits if they are found to have disclosed information without proper authorization and prohibiting former intelligence agency employees, who want to take a job as a “consultant” or enter into a contract with a media organization.

Open government groups sent a letter to the Senate arguing this “extreme approach…would imperil the few existing safe channels for those in the intelligence community who seek to expose waste, fraud, abuse, and illegality.” It would dissuade “conscientious” or former employees from reporting wrongdoing to Congress or an agency’s Inspector General because individuals would not want to risk losing their pension through a process with no judicial review. The Center for National Security Studies condemned the proposed measure against employees entering into media contracts and wrote in a letter to the committee, “The over-breadth of this provision in prohibiting commentary and analysis even when no classified information is disclosed would violate the First Amendment. Indeed the provision seems drafted in order to chill public discussion of information that is not classified, rather than being narrowly tailored to simply target disclosures of classified information.”

The Washington Post soundly rejected the proposals. The Post‘s Walter Pincus detailed the “leaks” that have created a “fuss” in Washington (one which he covered), noted hypocrisy among lawmakers and the media and, with regards to a measure that would ban “background briefings,” sarcastically added, “Funny that no mention is made of backgrounders on Capitol Hill. Of course no leaks ever occur from lawmakers or their staffers.” Ignatius suggested the provision pertaining to pension benefits was in the bill to “frighten government employees.” He also noted “the bill mischievously encourages the attorney general to consider changing policies on issuing subpoenas to reporters to compel them to reveal sources of leaks,” something that would be bad for journalists and the entire country. And the Post editorial board characterized the proposals as measures that would squelch democracy and not make the country any more secure.

One can understand why establishment news organizations would be appalled by the anti-leaks proposals. A number of sources that Post journalists or reporters currently have, who work in intelligence agencies, would likely have to silence themselves. They would extremely limit the sort-of selective leaking by boosters or critics of government policies that the Post has typically relied on for scoops. The provision prohibiting employees from entering into media contracts would make it difficult for an employee to take advantage of a media organization and leave his or her job to promote an agenda, such as a cybersecurity policy or a piece of security infrastructure that he or she thinks should be used more extensively by government.

What is striking is how the anti-leaks proposals would inhibit an often incestuous and longstanding relationship between media and government. Congress members have become so hysterical about “leaking.” They’ve become so servile to their clients in intelligence agencies that want to impose tight security to protect agency operations from becoming public knowledge (especially as a result of whistleblowers or “disgruntled employees”) that they may wind up undermining the ability of analysts or government officials to introduce spin or obvious propaganda into the news cycle—propaganda that has typically helped government abuse secrecy powers and advance controversial or unpopular agendas, policies or programs (for example, see “The Obama Administration’s Drone Propaganda & Secrecy“).


It would be quite easy to point out the hypocrisy of US senators, who have strongly condemned “leaks” in the past and stand fervently behind these anti-leaks proposals yet do not want to subject the entire legislative or executive branch to the same restrictions they seek to impose on intelligence agencies. The only problem with highlighting this hypocrisy is it distracts from a real debate about free speech rights that the media and public should be having instead of an overzealous conversation about leaks.

What has most upset senators all along is the fact that government employees talk to journalists. For example, during a Senate Judiciary Committee hearing, Senator Jeff Sessions went through the New York Times article written by Jo Becker and Scott Shane on Obama’s “kill list” and questioned Attorney General Eric Holder about this article. He highlighted the individuals that the journalists who wrote the article interviewed. He said “these” people “were all talking to the New York Times. Somebody provided information that shouldn’t have been provided. These are some of the closest people you have in government to the President of the United States. So, this is a dangerous thing.” He went on to note that the Times was talking to senior officials at the Justice Department. He added this is a “matter of seriousness.”

It is the free flow of information, not leaks, which they wish to halt. They wish to halt this flow because they are ideologically opposed to the idea of government employees openly discussing national security matters. They are legislators that have transformed their oversight role over intelligence agencies into one that serves to shield the public from interfering with an agency’s daily affairs by raising objection to policies or programs. They are a faction that wants it to be more difficult for reporters to piece together stories like the story New York Times reporters Eric Lichtblau and James Risen published on Bush administration warrantless wiretapping. They do not want national security journalists to expose corruption that will make it difficult to serve agency heads without looking complicit. As sycophant senators, who have taken advantage of a crisis they have manufactured through the spread of unmitigated hype, they are willing to faithfully oblige those in power who wish to impose strict and likely unconstitutional regimes on lower level employees.


As POLITICO’s Josh Gerstein and Scott Wong detail, the proposals also exempt the White House too. Gerstein and Wong write unauthorized disclosures by the White House are “generally beyond the scope of the Senate bill being crafted in response to the clamor.

They also quote former CIA spokesperson Bill Harlow who says:

There’s nothing to indicate that any of the egregious leaks people have been spun up about the last few months came out of the intelligence community or came out of the midlevel of any of these organizations, so how are these particular fixes going to fix anything?…

…If these rules also applied to the White House, the State Department and Congress, they might work. … I’m quite confident there’s nothing in the language that will prevent members of Congress from doing or saying anything…