Sen. Ron Wyden (Flickr Photo by Talk Radio News Service)

Democratic Senator Ron Wyden of Oregon has placed a public hold on the intelligence authorization bill to prevent anti-leaks provisions from passing without any meaningful debate or amendments because he believes they would “inhibit free speech and damage the news media’s ability to report on national security issues.”

On the Senate floor, Wyden declared, “Congress should be extremely skeptical of any anti-leaks bills that threaten to encroach upon the freedom of the press, or that would reduce access to information that the public has a right to know.”

The anti-leaks provisions approved by the Senate Select Committee on Intelligence were drawn up as a response to “leaks” on cyber warfare against Iran, Obama’s “kill list” and a CIA underwear bomb plot sting operation in Yemen. Senators like Dianne Feinstein claimed they would curb “unauthorized disclosures” of “classified information” from people who are not authorized to “leak.” Wyden opposed the provisions and was the only senator to vote against the Intelligence Authorization Act containing the provisions when it passed through committee in July.

One of the provisions Wyden opposes “would require former government employees who held Top Secret, compartmented security clearances to wait one year before entering into a contract or agreement to provide analysis or commentary to a media company.” The term “media company,” however, is not defined and “could conceivably represent almost any form of public dissemination of information.” This would inhibit free speech by former intelligence officials. It would also “prevent news organizations from hiring experts to assist in creating more informed news coverage.” Since the officials are “already bound by law” to not “divulge classified information,” the provision is unnecessary.

Prohibiting commentary would be a clear violation of free speech. As Wyden said, “If a retired CIA Director wishes to publish an op-ed commenting on a public policy debate,” there should be no “reason to try to ban him from doing so, even if he has been retired less than a year.”

Another provision would prohibit intelligence employees from speaking to the media on background on unclassified issues, even if they would happen to be authorized. Again, this would limit media organizations’ access to sources and narrow the number of officials in the intelligence community able to provide background information for new stories. It would mean there would be much less information on critical national security matters. Though that may be the goal of those pushing the provisions, it would only serve to reinforce government secrecy.

“There are literally thousands of employees at the Departments of Defense, State and Justice, as well as the White House, who have access to sensitive national security information,” Wyden declared. “I don’t see a clear justification for singling out intelligence community employees with this provision, when there is no apparent evidence that these employees are responsible for a disproportionate number of leaks.” In fact, as covered in August, the provisions do nothing to curb the leak powers of the staff of Congress members, who do a large portion of the leaking that ends up in news reports.

Yet another provision would “give the heads of intelligence agencies the authority to strip pension benefits from any employee or former employee that the agency head ‘determines’ is responsible for an unauthorized disclosure of classified information.” Wyden opposes this because it would likely “undermine the due process rights of intelligence community employees, and potentially be used to retaliate against whistleblowers.” Also, “the Director of National Intelligence has said that this provision would not help deter leaks, would not help identify leakers, and could actually lead to more disclosures of classified information.”

“Giving intelligence agency heads broad new 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, particularly when the agency heads themselves haven’t told Congress how they would interpret and implement this authority,” Wyden added. “As many of my colleagues will guess, I’m especially concerned about the rights of whistleblowers who report waste, fraud and abuse to Congress or Inspectors General.”

Wyden noted the value of the press to Congress, stating it would be “much less effective in its oversight if members did not have access to informed press accounts on foreign policy and national security topics.”

…[W]hile many members of Congress don’t like to admit it, members often rely on the press to inform them about problems that congressional overseers have not discovered on their own.  I have been on the Senate Intelligence Committee for twelve years now, and I can recall numerous specific instances where I found out about serious government wrongdoing – such as the NSA’s warrantless wiretapping program, or the CIA’s coercive interrogation program – only as a result of disclosures by the press…

The senator described how he had tried to get the Committee to hear feedback from groups outside of Congress before passing the intelligence authorization bill containing the anti-leaks provisions. The committee would not consult outside groups. Additionally, the majority of media organizations published editorials or commentary opposing the provisions. The USA Today, according to Wyden, could not find one senator, “who was willing to publicly defend them.” That is because the provisions are essentially ones that when added together in one bill could make up an Official Secrets Act.

It is refreshing to see a senator engaging in this sort of action to defend press freedom and due process. Wyden is one of the few senators in Congress, who exhibits concern or interest in how the national security state is eroding civil liberties. He is one of the few senators, who has expressed concern over warrantless surveillance. He placed a hold on reauthorization of the FISA Amendments Act of 2008, which the ACLU is challenging at the Supreme Court. He genuinely seems to care about matters, which President Barack Obama would completely avoid discussing because they are “unsexy” or because he finds the rolling back of freedoms to be an unavoidable symptom of “protecting” “national security.”

Wyden celebrates the press because his father was a journalist, who wrote a “definitive account” of the Bay of Pigs and an account of what led to the US decision to drop the atomic bomb. But, most in Congress do not have this respect for the press. Their only concern is controlling the flow of information and encouraging agencies to make sure spokespeople armed with talking points are the only ones speaking to the press.

The senators, who drafted these anti-leaks provisions, do not have any dedication or commitment to checking the power of intelligence agencies over Americans. To them, their function is to ensure business runs smoothly at these agencies and stories that raise objection to policies or programs interrupt business as usual. They do not value the contributions of journalists like Eric Lichtblau and James Risen, who published details on Bush administration warrantless wiretapping. That information puts them in a position where they have to explain why agencies are engaging in this lawless conduct and then they have to decide whether to challenge heads of agencies they do not really want to cross.

That is why Wyden has to put a public hold on these provisions. Stalling business as usual in the Senate is the only way to convince senators, who are indifferent to concerns over civil liberties, to back off these proposals. It is one of the only ways to communicate to them that legislation, which will fuel the war on whistleblowing in Washington, is unacceptable.