NSA chief Gen. Keith Alexander

At a panel on cyber security at Georgetown University, the National Security Agency (NSA) director made statements that suggested the NSA has been working on some kind of “media leaks legislation.” The legislation would obviously be in response to the disclosures from former NSA contractor Edward Snowden, but, until now, there has been no public indication that any anti-leaks legislation would be proposed in response to what Snowden disclosed.

Spencer Ackerman, a journalist for The Guardian, reported that NSA chief Gen. Keith Alexander said during the event, “Recently, what came out with the justices in the United Kingdom …they looked at what happened on [David] Miranda and other things, and they said it’s interesting: journalists have no standing when it comes to national security issues. They don’t know how to weigh the fact of what they’re giving out and saying, is it in the nation’s interest to divulge this.”

It was his first public comments endorsing the British security services decision to have journalist Glenn Greenwald’s partner, Miranda, detained under a terrorism law in the country. The security services detained him to get their hands on Snowden documents he was believed to be carrying.

Alexander said: “My personal opinion: these leaks have caused grave, significant and irreversible damage to our nation and to our allies. It will take us years to recover.”

He argued, according to the New York Times, that the nation had not been able to pass legislation to protect against cyber attacks on Wall Street or other “civilian targets” because of Snowden.

“We’ve got to handle media leaks first,” Alexander additionally declared. “I think we are going to make headway over the next few weeks on media leaks. I am an optimist. I think if we make the right steps on the media leaks legislation, then cyber legislation will be a lot easier.”

Two individuals who specifically track developments such as leaks legislation had no idea what Alexander was talking about when he mentioned the legislation. Ackerman reported, “Angela Canterbury, the policy director for the Project on Government Oversight, a watchdog group, said she was unaware of any such bill. Neither was Steve Aftergood, an intelligence policy analyst at the Federation of American Scientists,” who posts regularly at Secrecy News.

Whatever Alexander has been working on behind the scenes likely has been developed with the support of Sen. Dianne Feinstein and Rep. Mike Rogers, who have been some of the most vocal critics of the disclosures (as well as the most fervent defenders of the NSA in the aftermath of the leaks).

In 2012, the Senate Select Committee on Intelligence, which Feinstein chairs, approved anti-leaks measures as part of an intelligence authorization bill. The measures were being considered as a response to leaks that had occurred on cyber warfare against Iran, President Barack Obama’s “kill list,” and a CIA underwear bomb plot sting operation in Yemen.

The measures would have required: that Congress be notified when “authorized public disclosures of national intelligence” are made; that “authorized disclosures” of “classified information” be recorded; that procedures for conducting “administrative investigations of unauthorized disclosures” be revamped by the Office of the Director of National Intelligence (DNI) ; that the DNI assess the possibility of expanding procedures for detecting and preventing “unauthorized disclosures” to other Executive Branch personnel; that certain people be prohibited from serving as consultants or having contracts with media organizations; that only a limited number of individuals in intelligence agencies be permitted to speak with members of the media and that responsibilities intelligence community employees have to protect “classified information” be made more clear.

The anti-leaks proposals also called for disciplinary measures against people who violated “classified information” by making “unauthorized disclosures.” This would have included: letters of reprimand, placing notice of violations in personnel files and informing congressional oversight committees of such notices, revoking security clearances, prohibiting employees from obtaining new security clearances and firing employees. Additionally, a provision would also have made it possible for an employee to lose his or her federal pension benefits if they were responsible for an “unauthorized disclosure.”

There was much condemnation of the proposals. A letter to the Senate signed by civil liberties, open government and watchdog groups argued the policy would not “protect” the “nation’s legitimate secrets” but would instead open the door to “abuse” and chill “critical disclosures of wrongdoing.” It described how the measure on surrendering pension benefits was an “extreme approach” to security that “would imperil the few existing safe channels for those in the intelligence community who seek to expose waste, fraud, abuse, and illegality. Conscientious employees or former employees considering reporting wrongdoing to Congress and agency Inspectors General, for example, would risk losing their pensions without adequate due process.”

Multiple newspapers published editorials criticizing the proposals and urging caution in the midst of all the leaks hysteria in Washington, DC.

Senator Ron Wyden objected to the anti-leaks proposals and put a hold on the intelligence authorization bill. All but one of the anti-leaks proposals were removed. The provision requiring notification of “authorized” disclosures was left in the bill.

On the Senate floor, Wyden stated after the anti-leaks proposals were removed:

…I’m all for Congress recognizing that leaks are a serious problem, and for doing things to show the men and women of the US intelligence community the seriousness of this issue is recognized here in this body.  But it is important for Congress to remember that not everything that is done in the name of stopping leaks is necessarily wise policy.

In particular, I think Congress should be extremely skeptical of any anti-leak legislation 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…

Significantly, Wyden also declared:

Congress, too, 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.  And while 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.

This is the case now. For those who were not leading intelligence committees and were not committed to protecting surveillance programs or shielding them from scrutiny,  much of what has been disclosed consisted of information congressmen or senators did not know the government was doing. They can now make informed decisions about whether to support current programs or policies and can also decide whether to support proposed reform legislation to curtail NSA surveillance powers because of Snowden’s leaks.

It is, of course, unknown what this legislation being secretly developed intends to do in order to address “media leaks,” but it is reasonable to predict that it will bear a stark similarity to “remedies” approved by the Senate intelligence committee in 2012, which Wyden played a role in blocking from passage.
Alexander has expressed interest in some kind of action to stop the publishing of information from the leaks. He declared in an interview posted by the Pentagon:

I think it’s wrong that newspaper reporters have all these documents, the 50,000—whatever they have and are selling them and giving them out as if these—you know it just doesn’t make sense. We ought to come up with a way of stopping it. I don’t know how to do that. That’s more of the courts and the policymakers but, from my perspective, it’s wrong to allow this to go on.

In the wider US intelligence community, DNI James Clapper, stated during a Senate intelligence committee hearing on “worldwide threats,” “Snowden claims that he’s won and that his mission is accomplished. If that is so, I call on him and his accomplices to facilitate the return of the remaining stolen documents that have not yet been exposed, to prevent even more damage to US security.”
NSA Inspector General George Ellard, the person who Snowden was supposed and go to with his concerns about NSA surveillance, said at a Georgetown Law Center event, that Snowden had been “manic in his thievery. His disclosures were “open-ended, as his agents decide daily which documents to disclose.”
The “agents” he was referring to were the journalists, who had been covering the documents—people like Greenwald, Laura Poitras, Barton Gellman and others at the Guardian, New York Times, ProPublica and First Look, who have seen copies of the documents for news stories that have been published.

Constantly, US intelligence officials, including Alexander, have accused the media of “sensationalizing” leaks, rarely ever producing any specific examples to prove that what has been widely reported about the NSA has been inaccurate.

The agency has struggled to overcome news coverage, where it is suggested that they are responsible for unchecked surveillance on citizens not just in America but all over the world. The agency has tried having a friendly person in the news media shoot an infomercial for them that aired as a “60 Minutes” episode. It has tried developing talking points and sending letters out to employees, which suggest they will weather the storm. It even advised employees to take advantage of Thanksgiving dinner gatherings to explain to family and friends what it considered to be the truth. But none of that has effectively disrupted a now eight-month debate that has greatly affected Americans’ attitudes toward government surveillance and spurred the development of a market for privacy tools.

One of the few moves Alexander has left before he leaves his position as director is to convince leaders in Congress to take up “media leaks legislation” so that the next NSA director does not have to struggle with another Edward Snowden.

Such legislation may enjoy some success because President Barack Obama has fiercely opposed leaks and gone so far as to prosecute a record number of people under the Espionage Act, which in the process has created a chilling effect for journalists. However, the same groups and voices that spoke out in 2012 will speak out again and condemn the legislation if it appears it will have profound implications for press freedom. And criticism will be particularly loud if it does more than target federal government employees and goes a step further by targeting members of the press in some manner.