Proposed bill threatens reporting on national defense issues

ASNE members can act in several ways – from simply providing us with useful information on how they interact with government employees to writing editorials to contacting key legislators – to fight back against these harmful legislative proposals.

Originally posted on 9/6/2012

Proposed legislation in Congress to clamp down on national security leaks is raising concerns that it will violate the First Amendment right of the media to publish sensitive information that is so vital to an informed citizenry. ASNE members can act in several ways – from simply providing us with useful information on how they interact with government employees to writing editorials to contacting key legislators – to fight back against these harmful legislative proposals. 

For the better part of the 112th Congress, ASNE and other members of the Sunshine in Government Initiative have worked hard to resist changes to the series of statutes found in Title 18 of the United States Code which are commonly referred to as the “Espionage Act”.   Every few months, a new set of proposals is floated with an eye toward giving the executive branch more power to deter or punish leaks of classified information. Some changes (either intentionally or unintentionally) might allow prosecutors to actually bring criminal charges against anyone who publishes information in violation of the proposed Espionage Act statutes; others would simply make it easier to go after the government employees who engage in unauthorized disclosures of certain national defense information to the media.

The Fiscal Year 2013 Intelligence Authorization Act (S 3454) falls into the latter category.  However, while this bill does not propose any new criminal penalties against nongovernmental individuals or entities who publish classified or national defense information, Title V contains three sectionsthat could significantly impact ASNE members' ability to gather and publish information on national defense issues, even when there is no direct likelihood that classified information will be revealed:

Section 505 will ban former government employees who had top secret clearance within the past three years and left the government within the past year from “entering into a contract or other binding agreement” with “the media” to help provide expert “analysis or commentary on matters concerning the classified intelligence activities” of the United States.  The use of vague and overbroad terms lacking in any real definition would appear to restrict not only television appearances but the ability of ASNE members to procure op-eds or perhaps even interview anyone who has recently left government employment. 

Section 506 will prevent background or off-the-record intelligence briefings for the media by those intelligence staffers most informed on these issues.  This section says that, while any employee of an intelligence agency can give an on-the-record statement on any issue, only the director or deputy director, or public affairs personnel can give off-the-record or background briefings “regarding intelligence activities.”  Of  course, this will result in more politically motivated, less substantive and informative discussions of national defense issues – and may even result in inaccurate reporting on sensitive issues.  

Section 508 requires the attorney general to submit a report on possible changes to the Department of Justice's regulations related to issuing subpoenas to the news media.  As we continue to push for the enactment of an actual federal shield law, we view this report as a first step in the opposite direction: a potential watering down of the internal, nonbinding guidelines that currently provide the only real check on the possibly unfettered ability of the Department of Justice to subpoena journalists to testify in federal court proceedings.

ASNE Legal Counsel Kevin M. Goldberg worked with representatives of other SGI members to push back against these particular provisions.  SGI quickly drafted a responsive document outlining problems with Title V which was immediately circulated to key members of Congress  and followed that up with a letter to members of the Senate Intelligence Committee, both arguing that they are unconstitutionally overbroad and will disrupt the delicate balance that has successfully produced important stories on national security issues without any significant threats to safety or security.  SGI representatives have also met with key staffers from the Senate Intelligence and Judiciary committees to make our case against these sections.  At a minimum, we're asking for more thorough consideration of their effect on newsgathering and the public interest before Title V is simply rushed through Congress as part of the Intelligence Authorization bill.

However, we can use your help as well.  If your senator is a member of the Senate Select Committee on Intelligence or the House Permanent Select Committee on Intelligence, we would greatly appreciate your help in reaching out to those lawmakers in any way and explaining to them the negative impact Title V could have on your newsgathering and publication on national defense issues.  Make it clear that you are not trying to derail the Intelligence Authorization bill entirely; rather you have serious concerns with Title V of that bill (or, more specifically, a few provisions of Title V) and that you understand that absolutely no hearings have been held regarding Title V. Tell them that Title V should be dropped from the bill until the seriously flawed language can be fixed after greater public discussion of these issues.

Furthermore, if your reporters have done stories after learning classified information in the course of reporting a story, especially where the stories focused on foreign affairs stories and did NOT involve controversial revelations of U.S. activities, we'd like to know about it. These could be very useful in terms of explaining how the contacts that could be prohibited by Sections 505 and 506 of this bill would impact the public interest in knowing about the activities of the intelligence agencies.

Please send these stories to Kevin M. Goldberg at 703-812-0462 or, and feel free to contact him if you need more information about this bill or any of its predecessors.