Written by Jennifer Lynch and Trevor Timm
The US Senate is currently debating a dangerous bill that, if passed, would have broad consequences for press freedom and the public’s right to know. EFF asks senators to stand up for government transparency and the First Amendment and vote it down.
The bill’s provisions, buried in the annual Intelligence Authorization Act, are intended to stop leaks of classified information to reporters—a premise worrying in itself—but it is written so sloppily it will also severely impair government transparency and prevent the media from reporting on national security issues.
The problems with this bill are extensive and severe. As the New York Times pointed out in an unusually forceful editorial last Friday, it has been “drafted in secret without public hearings” and bars most government employees from giving press background briefings, even if the information is unclassified—vital for media organizations when reporting on complex issues. Another provision prohibits officials from writing op-eds or appearing on television, again, even if the information is unclassified—a clear prohibition on protected speech.
Classification expert Steven Aftergood documented several specific problems with the bill’s broad definitions, most notably that the bill doesn’t differentiate between properly and improperly classified information. Even the Freedom of Information Act, which carries a broad exception for classified information. insists it must be “properly classified.”
This is especially troubling given that the government’s secrecy system has ballooned to absurd proportions, to the point where virtually every government action in the national security or foreign policy realm has been stamped classified, many times improperly. Information is regularly classified to hide embarrassing details, government waste, corruption, and even serious constitutional violations. The former head of the U.S. classification process, J. William Leonard, recently called the system “dysfunctional” because it “clearly lacks the ability to differentiate between trivial information and that which can truly damage our nation’s well-being.” The bill’s definition is virtually an invitation for government officials to further use secrecy to hide their conduct.
And if classification were used to hide such wrongdoing, “there is no exception carved out for whistle-blowers or other news media contacts that advance the public’s awareness,” as the New York Times reported. At the same time, Congress, its staff, and other high level officials are exempt from many of the bill’s provisions.
The Obama administration has already been far too aggressive in prosecuting whistleblowers—its charged more leakers than all other administrations combined—and the latest, wide ranging FBI investigation into new leaks is “casting a distinct chill over press coverage of national security issues as agencies decline routine interview requests and refuse to provide background briefings” as the New York Times reported on its front page last Thursday. The new anti-leaks bill has the potential to permanently alter the way news media can interact with government officials. As the New York Times editorial board said in its criticism Friday, this won’t just chill the press, but potentially “undermine democracy by denying Americans access to information essential to national debate on critical issues like the extent of government spying powers and the use of torture."
Perhaps the most disturbing aspect of this bill is the fact that it has been proposed at all. As Steven Aftergood notes, “there is something incongruous, if not outrageous, about the whole effort by Congress to induce stricter secrecy in the executive branch, which already has every institutional incentive to restrict public disclosure of intelligence information.” Aftergood reminds us that, in the past, leaks led to investigations into the programs exposed and to “substantive” Congressional oversight. In stark contrast, the response to leaks in the years since September 11, 2001—by both Congress and the Executive—has been to prosecue whisteblowers—and even reporters—and to ensure even more information is kept secret from the American public.
Take, for example, the national debate on the use of classified drone strikes in overseas military operations. As the New Yorker’s Steve Coll wrote, the new book by Newsweek reporter Daniel Klaidman on President Obama’s use of classified drone strikes discusses “the first instance in American history of a sitting President speaking of his intent to kill a particular U.S. citizen without that citizen having been charged formally with a crime or convicted at trial.” Similarly, when the New York Times reported on U.S. cyberattacks against Iran—another target of recent leak investigations—the Times said the decision to engage in offensive cyberattacks was so consequential and unprecedented, that it is comparable to “the first use of atomic weapons in the 1940s.”
These are just two instances of decisions by the President which -- whether you agree with them or not-- should be debated and scrutinized in both the halls of Congress and the public sphere. Yet because they are hidden behind giant walls of secrecy, there is no oversight or accountability, and the public has no say in decision as to whether the country should be engaging in them at all.
Late Friday, Chairman of the Senate Intelligence Committee Dianne Feinstein said the committee would “reconsider” some of the proposals after receiving a firestorm of criticism last week. She should go farther and strike them entirely—they have no place in a democracy that values government transparency and prides itself on press freedom and justice under the law.
Jennifer Lynch is a staff attorney with the Electronic Frontier Foundation and works on open government, transparency and privacy issues as part of EFF’s FOIA Litigation for Accountable Government (FLAG) Project.
Trevor Timm is an activist at the Electronic Frontier Foundation. He specializes in free speech issues and government transparency.