Journalists are worried about three provisions in legislation from Sen. Dianne Feinstein designed to stop intelligence leaks to the media that they see as too broad. Brian Weiss, a Feinstein spokesman, says lawmakers are weighing the criticisms. “The bill is a work in progress,” Weiss says. “Sen. Feinstein is looking at the comments and is open to changes as it moves forward in the Senate.”
Now that Congress is back in session, free press advocates are urging lawmakers to reject portions of proposed “leaks legislation” they say infringe on First Amendment rights.
“There are real concerns to us related to restrictions on government officials from talking to the media,” says Mike Cavender, executive director of the Radio Television Digital News Association, one of the organizations opposing the bill.
The legislation was crafted to stop intelligence leaks to the media in the wake of recent breaches. Sen. Dianne Feinstein, the California Democrat who chairs the Senate Intelligence Committee, introduced it in July.
It was approved by the committee and is now awaiting action on the Senate floor. If it passes, the bill would still need the House of Representatives’ approval.
Cavender calls the proposal “an overreaction by Congress. This bill tries to throw a blanket over everything and that’s not the way you deal with these things,” he says.
Journalists are upset about three provisions.
One would prohibit anyone except the highest-level intelligence officials from providing background or off-the-record briefings to the media. In doing so, the legislation would make it difficult for reporters to obtain information from individuals most knowledgeable about certain issues, opponents say.
Another provision would curb the media’s use of intelligence experts by banning certain government employees with top-secret security clearance, as well as former employees who have been retired for less than a year, from entering into contracts with the media to provide analysis or commentary. Cavender says that clause is of particular concern to broadcasters, who regularly use those kinds of experts on air.
A third provision could make it easier for the government to compel testimony from reporters.
Brian Weiss, a Feinstein spokesman, says lawmakers are weighing the criticisms. “The bill is a work in progress,” Weiss says. “Sen. Feinstein is looking at the comments and is open to changes as it moves forward in the Senate.”
Feinstein, however, remains “deeply concerned about the severity and consequences of recent leaks,” Weiss says. Leaks of classified information can disrupt intelligence operations, threaten lives and make other countries less likely to work with the U.S., she says
Weiss says the Senate Intelligence Committee developed the proposed legislation independently of the White House’s crackdown on leaks.
Subjects of recent leaks of classified information include President Obama’s terrorist “kill list,” the U.S.’s role in cyberattacks against Iran’s nuclear facilities and the penetration of a U.S. spy into al Qaeda’s Yemen operation.
Political opponents have claimed that the White House is responsible for revealing some of the secrets for political gain, something the administration has denied.
In President Obama’s first term, there have been more leaks-related prosecutions than under all three previous presidents combined.
Rick Blum, coordinator of the Sunshine in Government Initiative, a coalition of journalism groups including RTDNA and the Society of Professional Journalists, says that in restricting journalists’ access to information, the legislation creates roadblocks that could hamper accuracy in reporting.
It also hinders the publics’ understanding of key issues, he says: “It is essential for the U.S. media to get their facts straight. It’s essential to get out the U.S. perspective. And it’s essential to explain why the U.S. is operating in a certain way or what the concerns are.”
To address leaks to the media, Blum says he would rather see dialogue between journalists and government officials.
“I’m sure there are things that can be done that would have less impact on the media,” Blum says. Increasing computer security, for example, would help stop “unauthorized, true spying,” he says.
“Congress should be really careful doing anything to change the delicate balance between the government’s right to keep secrets and the public’s right to get information through the press,” he adds.
RTDNA attorney Kathleen Kirby says the proposed legislation also raises questions about the constitutionality of imposing penalties on leakers.
“The provisions are designed to scare the heck out of government employees,” Kirby says. “They are limiting the free speech of government employees and contractors.”
Kelly McBride, Poynter’s senior faculty for ethics, sees the issue differently. McBride says she does not believe legislative or judicial attempts to prevent certain people from talking to the media infringe on either the free press or free speech.
But such restrictions do wind up creating tensions between journalists and government officials, she says.
“The professionals who work in [areas like intelligence] can make a very good argument why they can’t do their jobs if everything is revealed to the public. And journalists make a really good argument about how it is impossible to run a democracy if they don’t know what their government is doing,” McBride says.
“Neither one of those groups is wrong. It’s just that they can’t have both those situations at the same time.”
McBride says that while the government “has to be open and transparent,” curbing government employees’ interaction with the media on national security or intelligence issues could be a valid exception to the rule.
McBride says she believes journalists should focus on making sure the government is 100% transparent on the matters that don’t pose security risks, rather than lobbying for access to information that does. Doing so gives the media more credibility when disputes do arise, she claims.
Yet McBride says the current push to have the Intelligence Authorization Act changed in response to journalists’ concerns is a worthy one, primarily because it forces both sides to find common ground.
“We would be foolish to go into the conversation to suggest that there is never a need to keep information confidential. We just want to limit that,” she says.
Blum says lawmakers may be listening. He says that despite Feinstein being “very motivated” to see the bill passed: “We have seen [senators] pull back a little, [showing] that they understand the broad criticism.”
That’s as it should be, McBride says. “That’s how you mount a challenge that creates a law that has some respect for a free press and an open and accountable government.”
Read other Air Check columns here.