The Senate passed the FY2013 intelligence authorization act on December 28
after most of the controversial provisions intended to combat leaks had
been removed.
Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee,
said the bill was revised in order to expedite its passage.
"Since the bill was reported out," she said, "the Committee has received
thoughtful comments from our colleagues, media organizations, and from
organizations that advocate for greater governmental transparency. As a
result of these comments, and technical suggestions received from the
Executive Branch, we have decided to remove ten of the twelve sections in
the title of the original bill that addressed unauthorized disclosures of
classified information so that we might ensure enactment this year of the
important other provisions of the bill."
http://www.fas.org/irp/congress/2012_cr/intelauth.html
More precisely, the revision of the bill could be attributed to the
intervention of Sen. Ron Wyden, who all but single-handedly blocked its
enactment after it was approved in Committee last July by a vote of 14-1,
with only Wyden dissenting. Its passage by the full Congress seemed to be
assured, but in November, Sen. Wyden placed a hold on the bill to prevent
its adoption by unanimous consent.
The provisions that were removed from the final bill included restrictions
on background briefings for the press, limits on media commentary by former
government officials, and authority for the DNI to unilaterally revoke the
pension of a suspected leaker. ("Anti-Leak Measures in Senate Bill Target
Press, Public," Secrecy News, July 31, 2012).
Sen. Wyden opposed most of the anti-leak measures, he explained on
December 21, "because, in my view, they would have harmed first amendment
rights, led to less informed public debate about national security issues,
and undermined the due process rights of intelligence agency employees,
without actually enhancing national security."
He supported the revised intelligence bill, which passed the Senate Friday
on a voice vote.
One of the anti-leak provisions that did remain in the bill (sect. 504)
will require government officials to notify Congress whenever classified
intelligence is disclosed to the press in an authorized manner, other than
through FOIA or other routine processes. Thus, Congress must be advised
whenever classified intelligence is declassified specifically for the
purpose of disclosure to the media or -- more remarkably -- if it is
disclosed to the press on an authorized basis while still classified.
This is an unprecedented legislative definition (or recognition) of a
category of information that has no explicit basis in executive branch
policy-- namely, authorized disclosures of classified information to an
uncleared member of the press or the public. ("Can Disclosures of
Classified Information Be Authorized?", Secrecy News, December 19, 2012).
While disclosures of classified information to the press obviously occur,
the official authorization for such disclosures, if it exists at all, has
always remained tacit. (There is an exception for life-threatening
emergencies, in which classified information may be disclosed to
first-responders and the like.)
The new provision notably applies to all "government officials," including
White House officials. It may oblige the Administration either to abstain
from authorized disclosures of classified intelligence to the press, or to
revise its policies to more clearly permit such disclosures, or to somehow
evade the new reporting requirement, perhaps by defining it away. Thus,
for example, Vice President Dick Cheney stated in 2004 that classified
information could be used "to shape and inform what one says publicly"
without violating prohibitions on disclosure of classified information.
In any case, it will be interesting to see whether the executive branch
notifies Congress of even a single such authorized disclosure to the media
of classified intelligence over the coming year, after which the provision
will sunset (or expire).
"Unfortunately," said Sen. Feinstein, "I am certain that damaging leaks of
classified information will continue, and so the Committee will need to
continue to look for acceptable ways to address this problem."
The revised intelligence bill also backs off from a move to repeal the
requirement for an annual report on security clearances. The most recent
such annual report provided significant new transparency and insight into
the security clearance system, including the unexpectedly large number of
cleared persons. ("Security-Cleared Population Tops 4.8 Million," Secrecy
News, July 23, 2012).
The Director of National Intelligence had asked Congress to eliminate this
reporting requirement, and the Committee markup of the bill initially
complied in July. But in response to concerns expressed by public interest
groups, the final legislation did not include the repeal of the security
clearance reporting requirement.
"I believe we have addressed all of the concerns that have been brought to
our attention by our colleagues and the public," said Sen. Feinstein.
A NEW RULE TO PROTECT RADIOACTIVE MATERIAL (CRS)
A forthcoming Nuclear Regulatory Commission rule on the physical
protection of radioactive "byproduct materials" -- not including uranium or
plutonium -- is discussed in a new report from the Congressional Research
Service.
"The rule will have broad impacts across the country and across most if
not all aspects of industries that use radioactive material, including
hospital and blood bank irradiators, industrial radiography equipment,
massive facilities for irradiating certain foods and medical supplies,
laboratory equipment for research into radiation and its effects, state
regulators, and manufacturers, distributors, and transporters of
radioactive sources. NRC anticipates that the rule will be published in the
Federal Register in early 2013."
See "Nuclear Regulatory Commission 10 C.F.R. 37, A New Rule to Protect
Radioactive Material: Background, Summary, Views from the Field," December
14, 2012:
http://www.fas.org/sgp/crs/nuke/R42868.pdf
Congress has directed CRS not to make its reports directly available to
the public.
_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.
The Secrecy News Blog is at:
http://www.fas.org/blog/secrecy/
To SUBSCRIBE to Secrecy News, go to:
http://www.fas.org/sgp/news/secrecy/subscribe.html
To UNSUBSCRIBE, go to
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OR email your request to saftergood@fas.org
Secrecy News is archived at:
http://www.fas.org/sgp/news/secrecy/index.html
Support the FAS Project on Government Secrecy with a donation:
http://www.fas.org/member/donate_today.html
_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood@fas.org
voice: (202) 454-4691
twitter: @saftergood
The Senate passed the FY2013 intelligence authorization act on December 28 after most of the controversial provisions intended to combat leaks had been removed. Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee, said the bill was revised in order to expedite its passage. "Since the bill was reported out," she said, "the Committee has received thoughtful comments from our colleagues, media organizations, and from organizations that advocate for greater governmental transparency. As a result of these comments, and technical suggestions received from the Executive Branch, we have decided to remove ten of the twelve sections in the title of the original bill that addressed unauthorized disclosures of classified information so that we might ensure enactment this year of the important other provisions of the bill." http://www.fas.org/irp/congress/2012_cr/intelauth.html More precisely, the revision of the bill could be attributed to the intervention of Sen. Ron Wyden, who all but single-handedly blocked its enactment after it was approved in Committee last July by a vote of 14-1, with only Wyden dissenting. Its passage by the full Congress seemed to be assured, but in November, Sen. Wyden placed a hold on the bill to prevent its adoption by unanimous consent. The provisions that were removed from the final bill included restrictions on background briefings for the press, limits on media commentary by former government officials, and authority for the DNI to unilaterally revoke the pension of a suspected leaker. ("Anti-Leak Measures in Senate Bill Target Press, Public," Secrecy News, July 31, 2012). Sen. Wyden opposed most of the anti-leak measures, he explained on December 21, "because, in my view, they would have harmed first amendment rights, led to less informed public debate about national security issues, and undermined the due process rights of intelligence agency employees, without actually enhancing national security." He supported the revised intelligence bill, which passed the Senate Friday on a voice vote. One of the anti-leak provisions that did remain in the bill (sect. 504) will require government officials to notify Congress whenever classified intelligence is disclosed to the press in an authorized manner, other than through FOIA or other routine processes. Thus, Congress must be advised whenever classified intelligence is declassified specifically for the purpose of disclosure to the media or -- more remarkably -- if it is disclosed to the press on an authorized basis while still classified. This is an unprecedented legislative definition (or recognition) of a category of information that has no explicit basis in executive branch policy-- namely, authorized disclosures of classified information to an uncleared member of the press or the public. ("Can Disclosures of Classified Information Be Authorized?", Secrecy News, December 19, 2012). While disclosures of classified information to the press obviously occur, the official authorization for such disclosures, if it exists at all, has always remained tacit. (There is an exception for life-threatening emergencies, in which classified information may be disclosed to first-responders and the like.) The new provision notably applies to all "government officials," including White House officials. It may oblige the Administration either to abstain from authorized disclosures of classified intelligence to the press, or to revise its policies to more clearly permit such disclosures, or to somehow evade the new reporting requirement, perhaps by defining it away. Thus, for example, Vice President Dick Cheney stated in 2004 that classified information could be used "to shape and inform what one says publicly" without violating prohibitions on disclosure of classified information. In any case, it will be interesting to see whether the executive branch notifies Congress of even a single such authorized disclosure to the media of classified intelligence over the coming year, after which the provision will sunset (or expire). "Unfortunately," said Sen. Feinstein, "I am certain that damaging leaks of classified information will continue, and so the Committee will need to continue to look for acceptable ways to address this problem." The revised intelligence bill also backs off from a move to repeal the requirement for an annual report on security clearances. The most recent such annual report provided significant new transparency and insight into the security clearance system, including the unexpectedly large number of cleared persons. ("Security-Cleared Population Tops 4.8 Million," Secrecy News, July 23, 2012). The Director of National Intelligence had asked Congress to eliminate this reporting requirement, and the Committee markup of the bill initially complied in July. But in response to concerns expressed by public interest groups, the final legislation did not include the repeal of the security clearance reporting requirement. "I believe we have addressed all of the concerns that have been brought to our attention by our colleagues and the public," said Sen. Feinstein. A NEW RULE TO PROTECT RADIOACTIVE MATERIAL (CRS) A forthcoming Nuclear Regulatory Commission rule on the physical protection of radioactive "byproduct materials" -- not including uranium or plutonium -- is discussed in a new report from the Congressional Research Service. "The rule will have broad impacts across the country and across most if not all aspects of industries that use radioactive material, including hospital and blood bank irradiators, industrial radiography equipment, massive facilities for irradiating certain foods and medical supplies, laboratory equipment for research into radiation and its effects, state regulators, and manufacturers, distributors, and transporters of radioactive sources. NRC anticipates that the rule will be published in the Federal Register in early 2013." See "Nuclear Regulatory Commission 10 C.F.R. 37, A New Rule to Protect Radioactive Material: Background, Summary, Views from the Field," December 14, 2012: http://www.fas.org/sgp/crs/nuke/R42868.pdf Congress has directed CRS not to make its reports directly available to the public. _______________________________________________ Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists. The Secrecy News Blog is at: http://www.fas.org/blog/secrecy/ To SUBSCRIBE to Secrecy News, go to: http://www.fas.org/sgp/news/secrecy/subscribe.html To UNSUBSCRIBE, go to http://www.fas.org/sgp/news/secrecy/unsubscribe.html OR email your request to saftergood@fas.org Secrecy News is archived at: http://www.fas.org/sgp/news/secrecy/index.html Support the FAS Project on Government Secrecy with a donation: http://www.fas.org/member/donate_today.html _______________________ Steven Aftergood Project on Government Secrecy Federation of American Scientists web: www.fas.org/sgp/index.html email: saftergood@fas.org voice: (202) 454-4691 twitter: @saftergood
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