Conferees Urged to Retain Oversight on Information Access
Letter to Conferees 11/3/03
We are writing to express concerns with respect to certain powers that the intelligence reform conferees are contemplating giving to the National Intelligence Director that, in our view, may infringe the rights of some government employees, impair the ability of the press to report accurately on matters critical to our nation’s security and impede the information sharing within the intelligence community. Our specific concerns lie with the authority given to the NID to recreate the requirements and procedures for classification, access and dissemination of intelligence information. The full range of authority to the NID about which we express concern is as follows: S. 2845 at Section 112 Subsections: (a) 8 and 10 and Subsections (a) 13-18; at Section 113 Subsection (h ) 1; at Section 123 Subsection (b) 2; at Section 145 (e) 1; at Section 207 Subsection (f) 2 (A); and at Section 1111.
As Americans, we are all deeply aware of the need to have improved intelligence collection, analysis and dissemination. We commend the Congress for its excellent work in response to the suggestions of the 9/11 Commission and agree that a proposal such as the one creating a strengthened National Intelligence Director has the potential to address the acute problems identified by the Commission. We believe, for example, that the Director needs the ability to share information more widely within the intelligence community, between the intelligence community, the rest of the government and the Congress, with state and local officials and, more broadly, with the public. We also understand that an important element of the Director’s ability to share this information is the concomitant responsibility to protect intelligence sources and methods from unauthorized disclosure. Therefore we support, in principle, the efforts by the Conference to give the Director the necessary authority and responsibility to achieve these objectives.
However, we are also mindful that in the past the government has overreached in seeking to limit the ability of government employees to speak to the press or to otherwise express their views to the Congress or the public. For example, Directors of Central Intelligence have sought to impose polygraph requirements on all persons seeking access to intelligence information. Past Directors have also sought to broaden the number of individuals who must sign non-disclosure agreements with pre-publication review provisions. At various times, Directors have required that officials who speak to the press make a record of such conversations as a condition of access to intelligence information. These practices inhibit free speech and interfere with the flow of information between the government and the public.
We believe it imperative that in granting these additional powers to the Director that Congress preserve for itself a certain amount of control or oversight to ensure that this new authority will not lead to the creation of a “virtual official secrets act” under which the Director may use his or her new powers to intimidate government employees or infringe upon their rights.
This is particularly important as the legislation would extend the Director's authority to information sharing between the federal government and those individuals covered by Section 892 of the Homeland Security Act under regulations currently in draft form pending implementation by the Department of Homeland Security. The Office of Management and Budget estimates this information sharing process could eventually reach as many as 4 million Americans, including (a) state and local law enforcement personnel, (b) other non-federal government employees, officials and contractors, (c) those who control and protect privately owned critical infrastructure and transportation systems, and (d) a diverse variety of first responders including doctors, hospital workers and pharmacists. In our view, the imposition of information controls on Americans never before subject to such obligations is a very sensitive process which could unnecessarily encumber the customary daily communications between officials, citizens and the media in communities across the country.
We urge the conferees to carefully review the new authority being given to the Director to assure that he or she cannot use these new powers to unreasonably restrict the free flow of information within the government, between the government and the public and particularly between the government and representatives of the media. We hope the Conferees will consider our concerns and adopt language, in the bill and the conference report that will make it clear that in exercising this authority the Director shall not unreasonably restrict the ability of government employees to speak to the Congress, the press, or the public with respect to matters of public policy concern. At a minimum, we believe the Conferees should make clear in its report that they do not intend that the Director use his powers to create a “virtual official secrets act” by, for example, requiring excessive use of the polygraph as a condition of access to classified intelligence information, unreasonably expanding the number of individuals who must execute non-disclosure agreements, or requiring that persons who speak to the press make a record of such conversations.
Again, we commend the Conference Committee for its extraordinary hard work on a matter of great national importance and we look forward to working with you on this matter.
Sincerely yours,
American Society of Newspaper Editors Associated Press Managing Editors
Association of Alternative Newspapers California First Amendment Coalition
Coalition of Journalists for Open Government Committee of Concerned Journalists
Information Trust Investigative Reporters and Editors
Magazine Publishers Association Newspaper Association of America
National Freedom of Information Coalition National Conference of Editorial Writers
Radio-Television News Directors Association Reporters Committee for the Freedom of the Press
Society of Environmental Journalists Society of Professional Journalists
University of Missouri FOI Center
