Update 11/16/04
Since our letter to the conferees on the Intelligence Reform Bills, Scott Armstrong from The Information Trust, Paul Boyle at NAA and Jeffrey Smith, the former general counsel at the CIA, whom NAA hired to help us on this, have met with congressional staffers and discussed our concerns. They were asked to come up with language that might be included in the bill to mitigate the problems we see with the proposed legislation. After many discussions, drafts and redrafts, we came up with some language that was forwarded to some key staffers earlier today. I’ve attached a copy of the language and a copy of the earlier letter which 17 CJOG organizations signed expressing a general concern about the legislation.
Let me share parts of a note from Scott explaining the background and the reasoning behind the language.
“This is only the second time in my memory that publishers and the various organizations representing the journalists at all levels and in all media have all come together in a united position. The earlier time (or sequence) was the Intelligence Authorization Act of 2000, which an attempt to impose an official secrets act for the first time in American history. … In this instance, it is a renewed concern that well-intended legislative reforms could inadvertently result in the imposition of broad restrictions on the order of an official secrets act.
“I hope the (language) begins to address those concerns we have previously expressed about the virtually unrestrained authority of the NID in the original Senate bill language [collectively at 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]. We should remain concerned that the authority embodied in these sections could be used for the noble purposes set forward in the bill or could be used to create a de facto official secrets act. …
“We tried to craft language which requires the executive branch to return to the Congress with appropriate reports and thus submit to appropriate oversight to prevent such abuses. Specifically, we tried to address the expanded use of Sensitive But Unclassified style designations, particularly where accompanied by the sort of ill-defined requirements used in the recent non-disclosure agreement issued by the Department of Homeland Security. (DHS defines sensitive but unclassified information as “an over-arching term that covers any information, not otherwise indicated above, which the loss of, misuse of, or unauthorized access to or modification of could adversely affect the national interest or the conduct of Federal programs.”)
“Secondly, we have tried to capture the spirit of the bill’s “Need to Share” v. “Need to Know” standard and the desirability of a tear-line approach restricting the use and dissemination of sources and methods information while facilitating the information sharing of the intelligence information. In that vein, we have provided language which would require the executive to report back on the ever-expanding use of the non-disclosure agreements for classified information as applied to cover federal, state, local government employees, contractor employees and the private persons concerned with the protection of critical infrastructure, transportations, first responder and public health and safety responsibilities.”
If you have questions after you’ve reviewed the language, drop me an e-mail.
* * *
