Update 12/1/04
The latest reports indicate the White House is pushing to have the intelligence reform bill adopted next week. If our reading of the version that survived long days of House-Senate negotiations is accurate, that would be unfortunate.
Even though this is the first significant reform of our nation’s intelligence system in more than 30 years, the final bill came very close to being voted on two week ago without being read or analyzed by those who would have voted. If the bill is pushed to a vote early next week, that’s likely to still be the case.
There is no public version of the 500-page bill, and the effort to contain information about the language appears deliberate. In response to one of our inquiries, a staffer said copies weren’t available but did agree to read a specific paragraph we asked about. As I listened yesterday to members of the 9/11 Commission urge Congress to act, I wondered if any of them had in fact seen, and read, the compromise version.
That version does deal with one of our concerns, modifying language involving the authority granted the new Director of National Intelligence on classification in a way that insures limited oversight and judicial review of classification decisions. That’s a plus. However, most other language providing for congressional oversight and public accountability was stripped out in the closed door negotiations. We had urged even stronger oversight provisions than provided in the original House and Senate legislation because the authority being extended to the DNI to “protect” information is broad and virtually unchecked.
We believed then – and believe more so now – that the bill leaves too much room to administratively ratchet up secrecy by using controversial non-disclosure agreements and other secrecy-imposing techniques, thus creating a virtual official secrets act through administrative fiat. We had suggested this might be avoided or contained if strong oversight review provisions were built in. In going through the bill that emerged from days of closed-door negotiations, I was unable to find any such checks.
And some positive language in the Senate version had disappeared.
Gone is language that called on the DNI to “establish intelligence reporting guidelines that maximize the dissemination of information while protecting intelligence sources and methods.”
Gone is a section that challenges the assumption that secrecy itself should be a goal: “Current security requirements nurture over-classification and excessive compartmentalization of information among agencies. Each agency's incentive structure opposes sharing, with risks, including criminal, civil, and administrative sanctions, but few rewards for sharing information. The current system, in which each intelligence agency has its own security practices, requires a demonstrated `need to know' before sharing. This approach assumes that it is possible to know, in advance, who will need to use the information. An outgrowth of the cold war, such a system implicitly assumes that the risk of inadvertent disclosure outweighs the benefits of wider sharing. Such assumptions are no longer appropriate.”
Gone is a section that provides for an Executive Council on Information Sharing that would “ (A) make its reports to Congress available to the public to the greatest extent that is consistent with the protection of classified information and applicable law; and (B) otherwise inform the public of its activities.”
This is indeed a bill that might be better dead than read. The potential consequences for and to our nation’s security are enormous. The potential consequences for loss of government accountability and transparency are equally great. It is another case of haste making bad policy, and providing the means to hide the mistakes that are made for years to come.
Incidentally, the controversial non-disclosure agreements the Department of Homeland Security is imposing on its employees have run into the opposition of two federal unions, which say the contracts that prevent employees from talking about so-called “sensitive but unclassified information”may be unconstitutional and could be a device to "to suppress and cover up evidence of their own misconduct or malfeasance by stamping documents 'for official use only.'"
Pete Weitzel
