Update 12/15/04
As you know, the Congress last week passed a 615-page bill calling for the most sweeping reorganization of the nation’s intelligence community since 1947. At the time of the House vote, a printed copy of the legislation, heavily altered in conference, had been available to members for less than an hour. The senators had a little more time, 24 hours, to digest the measure. Shortly before the vote, Sen. Robert Byrd rose to chastise his colleagues for their haste: “I would say that any other Senator who stands before this Senate and tells the American people he or she knows what is in the conference report is like the emperor who had no clothes.”
Feeling similarly naked – and being on vacation in Florida – I have held off reporting to you on the bill until I’d had a chance to review the final form and read the House and Senate reports, which offer some critical qualifiers to the language of the law. That brings me back to the senator from West Virginia and his remarks. He and several other senators noted that the bill was substantially changed, yet none of the modifications had been discussed or debated. “Is that the way we ought to legislate?” he asked. “These changes will remain for decades, and these changes will impact upon the security of our nation at countless levels. Such matters ought to be held to a higher standard of consideration by the Congress than is the case here.”
Scott Armstrong (Information Trust) and Paul Boyle (NAA) working with attorney Jeffrey Smith were in continuing communication with staff aides to key conferees through the final week of negotiations. We sought but were unable to get stronger oversight language; the conferees were locked in debate over other issues. When it became clear the briefly-blocked bill would go to a vote, we sought clarifying, and modifying, language in direct statement or colloquy among key conferees during the floor reports. Here, we made some progress.
Rep. Jane Harman, the House conference co-chair, reported, “There is no intention on the part of the Congress to impair the appropriate and desirable flow of information. This bill does not contain any authority for the DNI or the President to establish a regime of undue government secrecy. … Further, it should be Congress's duty to assure through oversight that this information sharing environment is appropriate and complete.
Sen. Joseph Lieberman and Sen. Susan Collins, the Senate co-chairs, engaged in a carefully scripted colloquy that addressed the information access concerns we had raised. Sen. Lieberman: “The legislation recognizes that there will sometimes be a tension between the need to share intelligence information and the need to protect intelligence sources and methods. … The DNI’s guidelines are to foster a shift from a culture of undue secrecy by, among other things, allowing for dissemination of intelligence products at the lowest possible level of classification consistent with security needs—and in unclassified form to the extent possible. … The President will also issue guidelines to ensure that information is provided in its most shareable form, such as by using “tearlines” to separate data from the sources and methods by which the data is obtained.” Sen: Collins: Some concerns have been expressed to us about whether the authorities under this bill might be used, or abused, to unduly limit the flow of information to the Congress, State and local governments, and the public. Nothing could be farther from our intent than to chill the appropriate and desirable dissemination of information. This bill does not grant any new authority for the DNI or the President to establish a regime of undue government secrecy. … The legislation does not include any new provisions to criminalize or unduly suppress the lawful sharing of unclassified information, nor does the bill waive any existing protections of government employees who raise legitimate concerns by disclosing information to Congress or through other lawful channels.” Sen.Lieberman: “… By fostering the diffusion of information, consistent with the need to secure intelligence sources and methods, the legislation should help enable the American people to have the information they need to make informed decisions about the threats our nation faces and the steps we must take to overcome those threats.”
It is not possible to know what will happen in implementation in the coming months or in coming years. But our concerns remain about the potential for abuse of the raw power given to the Director of National Intelligence to “protect” information dealing with the operations of 15 agencies, most of which do not presently have classification authority. This new authority, combined with the spreading use of non-disclosure agreements and other information flow controls, mean that journalists and other open government advocates are going to have to be even more diligent in monitoring and more aggressive in reporting on the information sharing and the information withholding that, in fact, takes place. And we’re almost certainly going to need to remind Congress, and the American people, of the lawmakers’ promises to maintain effective oversight.
I’ll post the extended remarks from the House and Senate discussions on the website in the next several days.
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Address change: We’ve moved with the Reporters Committee to new offices a few blocks away. The new address is 1101 Wilson Blvd., Arlington, VA. 22209. Phone and email remains unchanged.
