The third provision that I am most concerned about is section 511, which would require the Director of National Intelligence to establish an administrative process under which he and the heads of the various intelligence agencies would have the authority to take away pension benefits from an intelligence agency employee (or a former employee) if the DNI or the agency head “determines” that the employee has knowingly violated his or her nondisclosure agreement and disclosed classified information.
I am concerned that the Director of National Intelligence himself has said that this provision would not be a significant deterrent to leaks, and that it would neither help protect sensitive national security information nor make it easier to identify and punish actual leakers. Beyond these concerns about the provision’s effectiveness, I am also concerned that giving intelligence agency heads broad new authority to take away the pensions of individuals who haven’t been formally convicted of any wrongdoing could pose serious problems for the due process rights of intelligence professionals, particularly when the agency heads themselves haven’t told Congress how they would interpret and implement this authority. As many of my colleagues will guess, I’m especially concerned about the rights of whistleblowers who report waste, fraud and abuse to Congress or Inspectors General.
I outlined these due process concerns in more detail in the committee report that accompanied this bill, so I won’t restate them all here. I will note, though, that I am particularly confused by the fact that section 511 creates a special avenue of punishment that only applies to accused leakers who have worked for an intelligence agency at some point in their careers. There are literally thousands of employees at the Departments of Defense, State and Justice, as well as the White House, who have access to sensitive national security information. I don’t see a clear justification for singling out intelligence community employees with this provision, when there is no apparent evidence that these employees are responsible for a disproportionate number of leaks. And I am concerned that it will be harder to attract qualified individuals to work for intelligence agencies if Congress creates the perception that intelligence officers have fewer due process rights than other government employees.
While I have a number of smaller concerns regarding the language of these anti-leaks provisions, the issues that I have just laid out represent my central concerns, and I hope that my colleagues now have a better sense of why I oppose this bill. I would add that my view seems to be widely shared outside of Congress, and that when USA Today ran an editorial criticizing these anti-leaks provisions, they couldn’t find a single senator who was willing to publicly defend them.
I know that the sponsors of this bill have worked hard on it, and I am still happy to sit down with them at any time to discuss my concerns in more detail, and help them make the major changes that I believe must be made before this authorization bill moves forward.