The pending proposal would “provide an additional administrative option for the Intelligence Community to deter leakers who violate the pre-publication review requirements of their non-disclosure agreements,” the Committee said.
The premises of the new proposal are questionable and it has generated some controversy even within the Senate Committee itself.
The starting point of the Committee proposal is that leakers are rarely if ever punished. “A particular source of frustration has been that leakers are rarely seen to suffer consequences for leaking classified information.” In fact, however, the number of ongoing leak-related prosecutions is currently at an all-time high.
Secondly, the Committee believes that existing administrative sanctions that stop short of criminal prosecution — including “security clearance revocation, suspension, or termination” — are inadequate and incomplete because they cannot reach persons who are no longer government employees. “Unfortunately, these sanctions are not generally available for use against a key source of leaks, former Intelligence Community employees.” But it is not at all clear, and the Committee does not attempt to demonstrate, that former Intelligence Community employees are “a key source of leaks.” In practice, the government already has strong legal authority to enforce prepublication review requirements, and the CIA is currently engaged in suing at least one of its former employees (“Ishmael Jones”) for an alleged violation of those requirements.
But the pending proposal may be worse than unnecessary, said Sen. Ron Wyden in a dissenting statement attached to the new Intelligence Committeereport. He said it could discourage whistleblowers and impede congressional access to information.
“My concern is that giving intelligence agency heads the 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, and particularly the rights of whistleblowers who report waste, fraud and abuse to Congress or Inspectors General,” Sen. Wyden wrote.
“It is unfortunately entirely plausible to me that a given intelligence agency could conclude that a written submission to the congressional intelligence committees or an agency Inspector General is an ‘unauthorized publication,’ and that the whistleblower who submitted it is thereby subject to punishment under [this provision], especially since there is no explicit language in the bill that contradicts this conclusion.”
“Withholding pension benefits from a legitimate whistleblower would be highly inappropriate, but overzealous and even unscrupulous individuals have served in senior government positions in the past, and will undoubtedly do so again in the future. This is why it is essential to have strong protections for whistleblowers enshrined in law, and this is particularly true for intelligence whistleblowers, since, given the covert nature of intelligence operations and activities, there are limited opportunities for public oversight. But reporting fraud and abuse by one’s own colleagues takes courage, and no whistleblowers will come forward if they do not believe that they will be protected from retaliation,” wrote Sen. Wyden, who voted against the pending bill.
