How Not to Fix a Leak

at-dianne-feinstein” src=”http://nationalsecuritylawbrief.com/wp-content/uploads/2012/08/Michael-Becker-Feat-dianne-feinstein-e1345561837237-150×150.jpeg” alt=”" width=”150″ height=”150″ />The 2013 Intelligence Authorization Act, known colloquially as the new Anti-Leak Legislation, is the perfect proposal for sanctimonious politicians in an election year.

Everyone hates leaks, save those pesky journalists who exploit them. An unauthorized disclosure of classified information can threaten national security and endanger American lives. Leaks, as their name suggests, are meant to be fixed.

But the anti-leak legislation passed in July by the Senate Intelligence Committee is the wrong solution to the problem, akin to treating a dripping faucet not with a wrench but with a stick of dynamite.

Nestled among 45 pages of proposals is Section 506, which would effectively restrict communication between members of the intelligence community and the news media, authorizing only the “Director and Deputy Director . . . and individuals in the offices of public affairs” to provide background briefings or off-the-record classified information regarding intelligence activities to the news media.

This requirement – and the provision in Section 501 requiring notification to the Congressional intelligence committee any time there is a classified disclosure – may seem reasonable to those in Congress who see leaks as a threat to our democracy. Those with a more nuanced viewpoint, such as journalists, and the intelligence officials affected most by this legislation, see the provisions as draconian and ill-fitting.

The disclosure of classified information by intelligence officials to journalists is not as transactional as an outsider may believe. And these days, the

shadowy figure disclosing classified information is not so much the rogue, low-level analyst with an agenda to pursue, but usually a manager authorized to do so. Indeed, all “leaks” are not created equal: For every unauthorized disclosure of classified information there are dozens of “authorized leaks,” meant to advance policy, gently warn foreign governments and inform the citizenry – often in that order.

In reality, a journalist who has ferreted out classified information in his or her reporting will contact the intelligence community merely seeking confirmation, or, at the very least, engage in a frank conversation about potential ramifications and consequences should that classified information see daylight. Oftentimes, what appears in print is less damaging than it would have been had the conversation not taken place.

The new anti-leak legislation threatens to chill those conversations, as Washington Post columnist David Ignatius points out.

“After 35 years of writing about intelligence matters, I want to confide a journalistic secret,” Ignatius wrote. “Most damaging leaks don’t come from

U.S. intelligence agencies. They come from overseas, or they come from the executive branch, or they come, ahem, from Congress. The bill doesn’t address the real source of the leaks it seeks to halt.

“It’s worse than that, actually: This bill may chill the conversations that now take place between journalists and intelligence officials when reporters do receive sensitive classified information (from overseas, let’s say) and want to know what damage its publication might cause. Those exploratory conversations will now have to be logged and reported to Congress, as evidence that a leak may be imminent. Guess what? This will mean fewer such conversations.”

It will also lead to more paperwork, bureaucracy, and a stable of uninformed journalists who are unwilling to tip their hand at what they have, knowing any communication with a designated member of the intelligence community would likely be documented and serve as the impetus of an investigation.

If Congress were really serious about curbing leaks, a more worthwhile pursuit would be to update the Espionage Act of 1917, an antiquated statute that makes it a crime to possess or transmit information relating to the national defense – which the possessor has reason to believe could be used to the injury of the United States or to the advantage of a foreign nation – to a person not entitled to receive it.

Better yet, the Senate Intelligence Committee could listen to those most affected by its misguided legislation and work with them to address the problem of leaks in a reasonable, nuanced fashion, because this is one election-year issue that should not be reduced to on-air talking points.