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Project on Government Oversight

An Open Letter to United States Senate: Oppose the Anti-Speech Policy in the Intelligence Authorization Bill

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April 20, 2011

Our undersigned groups are writing to oppose a troubling provision in the Intelligence Authorization bill, S. 719, Section 403, which threatens free speech rights of current and former federal employees in the intelligence community.

Section 403 grants the Director of National Intelligence (DNI) and intelligence agency heads extraordinary authority to penalize federal employees in the intelligence community, including depriving them their pensions. They can do so without a criminal conviction, based on their “determination” that an employee knowingly violated a non-disclosure agreement by disclosing classified information to “unauthorized” persons or entities.”

Current law already allows the government to strip pension benefits from employees or former employees convicted of illegally disclosing classified information (Section 8312(c) of title 5).  Revocation of a pension earned through decades of loyal service to this nation is an extraordinary penalty that should not be imposed unless the government proves guilt beyond a reasonable doubt in a court of law.  This legislation would remove independent due process by giving the DNI the power, even where no charges are brought against the employee,  to establish the procedures for fact finding, appeal, or review of an agency determination that classified information was improperly disclosed to unauthorized persons.  Such procedures do not provide the independent due process and public accountability afforded in criminal trials.

Thus, Section 403 would give intelligence agency heads nearly unrestrained discretion to suppress speech critical of the intelligence community – even after an employee has resigned or retired from an intelligence agency – and to retaliate against disfavored employees or pensioners, including whistleblowers. Allowing the DNI and agency heads to take pension benefits away from employees in secret with no oversight or judicial review would not protect against unauthorized leaks, it would only open the door to abuse.

Section 403’s extreme approach would imperil the few existing safe channels for those in the intelligence community who seek to expose waste, fraud, and abuse. Conscientious employees or former employees considering reporting agency waste, fraud, and abuse to Congress and agency Inspectors General, for example, would risk losing their pensions without due process.

We are not reassured by the committee report, which suggests these rights will not be undermined. For this policy, legislative history is an inadequate substitute for codified rights. The legislation itself lacks any framework for independent due process: there are no definitions of who is “authorized” to receive classified information or other terms, or legal burdens of proof for an agency head’s authority to “determine” an improper disclosure has occurred. Agency chiefs have nearly blanket, unrestricted discretion. As a result, the finding could be based on suspicion, speculation, or in retaliation for the exercise of employee rights. Under this legislation those arbitrary judgments will be unreviewable.

In conclusion, Section 403 is not an anti-leaks policy, it’s an anti-speech policy.

We urge you to oppose the Intelligence Authorization Bill so long as the proposed policy in Section 403 remains. We welcome an opportunity to discuss this further with you and your staff.  You may reach us by contacting Angela Canterbury at the Project On Government Oversight at 202-347-1122 or acanterbury@pogo.org

Sincerely,

American Civil Liberties Union

American Library Association

Bill of Rights Defense Committee

Center for Media and Democracy

Defending Dissent

Essential Information

Government Accountability Project (GAP)

Human Rights First

Liberty Coalition

National Coalition Against Censorship

National Whistleblowers Center

OMB Watch

OpenTheGovernment.org

Project On Government Oversight (POGO)

The James Madison Project

Workplace Fairness

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