WASHINGTON — The first question to ask about the draconian anti-leaking legislation passed by the Senate intelligence committee last week is whether it applies uniformly to all branches of government that may disclose classified information unlawfully.
And the answer is: Of course not. Members of Congress and their staffs are entirely exempted from the new rules that may require for others more polygraphs, more paperwork and possible loss of pension benefits. White House and other executive branch officials (weren't they the supposed targets?) are also exempt from most of the new rules.
No, Sen. Dianne Feinstein's bill does the usual congressional thing when there's a flap involving intelligence matters: It whumps on the intelligence agencies themselves. That's where the committee's jurisdiction lies, and so that's where the hammer falls.
But after 35 years of writing about intelligence matters, I want to confide a journalistic secret: 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.
Even journalists would agree that a mind-boggling amount of classified information winds up in print (and has for decades) — and that potential sources may wonder if America can keep secrets. In other words, there's a real issue here, worth debating.
But the Feinstein bill has so many bad provisions that it needs another careful look. To wit:
The bill creates a cumbersome system whereby the executive branch must tell Congress each time it intends to make an “authorized” disclosure of previously classified information. A practical example was the administration's decision to declassify and disclose some of Osama bin Laden's communications this year. The question is: Why is this sort of disclosure a concern of Congress, requiring concurrent notification?