New intel orders: Don't talk about leaks already in the public domain

Public communications policy within the intelligence community will get new restrictions, reports the New York Times’ Charlie Savage and by Secrecy News’ Steven Aftergood, especially on leaked material. Currently, intel officials could comment on material already in the public domain as long as they took care not to confirm or deny its content. If DNI James Clapper accepts a proposed new rule, a gag rule will be placed on any such material:

The Obama administration is clamping down on a technique that government officials have long used to join in public discussions of well-known but technically still-secret information: citing news reports based on unauthorized disclosures.

new pre-publication review policy for the Office of Director of National Intelligence says the agency’s current and former employees and contractors may not cite news reports based on leaks in their speeches, opinion articles, books, term papers or other unofficial writings.

Such officials “must not use sourcing that comes from known leaks, or unauthorized disclosures of sensitive information,” it says. “The use of such information in a publication can confirm the validity of an unauthorized disclosure and cause further harm to national security.”

Failure to comply “may result in the imposition of civil and administrative penalties, and may result in the loss of security clearances and accesses,” it says. It follows a policy that James R. Clapper Jr., the director of national intelligence, issued in March that bars officials at all 17 intelligence agencies from speaking without permission to journalists about unclassified information related to intelligence.

It’s worth musing on how this would have been received had the Bush administration proposed this kind of a rule. There would have been much wailing and gnashing of teeth from the media, claims of imperiousness and opacity, and certainly a large public debate about it. We might even have heard the ominous-yet-incoherent rumblings about a “unitary executive.”

And … it might have been legitimate. In essence, the new rule attempts to prevent people from discussing what everyone else is free to discuss. One former official called this a prior restraint on free speech, which is forbidden by the First Amendment. However, people who agree to accept security clearances have already accepted a “prior restraint” on their speech in regard not just to explicitly classified material, but also to sensitive material and proprietary material as well. Note that the consequences of speaking about this material do not include prosecution, but essentially a pink slip — after all, intel officials without security clearances are pretty much useless, except as spokespeople, and being glib about the work isn’t a boon for that position either.

Still, this seems excessive. The issue about lack of security in the intelligence field isn’t ex post facto discussions of leaks, it’s the leaks themselves. Once the material gets out into the open, why crack down on the people who comment on it to supply needed context? Go after the leakers, and the problem is solved. This makes the Obama administration look a little paranoid and obsessive — which is what the media used to say about the Bush administration for fewer reasons.

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