Alert 10/29/04

Ten days ago, we asked you to sign a letter to House and Senate conferees on the intelligence bill. Now we’re back -- with another letter to go to the same group on the same bill. This one is even more critical.

First a quick update. . We’ve made some progress on the FOIA exemption at the staff level through a series of meetings, and developed optional language. There was a genuinely mad behind the scenes scramble by lawmakers this past week to come up with a compromise, but it didn’t happen. We had our change ready if there had been any movement.

We’ve also given the bills an intense re-reading and that, along with discussions with some key Hill staffers and some sources in the intelligence community, has surfaced a series of drafting problems that prompt this note and the attached letter. “We” means, in this case, the Information Trust’s Scott Armstrong, the NAA’s Paul Boyle and Jeff Smith, former counsel to the CIA whom the NAA has retained to help on this.

The attached letter has been carefully crafted by Jeff to raise the issues and set the stage for us to provide specific fixes to key staffers in the coming week or so, before the committee gets back to work.

Briefly, here’s what we fear. Either of the bills would allow the director, or the 15 agencies under his umbrella, to impose a “virtual official secrets act” to gag not just federal employees but perhaps millions of state and local officials who provide or are provided sensitive but not necessarily classified information. In many ways, the potential reach of this legislation is far greater than the two official secrets acts that heavy media pressure was able to stop in the past. The result could be that many existing news and information sources will be shut down, both at the federal level and locally.

You might ask why the bill is so far along and we’re just waving the flag. Mostly because we didn’t initially recognize the possible consequences. There is nothing overt in either bill, nothing that directly says this. But the language in several areas along with the impending implementation of section 892 in the Homeland Security Act gives such sweeping authority to the new National Intelligence Director that he and the agencies he supervises could dramatically expand the use of gag measures like polygraph tests, pre-publication review, mandatory logging of journalist contacts, and non-disclosure agreements.

We’re asking Congress to impose some oversight in these areas, and insist on review of any of these measures before the director or an agency goes forward.

The letter is attached. Please get back to me as quickly as possible on whether your organization wants to be a signatory.

Pete Weitzel