POSSIBLE SECURITY PROVISIONS COULD CHILL PRESS FREEDOM

Saturday, November 6, 2004

A coalition of journalism groups is very concerned that the bill establishing a national intelligence director will emerge from conference committee with provisions that would make it harder to expose government misconduct as well as making the nation safer.

Given the tendency of officials to try to restrict public access to information that makes them look bad, the former outcome is unfortunately more likely than the latter.

The National Conference of Editorial Writers, to which I belong, has an informal committee that recommends whether the organization should take a position on public issues. Last week, committee members were asked about a proposed letter from the Coalition of Journalists for Open Government (www.cjog.net) to members of the conference committee currently trying to reconcile the House and Senate versions of the intelligence reorganization bill.

"You might ask," wrote Pete Weitzel for the coalition, "why the bill is so far along and we're just waving the flag." He goes on to say that the language of the bill doesn't overtly talk about secrecy provisions, but combined with parts of the Homeland Security Act, it would allow the intelligence director "to dramatically expand the use of gag measures like polygraph tests, pre-publication review, mandatory logging of journalist contacts, and nondisclosure agreements."

The letter, which the edit writers' group did sign, is careful to point out that journalists recognize the need to share intelligence information more broadly among agencies, and that entails being sure that it won't be inappropriately disclosed. The problem is that the policies to implement security will apply to lots of things that aren't in need of such protection.

"However, we are also mindful" the letter says, in politely understated terms, "that in the past the government has overreached in seeking to limit the ability of government employees to speak to the press or to otherwise express their views to the Congress or the public."

Past directors of the Central Intelligence Agency, for example, have done, or tried to do, all of the things mentioned above. But that's just the CIA. Under proposed regulations for the Homeland Security Act, whatever policies the new intelligence director adopts will apply also to people with whom intelligence is shared. That could include, the letter says, state and local law enforcement personnel, other state and local government employees, officials and contractors, people who control or protect privately owned critical infrastructure and transportation systems and a variety of first responders including doctors, hospital workers and pharmacists.

The Office of Management and Budget says the total number of people affected might be as much as 4 million.

It's easy for this secrecy business to go overboard. The Rocky Mountain News reported Friday that Colorado's homeland security law is so broad that, for instance, the public can't find out how $100 million in federal homeland security grants has been spent. It's not that we need details about -- since it is secret, I'm just guessing here -- the security provisions intended to keep people from putting poison in a reservoir. But we ought to know -- again, this is hypothetical -- if a couple of dozen local officials spend a week attending a "homeland security" conference on some beautiful tropic island or somebody is taking kickbacks on equipment purchased for the program.

That is, as we all know, the kind of information that sometimes emerges from a whistleblowers' tip. If whistleblowers are required to document every contact with a journalist, the number of tips will be dramatically lower. And a reasonable certainty that the public won't be able to find out about whistleblower bait will just encourage the kind of behavior that causes whistles to blow.

The coalition isn't saying that the intelligence director, or the heads of all the agencies that will come under his authority, shouldn't have this much discretion. But it recommends that Congress should ensure that it maintains oversight because "the imposition of information controls on Americans never before subject to such obligations . . . could unnecessarily encumber the customary daily communications between officials, citizens and the media."

Sharing information is essential to improving security. Dismantling the "wall" between the CIA and the FBI that Jamie Gorelick was at one time so proud of might not have prevented the terrorist attacks of 9/11, but its existence certainly made prevention harder than it would otherwise be. The risk here is of erecting a new wall, this one between anyone even remotely connected with security and everybody else.