DNI’s media policy is a new gag order that cuts the flow of news

The Sunshine in Government Initiative strongly objects to Intelligence Community Directive 119 (ICD 119), which bans all but pre-approved contacts between the intelligence community and journalists and others who disseminate news and analysis.

The Directive has the practical effect of discouraging interactions with the media about unclassified issues that have nothing to do with national security and are the basis for the daily news about what is happening around the globe. Such conversations routinely take place without risking intelligence sources and methods.  The Directive cuts the flow of everyday news and leaves the public with fewer tools to understand and maintain confidence in the work of the government on matters relating to foreign affairs and national security. The Directive does little, if anything, to mitigate possible harms from unauthorized disclosures. Quite the contrary, it may result in the publication of incorrect – and potentially harmful – rumors and information, and makes harder the task of understanding what can be shared publicly and what truly should remain secret.

The media respects and shares the government’s interest in keeping certain information secret to protect national security. At the same time, our system of government depends on an informed public that has access to accurate information on world events and on what the government is doing to face today’s challenges.

We encourage the immediate withdrawal of this directive and suspension of this and any other policy allowing only pre-approved contacts between the intelligence community and the media.

Instead, we encourage the government, especially leaders of the intelligence community, to engage in a dialogue with the media and others who contribute to the public’s understanding of current events. Our nation’s founders understood that there will be a sometimes tense relationship between the government and the press. It was already true when the country was founded and it remains true today.  But “tense” does not equate to “bad” or “unproductive.” Government and media leaders have in the past communicated concerns to one another and better understood each other’s perspective. We urge the government to restart these conversations, recommitting to an ongoing dialogue on national security reporting with a focus on sharing any concerns about sensitive reporting and mitigating any possible harms the government foresees from such reporting.

Background

What ICD 119 does. While media and open government advocates celebrated Sunshine Week on March 20, 2014, Director of National Intelligence James Clapper was issuing Intelligence Community ICD 119.

Applying to all 17 agencies that comprise the intelligence community, ICD 119 bans unapproved contacts with a broad array of media entities and anyone “otherwise engaged in the collection, production, or dissemination to the public of information in any form related to topics of national security, which includes print, broadcast, film and Internet.” (Subsection C(4)(b)) ICD 119 vastly expands secrecy beyond protections for classified information, including, but not limited to, intelligence sources and methods, to include even unclassified information.[1] By extending the gag order to intelligence “activities and judgments,” the directive includes the very information relevant to a story that the public deserves to know without compromising national security.

ICD 119 has Far-Reaching Impacts on the Public

ICD 119 significant affects newsgathering which, in turn, adversely affects the public’s ability to understand and oversee the affairs of key government activities.  It is likely to reduce the overall amount of information – even unclassified information – available to the public. That information which is published or otherwise communicated is more likely to be presented in a one-sided fashion consisting of the government’s views of the issue. The overall result is likely to be the opposite of the drafter’s intentions:  information published about intelligence activities could actually endanger our interests and the public’s trust in government is likely to be reduced.

First, ICD 119 damages the flow of everyday news on national security and foreign affairs matters. This policy restricts public access to the understanding and viewpoints of subject-matter experts within the intelligence community. It cuts off the ability of academics, subject-matter experts, civil society groups and the public to accurately debate policy issues and hear dissenting viewpoints. Such access often brings to light disagreements, which help add context and show the hard choices that the government often faces.

In addition, the procedure for gaining authorization to speak to the media is so unworkable it is likely to lead to fewer conversations with the media and less informed coverage of important national security and foreign policy issues. Approved individuals could contact the media but have to record it.  Agencies must designate in writing the person(s) authorized to speak with the media – and it is unlikely that intelligence agencies will liberally grant such authorizations. Employees without authorization must report unplanned media contacts. These procedures make it far less likely that sources will speak with the media.

ICD 119 leaves the public with filtered news and commentary. The new policy increases the likelihood that intelligence-related information will be propagandized and filtered through the interests, priorities and perspectives of whoever resides in the Oval Office. Given that Members of Congress often hear of government shortcomings from the news media, the directive cuts off the ability of Congress to spot issues for effective oversight.

Second, ICD 119 further inhibits public understanding of and confidence in the work of the intelligence community. Allowing only senior officials to decide who speaks with the media and on what topics politicizes the “judgments” the public hears from the intelligence community. The directive heightens public distrust of the intelligence community and the government’s national security efforts at a time when the intelligence community’s legitimacy has been called into question. Historically, a lack of transparency by the intelligence community (or any part of government) results in the loss of public trust.  At a time when many are already questioning various agencies, such as the National Security Agency’s bulk collection and surveillance programs, ICD 119 is likely to only exacerbate public suspicion.

Third, ICD 119 does little to nothing to reduce the possibility of harms from unauthorized disclosures.  Rather than focusing on curtailing all except the most senior officials’ contacts with the media, the government ought to better engage the press and public to address possible harms to national security from disclosures. The reporters who regularly cover national security issues report such stories responsibly, determining – often after consultation with government officials – what information is important for the story and what information should be protected.

Fourth, the government ought to lean toward transparency by engaging the public (and media) more effectively before, after and during a time-sensitive conversation with a journalist about a particular story. Reporters complain that government claims that harm will result are often overstated or unsubstantiated. If harm has resulted or is foreseen from disclosure of a particular part of a story, the government should be more forthcoming about those concerns. The government should thoughtfully declassify information that would allow the public to better understand possible harms that have resulted from past disclosures. The government should also engage with editorial leaders periodically to discuss concerns about particular stories and better understand reporters’ sensitivities.

ICD 119 is a Rejected Policy

After public outcry, previous lawmakers and administrations rejected similarly overbroad responses to unauthorized disclosures. In 1983, the government quickly rescinded a similar ban on contacts with the media as part of National Security Decision Directive 84. More recently, in 2012, Congress rejected similar, overbroad anti-leaks prohibitions proposed by the Senate Intelligence Committee as part of the Intelligence Authorization bill for fiscal year 2013.

The practical impact of ICD 119 is to make it much less likely that the public will hear about policy controversies, mistakes or embarrassments that occur in any administration no matter which party resides in the White House. By way of example, the White House recently pledged that the Central Intelligence Agency would no longer use immunization programs as a cover for covert activities. That pledge came in response to concerns raised by deans of leading public health schools, who pointed out that the safety of public health workers around the globe depends on the clear separation of such programs from political factions and violent hostilities. Those concerns would never have been aired if not for the reporting by news organizations on the U.S. government’s efforts to track down Osama bin Laden.

Access to experts within the intelligence community is vital for the public to have accurate information to put stories in context and to ensure that publication will not, in fact, harm individuals or the United States. Requiring all but a few senior officials to obtain specific, daily authorization to continue speaking with the media, even to discuss possible harms from stories about to go to press, simply crosses the line our nation’s founders drew between the government and the people.

For the above reasons, we strongly urge the DNI to rescind this policy. To further the vital goals of protecting national security and free flow of news and information vital to our democracy, the government should focus its efforts on mitigating the possible harms that officials assert may result from unauthorized disclosures.   We pledge to work with you to find a better way to protect government secrets but maintain public access to valuable information.

Silencing all but approved voices tilts the scales too far toward secrecy. In the end, ICD 119 is bad for informed public debate, informed policymaking, and the system of government our founders envisioned based on consent of the governed.

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[1] Member agencies of the intelligence community are: the Central Intelligence Agency (CIA); Department of Energy’s Office of Intelligence and Counterintelligence; Department of Homeland Security’s Office of Intelligence and Analysis; Department of State Office of Intelligence and Research; Department of Treasury Office of Intelligence and Analysis; Defense Intelligence Agency; Drug Enforcement Agency; Federal Bureau of Investigation; National Geospatial Intelligence Agency; National Reconnaissance Office; National Security Agency; Office of the Director of National Intelligence; U.S. Air Force Office of Intelligence, Surveillance and Reconnaissance; U.S. Army Office of Army Military Intelligence; U.S. Coast Guard Office of Coast Guard Intelligence; Marine Corps Intelligence Agency; U.S. Navy Office of Naval Intelligence. Source: intelligence.gov, available at http://www.intelligence.gov/mission/member-agencies.html, accessed May 16, 2014.

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