Aug. 2: This post has been corrected.

Accusations continue
to fly from lawmakers and presidential hopeful Mitt Romney that the Obama
administration has leaked national security information for political gain. Leaks,
of course, are nothing
new in Washington, but now the Senate has jumped into the fray, with a new
proposal to tighten control over the flow of information between intelligence
agencies and the press.

This summer the Justice Department opened
two investigations into leaks about a foiled terror plot and U.S. cyber-attacks
against Iran. But leak prosecutions haven’t always proved easy. As we’ve
explained before, there’s no single law criminalizing the disclosure of
classified information. National security leaks are sometimes prosecuted under
the Espionage Act, which has been used a
record six times under Obama, but there is perennial debate over whether to
introduce more stringent laws against leaks.

On Monday, the Senate Select Committee on Intelligence filed
new anti-leak legislation. The bill wouldn’t amend the Espionage Act, or
make any blanket criminal penalty for leaks. But it does include several
provisions that could stymie reporting on national security.

One provision would require intelligence employees to report
all contact with the media. This goes farther than most existing policies; a
standard intelligence polygraph question asks whether employees have leaked
classified information, but not about any media contact. The measure also
doesn’t define “media,” or “contact”—does a blogger, or think tank count?

Prospects for the anti-leak provisions aren’t clear. Previous
attempts to pass anti-leak legislation over the past decade have failed,
usually faltering on concerns about whistleblower protections and press
freedom. Senator Dianne Feinstein, D-Calif., who chairs the intelligence
committee and helped author the proposed measures, told Politico that she would
be open to revising
the bill.

Other language in the bill states that only a director,
deputy director, or designated public affairs staff of an intelligence agency
“may provide background or off-the-record information on intelligence
activities” to the media. As the Washington Post noted, that would make standard
background intelligence briefings on unclassified information by CIA and
other analysts illegal. (Intelligence employees could still give authorized,
on-the-record interviews, but those, of course, are rare because those
employees usually need to protect their identities).

Tom Devine, legal director for the Government Accountability Project, said that those two provisions amounted to “a gag order on unclassified
information,” which could violate whistleblower and free speech protections.

Gregg Leslie, the interim director of the Reporters Committee
for Freedom of the Press, says that the restrictions would hamper reporting on
sensitive issues, but not because they stem leaks. “It’s not all about getting
a scoop on some hot story, it’s about getting the facts straight,” he said.
“You need to be able to bounce your ideas, your theories, your tips from a
million sources, off of someone in the government who knows what’s right.” The
Reporters Committee supports other media groups who filed
a memo opposing the bill.

Another provision of the bill asks the Attorney General to
consider changes to the Justice Department’s leak investigations, including its
policy of only rarely subpoenaing journalists because of the First
Amendment implications.

The Senate bill focuses almost exclusively on the
intelligence community. It mostly doesn’t cover the White House, most of the State
Department, much of the Pentagon, and Congressional aides with security
clearance.

The measures would also require the Director of National
Intelligence, who oversees the 17-agency “intelligence community,” to set up
new procedures for reporting leaks, and to specify internal punishments. Even
if a leaker was not subject to criminal prosecution, they could lose their
federal pensions, and if the information they disclosed was about a covert action,
their security clearance would be permanently revoked.

Some of that overlaps with existing agency policies—government
employees and contractors with security clearance already usually have to sign
non-disclosure agreements, and in June, the Director of National Intelligence introduced
his own beefed-up anti-leak measures.

But Senator Ron Wyden, D-Ore., who cast the sole vote
against the bill in committee, wrote in
a commentary that he was concerned about the bill’s implications for
whistleblowers. The provision that someone could lose their pension if they
were “determined” to have leaked, Wyden wrote, is vague and could potentially
be used to retaliate against whistleblowers.

The bill also describes the seemingly paradoxical official
leak, or “authorized disclosure.” Officials would be required to notify
Congress of any disclosure of classified information to the media or others. The
report must specify why the disclosure was authorized, and whether the
information was specifically declassified for disclosure or if it remained
classified.

It’s not clear what Congress could do if they believed that
an “authorized disclosure” was wrongfully disclosed. Spokespeople for Senators
Feinstein and Saxby Chambliss, R-Ga., vice-chairman of the intelligence
committee, did not respond to requests for further comment on the bill.
Responding in
Politico to criticisms of the bill, Feinstein said that “we know there’s
harm done,” to national security by leaks and that it was “worth a trial” to
stem the danger.

The proposals for tighter control over
classified information come at a time when members of Congress have complained about the
administration’s lack of transparency on several classified programs—in
particular, the CIA’s drone program and the targeted killing of terror suspects—which
they say has hampered Congress’ oversight role.

Since 9/11, the amount of
information classified and the number of people with security clearance has
ballooned, to more than 4.8
million people. This has led some to question
whether “classified” always describes truly sensitive national security
information. Leslie, of the Reporters Committee for Freedom of the Press,
described it as “an old steam boiler — the answer is not always to patch
the leaks but to relieve the pressure. Imposing so much secrecy means people
are more likely to leak.”

In July the Pentagon announced
that it would be instituting “top-down” monitoring of the press for leaked
classified information. Journalists and transparency advocates have criticized
the initiative, worrying that it could stifle reporting.

A Pentagon spokesman said Monday that exactly how that new
policy will be implemented was still being finalized. He said that the effort
was meant to identify when classified information has come out in the news, not
to monitor journalists as they report. Per a preexisting Pentagon policy,
Public Affairs officers are supposed to be “the sole release authority for all
DoD information.”