Screen shot from video of DNI James Clapper’s speech

Director of National Intelligence James Clapper has issued a directive that prohibits all employees of the intelligence community from speaking to the press.

Signed on March 20, it establishes a policy on “contact with the media,” which leadership in intelligence agencies believe will “ensure a consistent approach for addressing media engagement across the intelligence community and mitigate risks of unauthorized disclosures of intelligence-related matters that may result from such contacts.”

It does not differentiate between classified and unclassified information. Any detail pertaining to an “intelligence-related” matter, if disclosed to a member of the media, is “covered” by the policy. However, the policy apparently does not “apply to contact with the media in connection with civil, criminal or administrative proceedings.”

Any one who violates the policy can be subject to “administrative action that may include revocation of security clearance” or being fired.

Intelligence employees can talk to other fellow citizens, like family or friends who are not members of the press, about unclassified intelligence-related matters. Yet, apparently, if those family or friends are part of the media, they cannot talk about these matters at all.

For the purposes of criminalizing speech by intelligence employees, the policy adopts a broad definition of “media.” It is any person who engages in the “collection, production or dissemination to the public of information in any form, which includes, print, broadcast, film or Internet” or to a person who disseminates information “related to topics of national security.” The Standing Committee of Correspondents, which handles credentialing for Capitol Hill as well as political conventions and the inauguration, might want to consider adopting this inclusive definition.

The policy further indicates that intelligence community heads will “designate in writing” the “positions that are authorized to speak with the media.”

Authorized disclosures are what have fueled the routine obfuscations of the nature of the US surveillance state at “IC on the Record.” It is what led media to incorrectly believe that 54 terrorism plots had been thwarted by a National Security Agency phone records collection program. It is what led Clapper to give what he called the “least untruthful answer” when asked by Senator Ron Wyden if the NSA was collecting millions of records of Americans.

In other words, this will be a system where employees direct members of media to certain officials, who are in a position to provide intelligence community propaganda.

Clapper already issued an order in June 2012 to ensure federal employee lie detector exams included a question about leaks to the press. He also has presided over the implementation of an Insider Threat Program that McClatchy Newspapers reported equates “leaks” with “espionage,” encourages snitching and instructs employees to be on the lookout for individuals suffering from “narcissism” or “antisocial personality disorder.”

The Senate Select Committee on Intelligence, chaired by Senator Dianne Feinstein, actually tried to pass a similar policy included in a set of anti-leaks proposals, which Wyden successfully prevented from passing in 2012.

Wyden declared in a floor statement that this would lead to a “less-informed debate on national security issues, by prohibiting nearly all intelligence agency employees from providing briefings to the press, unless those employees gave their names and provided the briefing on the record.”

“It seems to me that authorized, unclassified background briefings from intelligence agency analysts and experts are a useful way to help inform the press and the public about a wide variety of issues, and there will often be good reasons to withhold the full names of the experts giving these briefings.”

He added, “I have seen no evidence that making it harder for the intelligence agencies to provide these briefings would benefit national security in any way, so I see no reason to limit the flow of information in this manner.

It was also Wyden, who made it clear, that members of Congress “often rely on the press to inform them about problems that congressional overseers have not discovered on their own.” He would not have found out about “serious government wrongdoing – such as the NSA’s warrantless wiretapping program, or the CIA’s coercive interrogation program” unless government employees had made disclosures to the press.”

*

The policy represents an expansion of regulations and legal opinion within government that treat disclosures as crimes regardless of intent. In fact, the directive mentions the President’s Intelligence Advisory Board and Intelligence Oversight Board, which is supposedly supposed to inform the president of intelligence activities that may be unlawful or contrary to executive orders. It notes that employees who become aware of intelligence activities “that appear to meet the criteria for reporting” unlawful activity are “responsible for informing” department leaders. And that President Barack Obama signed a presidential policy directive to protect “intelligence community employees” so they can “effectively report waste, fraud and abuse without fear of retaliation and while still protecting classified national security information” is included in the policy as well.

Clearly, the motivation of this part of the policy is to show that there are avenues for employees to report wrongdoing or misconduct. They do not need to be talking to the press. But, it is deceptive.

Senator Chuck Grassley, one of the few advocates for whistleblowers in Congress, tried to have provisions included in the Whistleblower Protection Enhancement Act. The White House worked with members of Congress and removed those provisions. Obama then proceeded, as Grassley said, “undercut support for those provisions” by issuing a directive that made it seem like “statutory protection was now unnecessary.  The final law that passed in November 2012 left intelligence whistleblowers at the mercy of the presidential directive. ”

In order for these provisions to matter substantially to intelligence employees, there would have to be a culture within the intelligence community that supported whistleblowing.

Clapper said in February that he favors “a system of continuous evaluation,” where the intelligence community “monitors” their behavior and “electronic behavior on the job as well as off the job” to see if there are “potential clearance” issues. This explicitly would intimidate employees from taking the risk of making whistleblower communications.

Also, this month, according to Grassley, “The Supreme Court denied a petition to hear an appeal from a case named Kaplan v. Conyers.  The Obama Administration’s position in that case, if allowed to stand, means untold numbers of federal employees may lose some of the very same appeal rights we tried to strengthen in the Whistleblower Protection Act.  It could be half or more of federal employees impacted.  Such a situation would undo 130 years of protection for civil servants, dating back to the Pendleton Civil Service Reform Act of 1883.”

“President Obama promised to ensure that whistleblowers have full access to courts and due process. However,” Grassley stated, “his administration has pursued the exact opposite goal here.”

The intelligence community, with the tacit endorsement of the Obama administration, has sought to circumvent the First Amendment.

In the case of Robert MacLean, a former TSA air marshal, the government tried to retroactively classify information in order to claim his speech was prohibited. MacLean may not have been an intelligence employee, but the Obama administration has appealed his case to the Supreme Court because it does not think the Whistleblower Protection Act protected his disclosure.

Thomas Drake, James Hitselberger, Stephen Kim, John Kiriakou, Shamai Leibowitz, Chelsea Manning, Edward Snowden and Jeffrey Sterling are all employees, who have been indicted under the Espionage Act—a World War I-era law intended to go after spies and not government employees who leak information. They represent the targets of an administration that has transformed the Espionage Act into a law against leaks and, as Manning’s defense attorney said, treat alleged violations as “strict liability crimes,” where the only intent required to convict is the intent to disclose.

So, Clapper’s directive should be seen for what it is: an effort to force employees to be silent about what is happening in the workplace and let the spin doctors in public affairs offices do all the talking.

It is intended to further ensure control over the flow of information and avoid future situations where officials like Clapper find they must explain to the press programs or policies, which they recognize will be alarming to the public.

During a speech at the GEOINT conference, Clapper claimed the intelligence community had declassified information in response to Snowden’s disclosures and coverage in the media because officials realized they needed “to engage in the kind of national conversation that free societies have - to correct misunderstandings that lead to false allegations in the media and to counter misperceptions that the intelligence community work force is violating civil liberties.”

This is not about keeping America safe by protecting sensitive information. Management at the top does not want the public hearing from lower-level employees because it might create “misperceptions.” It is best to chill the news gathering process and leave the public less informed so Clapper and future James Clappers are not inconvenienced or accidentally held accountable.