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July 31, 2012

Senate Proposals Are Less About ‘Leaks,’ More About Shutting Down Whistleblowers

Posted in: Freedom of Information,Press Freedom,Secrecy,Whistleblowers

NSA whistleblower Thomas Drake

Anti-leaks proposals approved by the Senate Intelligence Committee as part of an intelligence authorization bill on July 24 became public yesterday. Politicians claim the proposals are a response to “leaks” on cyber warfare against Iran, Obama’s “kill list” and a CIA underwear bomb plot sting operation in Yemen. They supposedly would prevent “unauthorized disclosures” of “classified information” from people who are not authorized to “leak.” But, the truth is this obscures the reality, which is that hysteria over leaks has created a politically manufactured crisis of which politicians like Sen. Dianne Feinstein are taking advantage  to enact measures that in their totality would function like an Official Secrets Act.

The proposals show the Senate Intelligence Committee wants to not only criminalize those who disclose information in order to cause harm to the national security of the United States but also seeks to criminalize those who do so with the sole intent to make the information public. The measures go beyond the Espionage Act. In pieces, a kind of state secrets statute would be in force if they were signed into law.

The Senate Intelligence Committee, which is chaired by Feinstein, has proposed the following: Congress be notified when “authorized public disclosures of national intelligence” are made; “authorized disclosures” of “classified information” be recorded; procedures for conducting “administrative investigations of unauthorized disclosures” be revamped by the Office of the Director of National Intelligence (DNI) ; the DNI assess the possibility of expanding procedures for detecting and preventing “unauthorized disclosures” to other Executive Branch personnel; certain people be prohibited from serving as consultants or having contracts with media organizations; only a limited number of individuals in intelligence agencies be permitted to speak with members of the media and that responsibilities intelligence community employees have to protect “classified information” be made clear.

The anti-leaks proposals also call for disciplinary measures against people who violate “classified information” by making “unauthorized disclosures.” This includes: letters of reprimand, placing notice of violations in personnel files and informing congressional oversight committees of such notices, revoking security clearances, prohibiting employees from obtaining new security clearances and firing employees. Additionally, a provision would also make it possible for an employee to lose his or her federal pension benefits if they were responsible for an “unauthorized disclosure.”

Thomas Drake, a former National Security Agency who blew the whistle on fraud, malfeasance and how the agency was violating the privacy of citizens, finds the proposals are a result of the government’s failure to make an example out of him.

“They couldn’t make the case with me by going after a whistleblower and scapegoating me,” so now they have to go another route. He mentions the prosecutions against two other whistleblowers under the Espionage Act, Stephen Kim, a former State Department contractor whose case has essentially been suspended, and Jeffrey Sterling, a former CIA agent whose case the Justice Department moved to a higher court, have also failed to produce the desired outcome. He believes that by convicting him the government would have created a de facto Official Secrets Act, as it would have been much easier for the government to pursue individuals who made “unauthorized disclosures” to the media or public.

When one breaks down the proposals, it really does seem like this is less about leaks and more about shutting down avenues for whistleblowers. Two of the most egregious examples are proposals involving the surrendering of pension benefits for  ”uanuthorized disclosures” and the prohibitions against former employees, who want to become “consultants” or enter into contracts with media organizations.

A letter to the Senate signed by civil liberties, open government and watchdog groups argues the policy would not “protect” the “nation’s legitimate secrets” but would instead open the door to “abuse” and chill “critical disclosures of wrongdoing.” It describes how the measure on surrendering pension benefits is an “extreme approach” to security that “would imperil the few existing safe channels for those in the intelligence community who seek to expose waste, fraud, abuse, and illegality. Conscientious employees or former employees considering reporting wrongdoing to Congress and agency Inspectors General, for example, would risk losing their pensions without adequate due process.”

The groups condemn the “extraordinary authority” granted to the DNI and intelligence agency heads to “penalize federal employees.” They contend directors or heads would be able to deprive employees of pensions without any judicial review. It rejects the idea that decisions to strip employees of benefits should be permitted to go through an “independent due process” because, in the provision, “there are no definitions of who is ‘authorized’ to receive classified information or other terms, or legal burdens of proof for an agency head’s authority to ‘determine’ an improper disclosure has occurred.”

With regards to the provision on employees entering into media contracts, it would not only impose a prohibition on officers, employees or contractors of the federal government, who possess active security clearances, or members of an “advisory board” to any part of an intelligence agency but would also prohibit former officers, employees or contractors from providing analysis or commentary on “matters concerning the classified intelligence activities” of any intelligence agency.

As the intelligence authorization bill outlines, it would cover anyone who:

(a) has left the employment or service of the Federal government during the previous 1 year period; and

(b) possessed a security clearance allowing access to top secret, sensitive compartmented information at any time during the 3 years prior to leaving such employment service

The Center for National Security Studies has rightfully condemned this measure as something that “would unconstitutionally prohibit former government officials from providing public commentary through the media if they are paid for doing so.” The Center adds:

…Such government officials are already prohibited by both law and contract from disclosing classified information. But this provision would go much further and prohibit paid public commentary on “matters concerning the classified intelligence activities of any element of the intelligence community or intelligence related to national security.” The provision would prohibit paid public commentary, including op eds, on matters vital to democratic public debate, including for example, the use of enhanced interrogation techniques, government surveillance powers, targeted killings, procurement scandals, etc. It would apply for one year after leaving government employment – the time period when the former official’s analysis may be most useful to the general public. The over-breadth of this provision in prohibiting commentary and analysis even when no classified information is disclosed would violate the First Amendment. Indeed the provision seems drafted in order to chill public discussion of information that is not classified, rather than being narrowly tailored to simply target disclosures of classified information… [emphasis added]

Another proposal that should raise alarm is provision that the calls for the DNI to “improve the process for conducting administrative leaks investigations, including a requirement to proactively identify leaks and take administrative action when necessary.” Intelligence employees will now be required to answer a question on whether they have leaked “restricted information” to journalists or the news media when they take a polygraph test that all employees have to take every seven years. They will also be subjected to an environment that further chills freedom of speech, as they could be issued “letters of reprimand” if they are “suspected” of being involved in a “leak.”

To an extent, the DNI has already proactively moved to institute anti-leaks measures. The Senate Intelligence Committee goes a step further encouraging the use of polygraph tests to be expanded to “detecting and preventing unauthorized disclosures” to “additional Executive Branch personnel.” It calls for the “standardizing the questions used during polygraph examinations regarding disclosures of classified information and contact with the media.

Red flags should be raised here. A recent McClatchy investigation found the National Reconnaissance Office (NRO), a spy agency, has been putting polygraph examiners under pressure to obtain personal information on employees and those who apply for jobs. It found that examiners are abusing the exams by seeking “lifestyle” or personal information that are outside the scope of the test, such as details on deviant/criminal sexual behavior, alcohol abuse, illicit drug use, serious criminal activity, unexplained wealth, financial irresponsibility, personal conduct-related behaviors that “call into question the examinee’s trustworthiness and ability to protect classified information and psychological conditions.” This is a blatant violation of procedure, however, it is incentivized with bonuses and positive performance reviews, according to Mark Phillips, an NRO whistleblower.

A measure like this could easily be used to profile individuals. Any employee who was disaffected or not a “team player” could be weeded out of an agency leaving only individuals who were willing to tolerate fraud, inefficiency or criminal activity within the agency because they do not want to risk losing their job.

Then, there’s a measure that would likely bring an end to background briefings. As a Washington Post editorial published today explains, it “would prohibit anyone but the director, deputy director or public affairs representative of an intelligence agency from providing ‘background or off-the-record information regarding intelligence activities’ to the media. Those at the top could go on talking, while lower-level experts or anyone who might have contrary views would be blocked.” The righteously angry editorial also notes the proposals would also “extend the reach of pre-publication review by the intelligence community to include not only manuscripts but also ‘anticipated oral comments.’”

The editorial board contends the provisions have been “poorly drafted” because the provisions do not define “the media.” They wonder if “media” includes “book publishing or social media.” What about “a 140-character tweet.” Would that violate the law? They find this to be “hastily conceived” legislation. But, why should anyone believe that this is not what Feinstein and her clients in the intelligence agencies want to be imposed on the press and public in the United States?


Days ago, I wrote that the proposals are specifically designed to make it more difficult for reporters to talk to sources in the lower levels of intelligence agencies and that low-level employees face an even greater possibility of prosecution or retaliation if they open their mouth and educate the public on the way things really work inside of an intelligence agency. They would escalate the war on whistleblowing and further entrench a culture in the Justice Department that favors criminal prosecutions of leakers—a culture that already exists and chills freedom of the press. They would make it easier for high-ranking officials to talk even more openly about national security secrets without consequence. Even if these secrets were widely known, lower level employees would not be able to discuss such secrets, despite the fact that they might be part of a conventional wisdom that functions in a propagandistic way and provides cover for clear abuses of power.

The government wants to chill the use of internal protected communication under the guise of preventing “leaks.” The widespread surveillance of FDA scientists—That is not an abnormal abuse of power within an agency to the people pushing these proposals.. It is the new normal that all government agencies, especially intelligence agencies, would like to have the freedom to carry out when they feel they are faced with disgruntled employees, who pose a risk to key agendas of the agency.

The Washington Post and other media organizations are right to call for repairs to “a dysfunctional system that wildly overclassifies documents.” So much information that is “leaking” is likely information that is improperly classified. It is information that high-ranking officials might talk about but yet no declassification of this information occurs so, essentially, a class of elites in government are able to give comments no one in the lower levels of government can challenge if it is pure fabrication. It is information used to bogusly prosecute whistleblowers like Drake. The press should be appalled. They are crude and show US senators on this committee have a deep contempt for democracy.  However, members of the press should own up to the fact that their acquiescence to power in order to preserve access to government officials has contributed to this development.

The current culture and political climate makes it likely that one day Americans who desire public debate on national security matters will only be able to turn to official press conferences or conferences like the Aspen Security Forum for information. Panel hosts like CNN’s Wolf Blitzer will show up and facilitate the sharing of propaganda with the public. They will not push too hard against comments made by officials because they recognize that this is the only or one of the only times that high-ranking officials from the intelligence community ever speak publicly on matters. They will joke about secrecy. Reporters will write up articles that report what was said, which will mostly be propaganda. It also will include information that, if any low-level employee had shared it, would lead to his or her security clearance being revoked. All of this already happens but imagine a future where the extent of public debate on national security is limited to such fora.

There would be no free flow of information in society. Journalists, who do not assimilate to this culture, will not get the opportunity to help their media organization be a conduit for propaganda. They might even have their credentials revoked and lose their ability to come in contact with any government employees. And should they empathize with low-level government employees who are trying to expose corruption, they would find themselves isolated and possibly even dragged before some ad-hoc committee or grand jury setup to shield those in power from accountability.

This is the path, which the country is headed. From WikiLeaks to Obama administration “leaks,” a massive clampdown on speech and freedom of the press is underway.

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