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December 31, 2012

Anti-Leaks Provision in Intelligence Authorization Bill May Encourage Selective Leaking

Posted in: Secrecy,Security,War on Terrorism,Whistleblowers

The White House shared classified information about the bin Laden killing while concealing key aspects & refusing to fill FOIA requests

Though most of the anti-leaks proposals in the Senate were droppedfrom the intelligence authorization bill, one provision remains in the bill that could potentially encourage selective leaking.

One section of the bill requires government officials “responsible for making certain authorized disclosures of national intelligence or intelligence related to national security to notify congressional intelligence committees on a timely basis with respect to such disclosures.”

The bill indicates the intent of the provision is to ensure committees are made aware of such disclosures so they can be “distinguished from unauthorized ‘leaks.’” However, Steven Aftergood of Secrecy News points out “authorized disclosures” are a category of information that have never been a part of Executive Branch policy:

…This is an unprecedented legislative definition (or recognition) of a category of information that has no explicit basis in executive branch policy– namely, authorized disclosures of classified information to an uncleared member of the press or the public.  (“Can Disclosures of Classified Information Be Authorized?”, Secrecy News, December 19, 2012).  While disclosures of classified information to the press obviously occur, the official authorization for such disclosures, if it exists at all, has always remained tacit.  (There is an exception for life-threatening emergencies, in which classified information may be disclosed to first-responders and the like.)

The new provision notably applies to all “government officials,” including White House officials.  It may oblige the Administration either to abstain from authorized disclosures of classified intelligence to the press, or to revise its policies to more clearly permit such disclosures, or to somehow evade the new reporting requirement, perhaps by defining it away.  Thus, for example, Vice President Dick Cheney stated in 2004 that classified information could be used “to shape and inform what one says publicly” without violating prohibitions on disclosure of classified information…

Recall, the “leaks” that motivated the hysteria, which led to the anti-leaks proposals being considered and proposed by the Senate, involved national security information involving cyber warfare against Iran, Obama’s “kill list” and a CIA underwear bomb plot sting operation in Yemen. Some, if not most of the information, was probably classified or considered sensitive before an official divulged or confirmed details for stories that were published.

The stories on the Obama administration’s policy toward cyber warfare and targeted killings with drones were seen as making the administration look tough and aggressive on national security in en election year. Like stories that included previously classified information on the operation that ended in the execution of Osama bin Laden, the officials were essentially able to share what they considered to be positive or justifiable about the programs while at the same time concealing key aspects by not talking openly in press conferences or refusing to fill Freedom of Information Act (FOIA) requests.

As Glenn Greenwald has written, the Obama administration flagrantly abuses its “secrecy powers.” The administration “uses anonymous leaks to selectively boast about what it does and thus shape media narratives and public understanding of its conduct.” It then “simultaneously insists that the whole matter is classified — Top Secret — when it comes time to be subjected to any form of legal accountability or have its assertions publicly tested.” In short, it engages in the production of propaganda and that is, in effect, what the anti-leaks provision could make more permissible.

Additionally, the inclusion of the provision reflects the reality that this may have been more about Congress than national security from the start. Congress members like to go on television and wail about risks to national security caused by “leaks,” but if they are authorized by a presidential administration—a part of some information operation, those individuals can look pretty foolish. Often, Congress is not informed of what is going on with covert operations or acts the Executive Branch wishes to keep concealed. If a journalist or news organization has managed to uncover corruption and the Executive Branch wants to do damage control or perception management, Congress would like to be filled in ahead of time so as not to look wholly incompetent.

It was not a given that the anti-leaks proposals would be removed. Sen. Ron Wyden of Oregon placed a public hold on the intelligence authorization bill, which he intended to keep until meaningful debate or amendments to the provisions were allowed.  This was instrumental in leading to their removal. Had they been in the bill, they would have put potential whistleblowers at further risk of retaliation while also imposing increased restrictions on the free flow of information.

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This episode represents a conflict that will continue in the year ahead and merit detailed coverage (yet one can almost guarantee it will receive scant coverage by establishment media).

The political class abhors transparency because it means national security matters are subject to more scrutiny. The Obama administration and intelligence community gravitate toward relying on covert or secret operations because they can keep them from being constrained by the law or politics. Congress is mostly willing to allow this to occur under their nose (so long as a few senators are kept informed of the basis for justification for such operations). Judges are all too willing to show deference toward the Executive Branch and allow whatever conduct to go on and shield officials from accountability for abuses of the law or civil liberties violations.

The culture of secrecy means whistleblowers are increasingly targeted as criminals or, worse, traitors. Meanwhile, the Surveillance State is increasingly entrenched. The government wants to have full access to information on all people of the world, including Americans. It will use loopholes or bogus justifications like “protecting national security” to violate civil liberties. It will arbitrarily target people of color without probable cause. It will seize electronic devices, violate individuals’ privacy and subject them to legal harassment. It will put people on lists and deprive them of adequate due process to challenge inclusion on lists that restrict their ability to travel (e.g. “No Fly” list) or make them targets for capture or death (e.g. “Kill Lists”). The State will also go after dissidents or vulnerable people in the hopes of sweeping them up in entrapment schemes (which officials call “sting operations”).

The government engages in secret operations. It develops more and more secret law each day to justify the secret surveillance and secret acts of the national security state. Those who poke holes in the shell of secrecy that conceals activities are targeted to the fullest extent. And at the same time officials enjoy the freedom to decide in secret what information should and should not be shared so that the public can be propagandized through “leaks” into supporting or accepting acts which should be seen as a threat to freedom and open society.


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