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January 27, 2013

FBI Goes Fishing for Evidence of Government Employee Conversations with Journalists

Posted in: FBI,Press Freedom,Secrecy,Whistleblowers

(update below)

FBI investigators are extensively analyzing the email accounts and phone records of current and former government officials “in a search for links to journalists,” according to a recent story published by the Washington Post. The investigation is searching for sources who provided information on cyber warfare against Iran to the New York Times for a story written by David Sanger and published on June 1 of last year. Much more information on the secret virus, Stuxnet, used to destabilize Iran’s critical infrastructure was eventually published in Sanger’s book, Confront and Conceal.

The Washington Post story indicates some details on the nature of the investigation from an unnamed and anonymous source. “Prosecutors are pursuing ‘everybody’—at pretty high levels,” the source familiar with the investigation said. It involves multiple agencies of government.

…The FBI and prosecutors have interviewed several current and former senior government officials in connection with the disclosures, sometimes confronting them with evidence of contact with journalists, according to people familiar with the probe…

The story goes on to describe how the FBI is likely using “sophisticated software to identify names, key words and phrases embedded in emails and other communications, including text messages, which could lead them to suspects.” This most likely involves examining “officials’ phone records— who called whom, when, for how long. Once they have evidence of contact between officials and a particular journalist, investigators can seek a warrant to examine private email accounts and phone records, including text messages, former prosecutors said.”

It also notes that the FBI and prosecutors are able to “examine government email accounts and government-issued devices, including cellphones, without a warrant. They can also look at private email accounts without a warrant if those accounts were accessed on government computers.”

All of which suggests that the FBI is likely engaged in a fishing expedition where they are examining any and all officials’ computers and electronic devices regardless of whether they have probable cause to conduct a search. The Stuxnet leak investigation, therefore, can be used as a pretext to make certain other employees have not leaked information. It can be used to make a list or dossier on all those in government agencies who have had communications with journalists in the past months or year so the FBI knows who to target the next time a leak occurs.

The investigation into who provided information on a covert CIA underwear bomb plot sting operation in Yemen is also still ongoing. An anonymous person familiar with this inquiry said about this investigation, “People are feeling less open to talking to reporters given this uptick. There is a definite chilling effect in government due to these investigations.”

The FBI investigation is nothing less than an operation to clamp down on the free flow of information, frighten sources and undermine freedom of the press.

Both Glenn Greenwald and Trevor Timm of the Press Freedom Foundation have posts up putting this fishing expedition into a larger context. Greenwald wrote, “Given how subservient the federal judiciary is to government secrecy claims, it is not hyperbole to describe unauthorized leaks as the only real avenue remaining for learning about what the US government does – particularly for discovering the bad acts it commits. That is why the Obama administration is waging an unprecedented war against it – a war that continually escalates – and it is why it is so threatening.” Timm commented, “The chill on the press is not hypothetical or imaginary. The Times reported on its front page in August, just after the investigation started, that the FBI was ‘casting a distinct chill over press coverage of national security issues as agencies decline routine interview requests and refuse to provide background briefings.’”

One key question is, why are we just now hearing from a source on this investigation? And who decided to share details with the Post?

It is more than six months since the investigations into the two leaks launched. The Post noted in their story on the FBI fishing expedition, “Since the probes were announced, there has been little publicity about the ongoing inquiries.” However, it is not likely there has not been interest among media organizations in the United States.

There was bipartisan hysteria in Congress following three significant news stories, which contained leaks on the Obama administration’s “kill list,” cyber warfare against Iran and the covert CIA underwear bomb plot sting operation involving a double agent. And newspapers reacted last year:

“Lawmakers understandably are concerned about secret government information being published by the media, but the use of that information by journalists serves the public interest.” They urged Congress “not to criminalize the reporting of information that may have come into the possession of the media because a government official was indiscreet.” And added media should be able to share information from government officials without fear of prosecution. -Los Angeles Times, June 8

Obama’s “categorical leaks denial fails the scrutiny test…If reporters must be subpoenaed, prosecutors should recognize the very high bar and should have exhausted all other avenues. They also should recall that the government hasn’t always been honest about that. In the Valerie Plame case, special counsel Patrick Fitzgerald jailed a New York Times reporter, Judith Miller — to no purpose, as the evidence later revealed.” —Dallas Morning News, June 12

“Obama punishes leakers only when embarrassed….[The] Obama administration is the most forceful, vigilant and merciless in cracking down on whistle-blowers and leakers in nearly a century. The liberal law professor in the White House is no softie when it comes to punishing voices who undercut his pronouncements and policies.” —San Francisco Chronicle, June 12

Whether undertaken by Justice’s prosecutors or an independent counsel, the current investigation should, and almost certainly will, lead to a similar dead end — which is one reason we believe it should not have been begun at all. As in previous cases, including the six mostly unsuccessful leak prosecutions so far launched by the Obama administration, it’s doubtful that any law was broken. Disclosing classified information is not by itself a crime, and courts have found that under the flawed 1917 espionage statute used in such cases, prosecutors must show that a leak was intended to harm U.S. security — an appropriately high bar. —Washington Post, June 14 would think the Post would have been regularly returning to this story and would have consistently tried to get sources knowledgeable of the investigation to share details on the status of the investigation. So was this the first time in the past months they had a source to talk about the investigations?

To recap, anti-leaks proposals proposed by Sen. Dianne Feinstein ultimately failed because Senator Ron Wyden of Oregon placed a hold on them until he could get an agreement that would allow a Senate floor debate on the measures. However, one should not forget that they were measures that would have greatly pleased the national security state as they would have reinforced the culture of secrecy by placing restrictions on the already-limited freedom government employees have to speak publicly about what they do and witness in their job.

This did not stop the Congress and Obama administration from including one provision of the intelligence authorization bill that required 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.” As Steven Aftergood of Secrecy News reacted, “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.”

Again, the investigations have been known to be ongoing for months, which means the snooping on communications between government employees and journalists likely began well before last year was over. This source shows why the investigations were having a chilling effect by suggesting how expansive and intrusive they have been.

Whomever the source for this scant amount of details on the FBI investigation happens to be, it is most likely someone for the investigation and this is a self-serving disclosure to the Post. It certainly cannot be intended to derail. If anything, it sends another message to press and government employees to be careful in their communications and know government will come after them if they try to engage in any acts that might reveal the true nature of what the government is secretly doing in the name of so-called national security.


On Friday, former CIA officer John Kiriakou was sentenced to 30 months in jail for committing the crime of revealing a covert officer’s name to a reporter. A post on the sentencing that appeared at Firedoglake included an interview with Kiriakou where he talked about how he had become a government target. That post has garnered some attention and I have been doing some radio shows to talk about Kiriakou’s case.

I did a comprehensive interview for WZBC’s “Sounds of Dissent” program hosted by John Grebe. In the interview, we got into how it is common for current and former CIA officers to talk to reporters, how Kiriakou’s position on torture evolved and  how the Justice Department chose to prosecute him and engaged in the politics of personal destruction.

The interview begins about 15:00 minutes into this 1-hour clip and can be listened to here.


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