Senate Effort to Renew NSA Spying Powers Contains Provision to Stop Next Edward Snowden

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Senator Dianne Feinstein has proposed legislation to protect the National Security Agency from losing dragnet surveillance powers when Patriot Act provisions expire. But her bill would not only save spying powers but also codify into law a provision that would expressly enable the government to criminalize any national security whistleblower who may choose to follow the footsteps of NSA whistleblower Edward Snowden.

As first reported by journalist Marcy Wheeler, the provision in Feinstein’s bill [PDF] is modeled after the Espionage Act, which President Barack Obama’s administration has aggressively relied upon to prosecute a record number of whistleblowers. (Snowden was indicted under the Espionage Act.)

The provision would prohibit “unauthorized disclosures” by an “officer, employee, contractor, or consultant of the United States” or any “recipient of an order” issued under the Foreign Intelligence Surveillance Act (FISA), who “knowingly comes into possession of classified information or documents or materials containing classified information” of the US.

A person could be criminalized if they disclosed any information connected to an application to the FISA Court, an order approved by the court or information acquired under a directive issued by the court.

Knowingly communicating, transmitting and making available information to an “unauthorized person,” such as a journalist, would be criminal. Someone who “knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location,” as Snowden did before providing documents to journalists, would be violating the law as well.

Making information available to a reporter could potentially result in someone going to jail for ten years. Retaining documents at an unauthorized location could potentially result in a one-year prison sentence.

A similar provision was included in a bill introduced by Senator Richard Burr over the weekend. The bill was also drafted to protect dragnet surveillance powers.

Both Burr, a Republican who chairs the Senate intelligence committee, and Feinstein, a Democrat and former chair of the Senate intelligence committee, are powerful senators who have traditionally supported anti-leaks measures, which Senator Ron Wyden blocked in 2012.

Feinstein accused Snowden in June 2013 of “violating” his oath to defend the Constitution. She unequivocally stated, “He violated the law. It’s treason.” When Burr found about what Snowden revealed on mass surveillance, he was not concerned about the programs but rather about how a contractor like Snowden had access to so much material.

Jesselyn Radack, an attorney who has represented a number of whistleblowers such as Thomas Drake, Bill Binney, and currently represents Snowden, reacted, “Feinstein is the latest member of Congress to offer a non-compromise ‘compromise’ to replace the already-compromised USA Freedom Act. Her bill would essentially retain Richard Burr’s odious Section 215 mini-Espionage Act, imposing 10-year penalties on people like my NSA whistleblower clients Edward Snowden, William Binney and Thomas Drake, who told us what the intelligence community was really doing with the call records program.”

“The most disturbing aspect is the prospect of Congress codifying the Justice Department’s draconian use of the century-old Espionage Act into law when there’s a lot of validity that the Department has unconstitutionally applied the Espionage Act to whistleblowers.”

The provision contains no clear and present danger standard, which means it would not matter if a person knew the disclosure of information would result in no harm. The government would be under no obligation to present any evidence that a release of information caused grave damage or harmed anyone during prosecution. This would likely violate the First Amendment. (more…)

In First Interview, CIA Whistleblower Jeffrey Sterling Says Congressional Staffer Urged Him to Flee

In his first interview since he was charged with leaking details of a botched CIA operation to New York Times reporter James Risen, CIA whistleblower Jeffrey Sterling says that he had a meeting with a staffer for Congressman William Lacy Clay and was urged to flee the United States.

Sterling, who worked as an African American case officer, was found guilty by a jury of committing multiple Espionage Act offenses when he exposed information about “Operation Merlin,” which involved passing flawed nuclear blueprints to Iran in order to get the country to work on building a nuclear weapon that would never function.

He left the CIA in 2002 and brought a claim against the CIA alleging racial discrimination. He appealed his case all the way to the Supreme Court in 2005. However, the government successfully had the case thrown out by invoking the “state secrets” privilege. The government has maintained that he leaked details about Operation Merlin in revenge for his discrimination lawsuit being dismissed.

Sterling was sentenced to three and a half years in prison on May 11. It is the longest sentence issued by a federal court during President Barack Obama’s administration.

Expose Facts, an advocacy organization that has mobilized support for Sterling, conducted an interview with Sterling, which aired on “Democracy Now!”.

Sterling recalls receiving information that there was a “possible leak of information” and “everyone” was “pointing a finger” at him. He needed to find some help.

He went to a local congressman, Clay, and one of his staff members looked at him and told him he should “just leave the country.” That hurt Sterling because the staff member was a black man working for a black representative and they were telling him not to stand up for his civil rights.

“You don’t run away. You stand up for yourself,” Sterling declares.

Sterling and his wife, Holly, describe what happened after Risen published details about “Operation Merlin” in a chapter of his book, State of War, in 2006. FBI agents came to their door.

“They flew me out to Virginia, and I went to FBI headquarters and was interrogated for seven hours,” Holly recalls. “And then, the next day they surrounded the home actually. They just went methodically through the home. They went to my family. They went to my employer. It’s incredibly intrusive and incredibly disturbing. You’re whole sense of security in your home and privacy was violated.”

Jeffrey mentions that he thought he would be arrested. He was not, and it was not until more than four years later that he was charged on January 6, 2011. At that point, he was arrested.

The trial started very soon after and was delayed as the government sought testimony from Risen. Sterling expresses how it bothered him that he was the defendant being prosecuted and the press transformed the case into the “Risen case,” which meant there was little discussion about how the government was going after him.

Sterling says that he is still “in shock” about the fact that he was found guilty by a jury. He adds that the government shut him up with his discrimination case, and “they’ve closed the door with the criminal case.” (more…)

Former CIA Officer Jeffrey Sterling Sentenced to Jail for Leaking to Journalist

Jeffrey Sterling (Photo by Institute for Public Accuracy)

Former CIA officer Jeffrey Sterling was sentenced to three and a half years in prison for leaking information to a journalist. It was the longest sentence issued by a federal court during President Barack Obama’s administration.

During a trial in January, the government convinced a jury, with largely circumstantial evidence, that Sterling leaked information about a top secret CIA operation in Iran called “Operation Merlin” to New York Times reporter James Risen, who published details on the operation in a chapter of his book, State of War. “Operation Merlin” involved the passage of flawed nuclear blueprints to Iran in order to get them to work on building a nuclear weapon that would never function.

He was convicted of violations of the Espionage Act and other offenses. The government had argued a sentence ranging from 19.5 to 24 years in prison would be reasonable.

Judge Leonie Brinkema, according to Times reporter Matt Apuzzo, said Sterling had “jeopardized the safety of a CIA informant.” And, “Of all the types of secrets kept by American intelligence officers, she said, ‘This is the most critical secret.’”

“If you knowingly reveal these secrets, there’s going to be a price to be paid,” Brinkema added. Sterling had to be punished in order to send a message to other officials, who might consider revealing these kinds of secrets.

Still, Brinkema did not issue a sentence that advocates for Sterling had feared might be issued against him.

“This is the least worst outcome,” Jesselyn Radack, director of the Government Accountability Project’s National Security and Human Rights division, declared. “I expected it to be worse given the huge amount of time that the government was requesting. That said, in my opinion, any jail time is excessive in light of the sweetheart plea deal that [David] Petraeus received for leaking classified information to his mistress.”

Sterling’s defense had argued [PDF] that the court could not “turn a blind eye to the positions the government has taken in similar cases.”

The government agreed to sentence Petraeus to two years of probation and a fine of $40,000 (which the judge hearing the case increased to $100,000). It was lenient considering the fact that Petraeus leaked “Black Books” containing the names of covert officers, war strategy notes, discussions from high level National Security Council meetings and notes from his meetings with President Barack Obama. He also lied to the FBI but was not charged with perjury or obstruction of justice. And the government allowed him to plead guilty to a misdemeanor violation instead of a violation of the Espionage Act.

“Sterling should not receive a different form of justice than General Petraeus,” Edward MacMahon Jr. suggested. (more…)