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Anti-Leaks Measures to Reinforce Government Secrecy

Director of National Intelligence James Clapper (Flickr Photo by Medill DC)

(update below)

Measures aimed at preventing leaks among United States government employees in the US intelligence community have been announced by the Director of National Intelligence, James Clapper. The measures are being instituted as a result of recent news stories on cyberwarfare against Iran and a Central Intelligence Agency (CIA) underwear bomb plot sting operation in Yemen that included unauthorized disclosures on those operations.

The New York TimesCharlie Savage and the Los Angeles TimesKen Dilanian both have stories on the new measures. One measure will require intelligence employees to answer a question on whether they have leaked “restricted information” to journalists or the news media.

Savage notes employees take “a counterespionage polygraph examination” when they join an intelligence agency. It is “readministered every seven years.” This new measure will now allow “investigators” to “call in anyone for a polygraph test about a particular leak, apart from a criminal leak investigation by the Federal Bureau of Investigation.”

Another measure being instituted in response to the leaks hysteria on Capitol Hill, according to Savage, “adjusts what could happen if the Justice Department decides not to bring criminal charges over a leak, as often occurs either because the identity of the leaker could not be proved or because a public trial would require divulging more secrets.”  Agencies will now be able to issue letters of reprimand or fire suspects in “cases where a suspect is identified but not prosecuted.” And the national intelligence director can have the person in the newly established position of inspector general for the intelligence community conduct administrative investigations to “ensure that selected unauthorized disclosure cases” are not “closed prematurely.”

Clapper says the measures “will reinforce our professional values by sending a strong message that intelligence personnel always have, and always will, hold ourselves to the highest standard of professionalism.” In government speak, Clapper is saying employees who open their mouths and share details on government policies or programs with reporters or media without permission are unprofessional. A professional employee helps agencies and institutions, especially those in intelligence agencies, keep the press and public in the dark on what is happening so citizens do not know their government has launched a cyber war against other countries, has expanded a program of targeted killings of terror suspects abroad or has policies of detention, interrogation, rendition or mass surveillance that citizens might like to be informed about.

As Dilanian appropriately describes, the measures “make it more difficult for news media to divulge secret programs.” The measures promote the culture of secrecy in government. It’s intended to dry up sources so news reporters have next to no one to turn to who is willing to help them cover national security stories.

That is, however, the intent of leaks prosecutions and internal measures against the so-called “culture of unauthorized disclosures” in government. New York Times executive editor Jill Abramson recently said in a speech given to journalists at the Investigative Reporters and Editors annual conference:

The chilling effect of leaks prosecutions threatens to rob the public of vital information. Sources fear legal retribution for simply talking to reporters. Anyone examining the case of Thomas Drake, a whistleblower who was prosecuted, and what his family went through during his ultimately botched prosecution would think twice before ever talking to a reporter. Reporters fear being subpoenaed in these cases and possibly prosecuted themselves. Several reporters who have covered national security in Washington for decades tell me that the environment has never been tougher or information harder to dislodge. One Times reporter [says] the environment in Washington has never been more hostile to reporting.

It’s not enough that most employees have already been intimidated by the possibility of punishment if they talk about government policies or programs with the press or that the Director of National Intelligence is instituting these measures as response to the uproar around recent leaks. Congress members do not think this is enough. Rep. Mike Rogers, a Republican from Michigan who chairs the House Intelligence Committee, says it’s a “good first step” but “possible additional legislation” might be required. And, Adam Schiff, a Democrat from California who also serves on the committee with Rogers, says, “While the new steps announced by Clapper only apply to the intelligence community, we have to examine new methods of stopping others with access to sensitive and classified information from leaking it as well.”

Politicians are emboldened by the Obama administration’s prosecution of whistleblowers and the fact that the administration has a disposition against employees from the intelligence community that use their security clearance to blow the whistle on crimes or misconduct. In fact, each of the politicians that have been campaigning for legislation or measures to respond to leaks were some of the most vocal politicians who spoke out in opposition to WikiLeaks and the soldier alleged to have released information to WikiLeaks, Bradley Manning, when the organization began to disclose information in 2010.

Schiff declared as US State Embassy cables began to be released:

I deplore the potentially treasonous disclosure of classified and sensitive national security information, and urge the Department of Justice to bring any responsible party to justice. I also condemn the ongoing WikiLeaks release of a quarter million diplomatic documents, which will cause immeasurable harm to our diplomatic efforts, and worst of all, may expose our sources of information to great danger.

Rogers called for Manning to be executed for “aiding the enemy.”  Representative Peter King, a Republican from New York, called WikiLeaks’ releases of information “terrorism” and unsuccessfully pushed for the Treasury Department “to add WikiLeaks and its founder Jullian Assange to the Specially Designated National and Blocked Persons List (SDN List).” Sen. Dianne Feinstein, a Democrat from California, wrote in the Wall Street Journal of diplomatic cables, “When WikiLeaks founder Julian Assange released his latest document trove–more than 250,000 secret State Department cables–he intentionally harmed the U.S. government. The release of these documents damages our national interests and puts innocent lives at risk. He should be vigorously prosecuted for espionage.”  Senator John McCain, a Republican from Arizona, called for “the source of this harmful leak within the U.S. government” to “face the full penalties of the law,” and in July 2011, he renewed an effort to establish a select committee to address “insider threats” in government.

The rancor and hysteria certainly might lead one to believe members of Congress are preparing to bring up for a vote something that resembles an Official Secrets Act, a law that would explicitly criminalize the dissemination or publication of any unauthorized disclosures of information whether that information is classified, sensitive or not. Drake, one of the six individuals whom the Obama administration has gone after, has warned this is the “real and continuing threat,” as any such law would be a “direct assault on the First Amendment by the government.”

Senator Joseph Lieberman, an Independent from Connecticut, has called for an anti-leaks law like the Official Secrets Act. The anti-leaks legislation Lieberman supports would likely result in “massive preemptive and proactive censorship,” according to Drake. Such an assault would further chill freedom of the press by making government officials fear speaking with reporters even more than they do now.

Finally, the anti-leaks measures make it even easier for government propaganda to dominate the public’s understanding of national security programs. For example, here’s a story also from Dilanian of the Los Angeles Times that was published today. The headline suggests the public may not have anything to fear about the fact that a committee in the Executive Branch of government is acting as judge, jury and executioner and decided which terror suspects deserve to be killed.

Marcy Wheeler of notes, the people who are sources for this story are the same people who were presumably part of the decision to not go after any Obama administration officials for leaking about a CIA targeted killing program the government will neither confirm nor deny exists in court. These are the same people aggressively pursuing people for leaks and yet here they are talking about seeing secret or classified videos. And, what they say, spins the Obama administration’s “desired narrative that the bosses exercise adequate oversight over a controversial program.”

One senior staff member states, “I don’t know that we’ve ever seen anything that we thought was inappropriate.”  Schiff claims, “If the American people were sitting in the room, they would feel comfortable that it was being done in a responsible way.” Another senior staff member says, “I can watch video all day long — I’m not an imagery analyst…I can only look to see if the description reasonably concurs with what my untrained eyes are seeing.” So, it’s hard to tell if people being killed are only “terrorists” but nothing “inappropriate” has been seen and Americans would be comfortable if they saw these videos. In that case, they should air regularly as part of a new cable reality television show on Spike TV.

Hidden in the dust and clouds being kicked up by all this hysteria over leaks that provides cover to secrecy and government propaganda is the fact that, as National Security & Human Rights Director at the Government Accountability Project puts it, giving the American people unclassified information about government should not be a crime. What the politicians and heads of agencies and institutions in government are mobilizing against is investigative journalism. They don’t really want to stop people who say good things about government to news reporters. Only the people who embarrass government or invite scrutiny of government deserve to be hunted down.


Marcy Wheeler has a post these anti-leaks measures. Her conclusion is one I unintentionally omitted from my original post and it deserves attention. She writes that the measures will:

…free investigative methods from evidentiary rules (so for example, IGs might use wiretaps and other intrusive investigative techniques because they would never need to be disclosed or not in court). The secrecy of such investigations would also make the exposure of selective prosecution impossible. And given the impunity with which the government can give or withdraw clearances, it would mean those unfairly targeted would have no recourse…

She mentions the IG has already been proven to be willing to engage in government cover-ups and the measures will only make whistleblowing riskier.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."