Ret. Army Col. Ken Allard testifying before House Judiciary subcommittee

For over a month now, members of Congress have been engaged in a bipartisan offensive against “leaks.” The offensive was launched after details on Obama’s “kill list,” cyber warfare against Iran, and the CIA underwear bomb plot sting operation in Yemen became public information. The offensive yielded the appointment by Attorney General Eric Holder of two US attorneys to investigate two of the “leaks” (no attorney was appointed to investigate how details on a covert drone program were released) yet this has not satisfied politicians. Congress people from both the Democratic and Republican Party in the US continue to introduce and speak out in favor of proposals to clamp down on the free flow of information.

On July 11, the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, chaired by Rep. Jim Sensenbrenner, examined the “leaks” and discussed the revision of laws to make it possible to prosecute journalists . Sensenbrenner suggested in the “next session” of Congress the committee should “revamp the Espionage Act” to address “over-classification of government information and create a standard of liability for those who leak classified information to someone without a security clearance.”

Rep. Trey Gowdy called for criminal prosecutions of reporters and said, “Why not send a subpoena to the reporter?” Gowdy said. “Put them in front of a grand jury. You either answer a question or you’re going to be held in contempt and go to jail, which is what I thought all reporters aspire to anyway.”

One of the witnesses called to testify before the subcommittee was retired Army Col. Kenneth Allard, who was one of the military analysts implicated in the Pentagon pundit scandal in 2008. This man, who admitted he engaged in “psyops on steroids” to help the Pentagon sell the Iraq war, professed to have some moral authority to discuss “media ethics” and denounce the fact that, in his opinion, “media objectivity has been replaced by media advocacy, even at the expense of national security.”

Allard shared his scorn for New York Times reporter David Sanger and his book Confront and Conceal, which the New York Journal of Books assigned him to review.

…[M]y evaluation as a reviewer is that Mr. Sanger’s book conceals nothing and represents a new low in the profligate revelation and sale-for profit of the most sensitive American military and diplomatic secrets. Sadly this vice is also habit forming, since we have now become accustomed to the anarchy of Julian Assange and WikiLeaks; the repetitive, in-your-face defiance of every defense classification by Bob Woodward – both in his Washington Post columns and his books. But Mr. Sanger’s book, among other things, reveals that the Obama White House orchestrated a deliberate, integrated campaign of industrial espionage against Iranian nuclear facilities, including the use of the Stuxnet and Flame viruses… [emphasis added]

Because Sanger isn’t pimping military equipment on broadcast television, like Allard did ahead of the invasion of Iraq (“This is the Apache attack helicopter. It was one of the stars of Desert Storm”), he was accused of “systematically penetrating the Obama White House as effectively as any foreign agent.” This McCarthyist-like charge was accompanied by the oft-heard hysterical statement that revelations of this “industrial sabotage against Iran, which is “clearly an act of war,” opened the US up to retaliation or terrorist attacks. He didn’t suggest the act of cyber warfare would open the US to possible retaliation (why it would be in the public’s interest to know the US government was engaged in cyber warfare). Rather, Sanger’s journalism might lead to violence against the United States.

He continued:

Did he violate the Espionage Act? If he did, those actions potentially place him, his superiors at the New York Times and his publishers at Crown Books in jeopardy of forfeiting their liberty and property. Far from advancing our rights as citizens – as a free press should – Mr. Sanger deliberately placed his country at significant risk for his own profit. He might just as well have knocked over a local bank and then claimed a journalistic interest in money supply – his own most of all. [emphasis added]

Such statements being made by a paid military analyst who repeated Pentagon propaganda on the airwaves of NBC television ahead of the Iraq war is exceedingly rich. The richness is amplified by the fact that he used his witness statement to highlight the Pentagon Inspector General’s whitewash investigation of the Pentagon’s military analyst program and claim he did not engage in any foul conduct.

In addition to the recent calls for prosecutions, House Judiciary Committee members are reportedly considering launching their own probe into the “leaks” because Holder refuses to appoint a special prosecutor. They plan to use their subpoena powers to call witnesses. Senator Richard Burr introduced a bill that would revoke the security clearance of any individual who discloses information on US covert programs. Senator Dianne Feinstein renewed her call for Julian Assange and others associated with WikiLeaks to be prosecuted.


Rep. Jim Sensenbrenner at the House subcommittee hearing

Sensenbrenner justified this offensive during the July 11 hearing. He contended “whistleblower laws” enable government employees to hold the government accountable “without going to the media.” They permit “citizens to go directly to the federal government about instances of government wrongdoing.” But, the case of former National Reconnaissance Office (NRO) employee calls this assertion into serious question.

Detailed in a recent McClatchy investigation, the NRO has been putting polygraph examiners under pressure to obtain personal information on employees and those who apply for jobs. Phillips refused to abuse polygraph tests and pursue information unrelated to counterintelligence issues. He filed a complaint with the Pentagon Inspector General (IG) that included a chart showing his job performance in comparison to 14 other polygraph examiners. Forty percent of all admissions during polygraph tests had revealed “lifestyle” or personal information.

Phillips explains polygraph examiners are only to conduct counterintelligence-scope polygraph tests when examining employees or job applicants. They are expressly prohibited from actively pursuing what is called lifestyle information outside of 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.” They are only to pursue personal information if admissions are made “spontaneously,” however, the statistics show the collection of personal information is not spontaneous.

The routine violation of procedure is incentivized with bonuses and positive performance reviews. Also, McClatchy reported, “Those who confess to serious offenses aren’t always criminally prosecuted even when child molestation is involved.”

Phillips decided he did not want to participate in a program that strayed from only asking “examinees” about espionage, terrorism, sabotage or sharing classified information without proper authorization. According to McClatchy, he was searched for policies and found the NRO “had agreed to follow Pentagon polygraph rules.” He argued to top agency officials that tests had to focus on matters of national security. Officials contended they “relied on the same legal authorities as the CIA” and “lifestyle tests” were permissible. Phillips did not quit. He contacted “at least 10 officials within the agency and the Pentagon,” including an Air Force Manager. He expressed criticism openly to “supervisors and colleagues.”

Then came the retaliation. His performance reviews included the following criticism: “Instead of spending time trying to improve his information collection skills, Mr. Phillips has spent an inordinate amount of time documenting, making complaints and arguing why he believes our program is collecting information in violation of (Pentagon) regulations.” His polygraph sessions were observed by NRO officials, who Phillips believed were trying to catch him in a mistake. He was called “insubordinate” and “lazy.” Finally, when the agency concluded a “legal review” of his “assertions” in April and concluded there was “no merit in his complaints,” he knew he could not remain an employee and resigned at the end of May.

Sibel Edmonds, a Federal Bureau of Investigation (FBI) whistleblower, told Firedoglake in reaction to Phillips’ case, “For many years, with its reliability and accuracy widely disputed, the polygraph has been used by our government agencies for nefarious purposes- as a blackmail and witch hunt tool. We should support and be thankful for whistleblowers like Mr. Philips for opening our eyes and functioning as watchdogs on our government agencies.” She noted in her case the FBI “took the liberty of administering a polygraph and questioning me on any contact and any disclosures I might have made to the United States Congress.” And noted the timing of Phillips’ disclosure couldn’t have been more important, considering that only last month Director of National Intelligence James Clapper announced the government was expanding its use of the polygraph to expose federal employees who leak classified information to the media.”

“Under this new rule the Director of National Intelligence (DNI) can direct even ‘suspected’ leakers to submit to a polygraph test to be questioned about ‘possible’ unauthorized disclosures,” explained Edmonds. “In a nation truly governed by its Constitution, Mark Philips would have been applauded for exposing an extremely dangerous and to a large degree illegal tactic employed by its government to intimidate, silence, and cover up. Obviously we are not inhabitants of such a nation.”The backdrop to this, of course, is the unprecedented number of prosecutions of whistleblowers or individuals for the release of classified information by the Obama administration. Six individuals have been indicted under the Espionage Act. They are being pursued because the Justice Department has the capability to pursue these prosecutions. One senior Justice Department official even told the Washingtonian, “We’re out for scalps,” and reporters who talk to sources about classified information are “putting themselves at risk of prosecution.”

Congress members feel empowered by the administration’s zero tolerance for the free flow of information, particularly information that exposes the true nature of programs the federal government wishes to shield from public scrutiny. The result is good government employees, who believe in the institutions of which they are employed, are suppressed when they try to address abuse and corruption. Press freedom is also chilled as reporters face the prospect of being called into court or before a congressional committee intent on submitting them with HUAC-esque lines of questioning.

Kevin Gosztola

Kevin Gosztola

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