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Top US Intelligence Lawyer’s Testimony Shows Obama Encouraged Leak Prosecutions

Recently released testimony from the former top lawyer for the Office of the Director of National Intelligence undermines claims by President Barack Obama’s administration that it has had no desire for leak prosecutions. It also renews concerns about the insider threat program implemented and expanded since U.S. military whistleblower Chelsea Manning disclosed documents to WikiLeaks. And it proves the insider threat program is a roundabout way to identify and go after whistleblowers.

The testimony was delivered by ODNI General Counsel Robert S. Litt on February 9, 2012, during a closed session held by the Senate Select Committee on Intelligence. It was obtained by Steven Aftergood of Secrecy News through a Freedom of Information Act request.

“This administration has been historically active in pursuing prosecution of leakers, and the intelligence community fully supports this effort,” Litt declares.

A few months later, “aides” from the Obama administration told Charlie Savage and Scott Shane of the New York Times that Obama “never ordered investigations.” Unnamed current and former officials asserted the record number of prosecutions was “unplanned” and “resulted from several leftover investigations” from President George W. Bush’s administration. These unnamed officials also attributed the increase to a “proliferation of email and computer audit trails that increasingly can pinpoint reporters’ sources, bipartisan support in Congress for a tougher approach, and a push by the director of national intelligence in 2009 that sharpened the system for tracking disclosures.”

Yet, according to Litt, the push by the “intelligence community” was in support of the administration’s active pursuit of individuals responsible for unauthorized disclosures.

At the time, the cases of Manning, Justice Department lawyer Thomas Tamm, CIA whistleblower John Kiriakou, CIA whistleblower Jeffrey Sterling, FBI translator Shamai Leibowitz, and State Department employee Stephen Kim were all unfolding. The case against NSA whistleblower Thomas Drake had completely collapsed. The pursuit of these individuals represent the zeal of the Obama administration in its war on whistleblowers or government employees who communicated with journalists. (NSA whistleblower Edward Snowden had not yet made his disclosures.)

Litt’s testimony is additionally important because it includes details about the genesis of the Insider Threat program.

“While difficult, the ability to detect behaviors and activities associated with unauthorized disclosures is vital,” Litt states. “In this post-WikiLeaks era, where the vulnerability of our systems and the information they carry has become apparent, it is incumbent on the [intelligence community] to protect our secrets while still ensuring that the right information is delivered to the right people at the right time.”

Litt describes how “each individual member” of the “intelligence community” had “audit and monitoring capabilities for their systems and networks.” Such “robust programs” are designed to monitor and track employees’ online activities. The “intelligence community” also studied, developed, and tested automated systems to identify “classified information published on the internet.”

ODNI censored sections of the testimony where the technological capabilities of the systems are detailed. The effect is blacked-out portions that make what Litt outlines even more ominous.

Jesselyn Radack is a Justice Department whistleblower, an attorney for whistleblowers, and the director of ExposeFacts.org’s whistleblower and source protection program. She told Shadowproof the description of the automated insider threat detection program is “creepy” because it completely removes the “human element.”

According to Radack, typically a whistleblower can guess “who is doing the retaliation and who is out to get them and why.” Automation removes that ability to hold a particular individual responsible. Instead, it is a computerized system that singles an employee out based on their online activity or patterns of behavior.

What was censored from the documents, Radack said, is probably information about the capabilities NSA uses to identify individuals responsible for leaks.

“I know from the cases I’ve worked on that agencies have used internet history against whistleblowers,” Radack said. “In other words, what kinds of websites were they going on, like were they researching whistleblower retaliation. What do I do if my boss is committing a crime?”

This type of monitoring completely “compromises any kind of whistleblower communications.”

Part of the testimony addresses a study, which concluded it would be “beneficial” and “feasible” to “implement a centralized and automated capability to identify potential unauthorized disclosures of classified information published electronically in the public domain, specifically the internet.”

“That is ‘Minority Report’ kind of stuff,” Radack said. The “intelligence community” is trying to “identify future crimes.”

It is known, based on information Manning obtained through a FOIA request, that the Insider threat Task Force has developed “psychological profiles” to identify potential leakers or whistleblowers.

“The program alleges that I am ‘disgruntled’ based on my perceived sexual orientation and gender identity, questioning my ‘self-image as a man’ while acknowledging that ‘he [sic] wanted to be an openly accepted female,'” Manning wrote. “It describes me as ‘an advocate for homosexuals openly serving’ in the military, and my concern and advocacy of queer and trans rights as being expressed ‘obsessively.'”

In other words, a file Manning obtained shows people who are struggling with issues of gender identity or sexual orientation may be treated as individuals, who need to be monitored through total surveillance of their activities, even though there is no correlation between the two. A gay, lesbian, bisexual, or transgender person is not more prone to release classified information to reveal fraud, waste, or abuse.

In March, James Bamford reported on an NSA analyst who was targeted by the FBI because she met with NSA whistleblower Thomas Drake for advice on how to handle “poor treatment by the agency while on an overseas posting; she believed that she had been unduly reassigned and had filed an Equal Employment Opportunity (EEO).” The agency suspended her security clearances and forced her to resign.

This is but one example of how the insider threat program can be used to target good government employees, who have absolutely no intention of leaking.

Litt’s testimony represents a summary of precursors, which have led to the development of a system of total surveillance for government employees with security clearances.

As Director of National Intelligence James Clapper previously described, the system of “continuous evaluation” is designed to monitor “electronic behavior on the job as well as off the job.” Clapper expected the “Insider Threat” program would have six or seven data streams by September 2016, which would be relied upon to detect potential threats.

An Office of Acquisitions posting on the government website for contractors indicated the systems would create “staff profiles.” In other words, data would be used to maintain dossiers on suspicious employees who have security clearances. Their behaviors could trigger special monitoring, even if they have not taken information with the intent to disclose.

The Pentagon has conducted a pilot program against 100,000 military, civilian, and contractor personnel, where their electronic activities and communications were put under “continuous evaluation”—the government’s euphemism for total surveillance.

As Radack suggested, this should “send chills down the spines of any public employee because your communications off the job are your private communications. I think the government shouldn’t have access to those.”

Consider the fact that security clearances are supposed to be issued to persons because they are trustworthy. However, as Radack argued, intelligence agencies operate under the logic that “because they have a security clearance they therefore forfeit their right to have private electronic communications.” They believe it is acceptable to force employees to give up private communications on their own time, on their own computers or electronic devices, and in their own homes.

According to Radack, this is how the agencies deal with the out of control problem of too many security clearances. Somewhere around 5 million people have security clearances. A few people have blown the whistle and had security clearances. So, the agencies developed a system that quite clearly violates privacy and free speech rights, and impedes the communications of whistleblowers. This may include whistleblower communication with politicians like Senator Ron Wyden and Senator Chuck Grassley, who are two of the small number of senators attempting to provide meaningful oversight of the insider threat program.

“I would submit this is not a security clearance problem. This is a problem with how they deal with employees who are bringing forth valid, legitimate workplace problems or agency issues,” Radack declared.

When Litt talks about tracking already published classified information, which the intelligence agencies can no longer control, he is talking about surveillance of internet activity, which undoubtedly includes logging data about journalists who have obtained classified information. For this to work, they have to track what journalists publish and use that information to go back to an “audit trail” to see who has accessed that information and then possibly target anyone whose name appears in the audit data.

Finally, Litt speaks about “administrative penalties” as a more efficient way to deter and punish leakers. Radack pointed out “there is no meaningful review of administrative remedies against whistleblowers.”

“If there’s an administrative penalty, you are stuck within the agency if you want to appeal that or have that reviewed, you don’t have any kind of access to federal courts or anything like that.” Thus, intelligence agencies take advantage of a lack of whistleblower protections to maximize the fear instilled in other employees. They send a message to employees that if they reveal anything embarrassing their supervisors will make an example out of them.

US Navy SEAL Charles Keating IV. (Photo adapted from US Navy).
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Kevin Gosztola

Kevin Gosztola

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