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Notes On The Trump Justice Department’s Second Major Leak Prosecution

Local news media in Minnesota reported that FBI special agent Terry Albury was charged with violating the Espionage Act when he allegedly disclosed documents to the Intercept. He apparently pled guilty and took responsibility for his alleged actions.

Albury is the second person who made disclosures to the press to face prosecution under the World War I-era law. Reality Winner, an NSA contractor, was charged in June 2017 and awaits a trial, which is scheduled for October.

Remarkably, there is still no announcement from the Justice Department—or even the U.S. Attorney’s Office in the District of Minnesota—celebrating how law enforcement was able to identify another “leaker.”

In the case of Reality Winner, the Justice Department put out a press release two days after her arrest under the headline, “Federal Government Contractor in Georgia Charged With Removing and Mailing Classified Materials to a News Outlet.”

The press release included a statement championing the cause of rooting out “leakers”:

“Exceptional law enforcement efforts allowed us quickly to identify and arrest the defendant,” said Deputy Attorney General Rod J. Rosenstein. “Releasing classified material without authorization threatens our nation’s security and undermines public faith in government. People who are trusted with classified information and pledge to protect it must be held accountable when they violate that obligation.”

But even with widespread news reports, the Justice Department and FBI in Minneapolis chose not to comment. That is unusual, especially given the views of Attorney General Jeff Sessions.

“This nation must end this culture of leaks. We will investigate and seek to bring criminals to justice. We will not allow rogue anonymous sources with security clearances to sell out our country. These cases, to investigate and prosecute, are never easy. But cases will be made, and leakers will be held accountable,” Sessions proclaimed in August.

The search warrant application is dated August 28, 2017. That is about seven months ago.

The application was not uploaded into the docket for Albury’s case until January 2, and it was sealed by order of the court. This happened about four months after Albury’s home, office, and vehicle were raided.

To contrast, the FBI’s search warrant application was dated June 3, and it was filed with a district court on the same day. The application was not sealed.

What transpired between August and January? And what has unfolded between Albury and authorities between January and March, before the media reported the case to the public?

It is possible that Albury has cooperated with the FBI and offered them something in return for a plea deal. That does not necessarily mean he agreed to inform on fellow colleagues.

Notably, Albury is charged not only with an Espionage Act violation but also with “unauthorized retention and removal” of classified information, which is a misdemeanor.

Most of the time this would not be a charge available to a person accused of a leak. Only individuals in positions of power are charged with misdemeanors instead of felonies for this alleged crime, like former CIA director David Petraeus.

Albury’s attorneys, JaneAnne Murray and Joshua Dratel, put out a statement, “Terry Albury served the U.S. with distinction both here at home and abroad in Iraq. He accepts full responsibility for the conduct set forth in the information [a document reflecting a potential plea].”

“We would like to add that as the only African American FBI field agent in Minnesota, Mr. Albury’s actions were driven by a conscientious commitment to long-term national security and addressing the well-documented systemic biases within the FBI,” the statement added.

First of all, this suggests Albury had clear whistleblower motives when he chose to release documents to The Intercept. He was a black FBI special agent. The FBI’s own statistics indicate, as of 2017, 78 percent of intelligence analysts and 83 percent of special agents were white.

Former FBI director James Comey openly declared in July 2016, “We have a crisis in the FBI, and it is this: Slowly but steadily over the last decade or more, the percentage of special agents in the FBI who are white has been growing.”

Dratel is a high-profile defense attorney. He previously represented David Hicks, an Australian man who was tortured and detained at Guantanamo Bay, Basaaly Moalin, a Somali taxi driver who was accused of giving $8,500 to al Shabaab, Wadih el-Hage, who was accused of helping to orchestrate the U.S. Embassy bombings in Kenya and Tanzania, and Ross Ulbricht, who was accused of being the leader of the online drug black market known as Silk Road.

Murray has defended executives at corporations like Tyco, A.I.G., and Lehman Brothers. She has represented individuals who faced terrorism charges. She was part of the Steering Committee of Clemency Project 2014, which trained volunteer lawyers for President Barack Obama’s “clemency program for nonviolent federal inmates.”

She also is part of the Robina Institute of Criminal Law and Criminal Jutice at the University of Minnesota. According to her profile page, she “specializes in criminal law and government investigations, and teaches criminal procedure. Her research interests include plea bargaining, prosecutorial discretion, and sentencing.”

Both of these attorneys are heavyweights. They are definitely lawyers a defendant would want to have if they were trying to avoid prison or win a lenient sentence.

The documents allegedly disclosed to The Intercept involved the FBI’s recruitment of informants at the United States border. Particularly, they involve what FBI agents are permitted to do in areas of transit, like airports, which makes sense because Albury was an airport liaison stationed at the Minneapolis-St. Paul International Airport.

Albury was apparently hired in August 2001 as a full-time FBI employee and conducted surveillance operations. Which is why it is a bit peculiar that he allegedly used a digital camera to take shots of a computer screen and sent those images to the Intercept.

“On June 16, 2017,” according to the affidavit, “Albury was observed holding a silver digital camera at approximately 7:44 am CST and inserting what appears to be a digital memory stick into said camera. At approximately 7:56 am CST, Albury appeared to start taking photographs of his computer screen of his FBI information system classified at the SECRET level.”

Multiple times surveillance captured Albury allegedly engaged in this act, and he allegedly was viewing “various classified and UNCLASSIFIED documents on his computer screen while he was taking the referenced photographs.”

The files the Intercept posted to their website were uploaded to Document Cloud. The affidavit claims they had “discoloration” that do not appear in the original documents. It could possibly have come from a screen or the lens of a camera.

Though it seems convoluted, the FBI alleges a journalist with The Intercept made Freedom of Information Act requests for particular documents. The requests contained “specific information identifying the names of the particular documents that had not been released to the public.”

And prior to March 2016, when these requests were filed, the Intercept allegedly obtained a cache of FBI documents that included classified information. A journalist then used “knowledge of such documents to create the FOIA requests.”

It is unclear at the moment, but what it certainly seems like is the Intercept received files. Someone used the files to try and obtain additional documents on the matter of how the FBI recruits informants. The detailed FOIA requests tipped off the FBI to a potential leak, which shows how closely the government is watching for so-called “insider threats.”

Image adapted from "Shadows" by kdigga on Flickr
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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."