Former FBI special agent Terry Albury was sentenced to four years in prison for retaining and releasing documents to a media outlet on the FBI’s racial profiling, surveillance, and informant recruitment practices.
He accepted an agreement in April, where he pled guilty to two counts of violating the Espionage Act. Both offenses are felonies.
Albury was the only black agent in the region for most of the time that he worked for the FBI’s terrorism squad in Minnesota. He was a special agent in the FBI’s Minneapolis Field Office from 2012 to August 28, 2017.
His defense attorneys asserted Albury’s unauthorized disclosures to the Intercept were an “act of conscience, of patriotism, and in the public interest.” They were made for “no personal gain whatsoever.”
“The documents at issue advanced the discourse necessary in a free society about how to maintain the delicate balance between freedom and security,” his attorneys added. “He was endeavoring to resolve what for him became an insurmountable moral conflict between his role as an FBI agent sworn to uphold the written law and his personal commitment to social justice and human rights.”
The federal court in Minnesota was urged to approve a sentence, where Albury was placed on probation.
Attorney General Jeff Sessions celebrated the sentencing of Albury and declared, “We are conducting perhaps the most aggressive campaign against leaks in [the Justice Department’s] history.”
“Today’s sentence should be a warning to every would-be leaker in the federal government that if they disclose classified information, they will pay a high price,” Sessions added.
U.S. Attorney G. Zachary Terwilliger of the Eastern District of Virginia stated, “Albury transmitted classified information not just to one hostile foreign power but to every hostile foreign power with the ability to pick up a newspaper or access the Internet.”
Terwilliger’s argument is identical to the argument U.S. military prosecutors pursued against former Pfc. Chelsea Manning, when they accused her of “aiding the enemy” by disclosing documents to WikiLeaks. Their pursuit of that charge was widely viewed as a threat to press freedom.
“This was not whistleblower activity,” Terwilliger continued. “Albury made no attempts to engage in any of the legitimate whistleblower processes available to him, and instead chose to betray his oath and his colleagues by leaking classified national defense information to the press.”
As described in the sentencing memorandum submitted by Albury’s attorneys, he became an FBI agent in the late 1990s because he wanted to help stop sex trafficking. He worked on the FBI’s Crimes Against Children Unit, which handled child sexual abuse and child sex tourism cases.
Following the September 11 attacks, Albury was on a terrorism squad in San Jose. This work happened when the FBI is known to have routinely profiled Muslims. Agents attended meetings and religious services to document and disseminate “names of attendees and their associations and affiliations,” as well as the “contents of sermons, speeches, or conversations.”
“Albury grew increasingly troubled by the FBI’s approach to counter-terrorism enforcement. He was under constant pressure to bolster the squad’s number of active investigations and informants, irrespective of the threat level posed by the individuals in question,” according to Albury’s attorneys.
As alleged abuses unfolded, Albury did not leak information to the press. He complained internally.
“Cases were opened on thin or non-existent evidence.” Yet, when Albury protested, he was informed “the degree of predication was not his concern.”
When the San Jose squad’s case numbers grew, Albury was increasingly concerned about the “factual bases” for cases. He saw them as “highly unethical” because they were “based on information from informants, who were known to be unreliable or deceptive.”
Oral reports to supervisors did not lead to any changes to policy. He voiced his displeasure in “closing statements” of reports. Supervisors ignored or disregarded his concerns.
“At this point, he began to feel personally responsible for, and thus deeply conflicted by, his participation in surveillance of civilians that he viewed as unduly invasive and harassing. His distress at the nature of the work he observed and participated in was compounded his co-workers’ coded statements about Hispanics and African-Americans, with the caveat expressed to Mr. Albury that he should not be offended because he was ‘different” and not like ‘those other black people.'”
Haunted By Terrors And Disillusionment
From December 2009 to April 2010, Albury was deployed to Iraq. He “frequently witnessed deep animus held by U.S. personnel toward Iraqis, and on more than one occasion, [he] believed that he was complicit in acts of torture.”
The sentencing memo from his attorneys describes two instances, where he was certain he was implicated in torture.
At a prison camp in Iraq, he interviewed a detainee accused of killing U.S. soldiers. He had difficulty getting the detainee to talk to him and shared this frustration with a military officer. Days later, the detainee was “more talkative and provided more information than in the past.” Albury believed this was a result of torture.
He was assigned to “interview a detainee brought to a building by CIA officers who were working with the Iraqi Special Forces. The goal was to address the detainee’s alleged contacts in a certain U.S. city.”
“The detainee was brought in, shackled from head to toe, masked and blindfolded with black goggles over his blindfold, and in an orange jumpsuit,” according to the sentencing memo. Albury “vividly recalled that the man moved as if he was in pain, and the sound of shuffling and shackles as he entered the room reminded him of Guantanamo prisoners. Mr. Albury came to believe that this man had been or would be the subject of torture.”
Albury returned to the United States and was “haunted by the terrors and disillusionment” of his deployment. He felt depression, anger, and fear. He did not want to work on the terrorism squad in San Jose anymore and was reassigned to a team that responded to crime and extortion in the Vietnamese community in San Jose.
The kind of moral injury that Albury suffered only worsened in Minnesota. In 2012, he became part of a squad that investigated support for al-Shabab, which the defense attorneys describe as an “Islamic militia group seeking to topple Somalia’s weak transitional government.” The U.S. government designated the militia as a terrorist organization.
Albury had difficulty with the “cultural attitudes” present in directives he was supposed to implement against Africans and African-Americans, particularly Somalis. He firmly believed that his work recruiting and supervising individuals who were supposed to work as informants bred “profound distrust between law enforcement representatives and the Somali community.”
As the sentencing memo describes, Albury felt “deeply conflicted by his involvement in raids and interrogations that he increasingly saw as unjustified and ineffective. He also felt increasingly isolated as he did not view any of his colleagues as people with whom he could share his concerns.”
“Albury’s isolation and alienation was compounded by his observations and experiences of racism, including racial jokes and slurs and verbal hazing, directed both at himself and at minority communities in Minneapolis, in particular the Somali community.”
In 2016, Albury downloaded, removed, and copied documents on the recruitment of potential informants, as well as documents on policies for identifying extremists, which have been criticized as “profiling and intimidating minority communities.”
When he was assigned in 2017 to work for Customs and Border Protection at the Minneapolis/St. Paul International Airport, he was charged with recruiting potential informants at the border. He continued to copy information related to counterterrorism efforts.
The Norm Of Selectivity In Leak Prosecutions
The case against FBI whistleblower Terry Albury is one of a handful of prominent leak cases the Justice Department has prosecuted under President Donald Trump.
NSA whistleblower Reality Winner received the longest sentence ever for an unauthorized disclosure and pled guilty to violating the Espionage Act when she released an NSA report on alleged Russian hacking of voter registration systems during the 2016 presidential election.
Former Senate intelligence committee security director James Wolfe pled guilty to lying to FBI agents when they questioned him about his disclosure of unclassified information to reporters. He denied talking to journalists about Senate plans to have Trump campaign adviser Carter Page testify before the committee.
On October 16, as Josh Gerstein reported, Natalie Edwards, an employee of the U.S. Treasury Department, was charged with multiple offenses for allegedly disclosing “a large volume of confidential financial reports, including information related to special counsel Robert Mueller’s investigation” into the 2016 Trump campaign.
But of the aforementioned cases, only Albury and Winner were charged with violating the Espionage Act.
Albury’s defense attorneys argued Albury’s disclosures on the FBI’s “abuses” of its “enormous investigative authority” granted after the September 11 attacks did not deserve punishment. Particularly, rules governing classified information make clear that an agency is not supposed to classify information to “conceal violations of law, inefficiency, or administrative error” or to “prevent embarrassment to a person, organization, or agency.”
They argued the Espionage Act was intended for spies and was never supposed to be an Official Secrets Act that could be used to punish government officials without considering their motives or the intent behind their release of classified information.
Albury’s attorneys also invoked the double standard for whistleblowers who embarrass government and cited the case of former CIA director David Petraeus, who pled guilty to a misdemeanor and served no time in prison even though he released highly classified material to his biographer—a woman he was having an affair with—and lied to the FBI about it.
Comey conceded in his book, “A Higher Loyalty,” that this was a “double standard based on class,” and, “A poor person, an unknown person—say a young black Baptist minister from Richmond—would be charged with a felony and sent to jail.”
Another example where a disclosure went unpunished is the case of retired Marine Corps general James Cartwright. He disclosed information to the New York Times about the Stuxnet virus that was used by the U.S. in cyber warfare against Iran. He lied to the FBI during their investigation. Before sentencing, he was pardoned.
Further revealing is how the CIA recently asserted in court that it has “the right to disclose classified information to selected journalists and then to withhold the same information from others under the Freedom of Information Act.”
The CIA wrote, that “[t]he Court’s supposition that a limited disclosure of information to three journalists necessarily equates to a disclosure to the public at large is legally and factually mistaken.”
“Selectivity in disclosure, prosecution, and punishment is the norm in the intelligence community,” Albury’s defense attorneys argued. “Albury’s sentence will not rectify that problem.”
Nonetheless, prosecutors insisted Albury’s attorneys could not make comparisons between cases of disclosures to the press because each case has its own set of “unique” challenges.
“Each of these cases present a different tension between the prosecutorial and intelligence interests at stake,” the government’s sentencing memo contended. “Further, when such cases are resolved through guilty pleas, many of the facts underlying those pleas remain classified. Thus, making comparisons between cases based on publicly available information is of little utility.”
As is typical, the government insisted in its sentencing memo that Albury’s motive was irrelevant but proceeded to argue he had no “benign motive.” The documents detailed no “abuse” whatsoever.
Prosecutors requested a 52-month sentence for two offenses that stemmed from the disclosure of several documents published by the Intercept. It was a shorter sentence than what prosecutors requested for Winner, who released only one document.
There is hardly any consistency when it comes to the government’s war on whistleblowers, but it does not matter. Prosecutors are arbitrary and impulsive, driven as much by the political climate as they are by their desire to see the system deliver retribution.