President Donald Trump's administration is in the throes of a crisis of legitimacy and leadership, with federal government employees concerned and unwilling to stay quiet about chaos, incompetence, and questionable acts unfolding within institutions. To respond to an increase in leaks to the press, the Justice Department pledged to escalate its policy of targeting leakers for prosecution.
Attorney General Jeff Sessions, an aggressive supporter of anti-leaks policies, indicated the insider threat task force within the government would refine policies to promote tighter control over government information. Intelligence agencies would refer more cases to the Justice Department, and the Justice Department would investigate more leaks.
"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.
He argued, "Just yesterday, we saw reports in the media about conversations the president had with foreign leaders. No one is entitled to surreptitiously fight to advance battles in the media by revealing sensitive government information. No government can be effective when it’s leaders cannot discuss sensitive matters in confidence or talk freely in confidence with foreign leaders."
According to Sessions, the Justice Department has received "nearly as many criminal referrals involving unauthorized disclosures" as were "received in the previous three years combined."
A new "counterintelligence unit" was created to manage cases. The Justice Department is also reviewing policies that affect media subpoenas.
Sessions suggested media should be respected but that "respect is not unlimited. [The media] cannot place lives at risk with impunity."
Dan Coats, who is the director of national intelligence, joined Sessions to publicly condemn the "culture of leaking."
"If you improperly disclose classified information, we will find you. We will investigate you. We will prosecute you to the fullest extent of the law, and you will not be happy with the result," Coats declared.
Yet, few specific examples of "dangerous" leaks were given in statements filled with chest-thumping banalities that are all too common when it comes to government pledges to hunt down leakers and bring them to justice.
Former CIA officer John Kiriakou, who was prosecuted for a leak and jailed by President Obama's administration, reacted, "These are not national security leaks. These are leaks that are embarrassing to the president personally, but they have nothing to do with national security. It's not intelligence-related if the president has an argument with the prime minister of Australia and then rudely terminates his phone call."
"There's no intelligence-related fallout from something like that. It's just an embarrassment to the president," Kiriakou said.
On one level, this may be viewed as a pledge to sharply escalate a crackdown on leaks. But there is also ample evidence to argue this merely continues a policy wholly embraced by the Obama administration.
Kiriakou noted Attorney General Eric Holder demanded New York Times reporter James Risen testify in the Espionage Act prosecution against CIA officer Jeffrey Sterling, who is currently serving a sentence in prison.
"Risen went all the way to the Supreme Court, and the Supreme Court ruled in favor of the Justice Department. Still, Risen refused to testify. I view this as a beginning of a war on the First Amendment, on freedom of the press, on freedom of speech," Kiriakou said.
There were a record number of leak prosecutions under the Obama administration, particularly under the Espionage Act, a World War I-era law the government has used to prosecute leakers as if they are spies.
In 2012, it was Director of National Intelligence James Clapper, who proposed using polygraph exams to force intelligence agency employees to "answer a direct question" about "whether they have disclosed information to reporters."
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The same year, general counsel for the director of national intelligence, Robert Litt, testified in a closed session by the Senate Select Committee on Intelligence. He said "robust programs" were designed as part of the insider threat program to monitor and track employees' online activities. The "intelligence community" studied and developed "automated systems" to identify "classified information published on the internet."
Military whistleblower Chelsea Manning uncovered records through a Freedom of Information Act request that showed the Insider Threat Task Force produced "psychological profiles on potential leakers and 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.'"
The files show the "intelligence community" viewed people struggling with issues of gender identity or sexual orientation as someone, who should be monitored through total surveillance of their activities, even though there is no correlation between these issues and leaking.
The "insider threat" program adopted by Obama to respond to Manning’s disclosures to WikiLeaks was unprecedented. Marisa Taylor and Jonathan Landay of McClatchy Newspapers detailed how it extended "beyond the U.S. national security bureaucracies to most federal departments and agencies nationwide, including the Peace Corps, the Social Security Administration, and the Education and Agriculture departments. It emphasize[d] leaks of classified material but catchall definitions of 'insider threat' give agencies latitude to pursue and penalize a range of other conduct."
"Millions of federal employees and contractors," Taylor and Landay reported, "must watch for ‘high-risk persons or behaviors' among co-workers and could face penalties, including criminal charges, for failing to report them." And, "Leaks to the media [were] equated with espionage." One Defense Department strategy document from June 1, 2012, stated, "Leaking [was] tantamount to aiding the enemies of the United States."
"Experts and current and former officials" that Taylor and Landay spoke to for the story suggested this program would likely "make it easier for the government to stifle the flow of unclassified and potentially vital information to the public, while creating toxic work environments poisoned by unfounded suspicions and spurious investigations of loyal Americans."
The Trump administration’s recommitment to crack down on leaks, possibly to a greater degree than Obama, will make the work environment in government even more toxic. It may breed distrust in offices and make the administration even more dysfunctional—and that will lead to more leaks.
"In the not-too-distant past, these issues of leaks were settled administratively," Kiriakou recalled.
"When I was at the CIA, I worked with a woman who was having an affair with a CNN commentator, and she leaked classified information to him. She was investigated. She admitted what she had done, but there was no Espionage Act case. She was suspended without pay for six weeks. She was barred from promotion for three years, and she had a security violation memo put in her personnel folder."
"That’s how you deal with leaks, not with task forces and Espionage Act cases," Kiriakou argued.
Coats suggested if employees with access to classified material have "legitimate concerns" there are "multiple ways for them to put forward a complaint."
"The [intelligence community] offers avenues for whistleblowers and protections for those individuals for them to report concerns without fear of reprisal. And there are other legal options available outside those channels including notifying the congressional intelligence committees or even their own congressional representative or senator in Congress," Coat maintained.
This is propaganda. Whistleblowers may be protected from reprisal, including prosecution, if the information at issue does not involve policies or programs the government wishes to defend. Or, to put it another way, whistleblowers may be retaliated against, even with proper channels available, if officials—including those implicated—do not believe there is any misconduct or wrongdoing at the center of whistleblowers' claims.
For example, Bill Binney, Thomas Drake, Ed Loomis, and Kirk Wiebe were National Security Agency employees, who filed complaints with the inspector general’s office. These whistleblowers went through proper channels around a decade ago. Their names were provided to the Justice Department for investigation, and eventually, Drake was targeted with an Espionage Act prosecution.
Once a federal employee or contractor is charged with violating the Espionage Act, there is no public interest defense. It is a strict liability offense. The mere fact that an employee signed a non-disclosure agreement is used to argue a whistleblower or leaker engaged in conduct that helped adversaries or endangered national security.
It does not matter whether the whistleblower or leaker intended to do harm or not. The courts accept this as as constitutional and appropriate within the boundaries of law, and the government is able to win just about any leak case that goes to trial.