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Washington’s War on Leaks, Explained

Laying out new efforts by the Senate and the Pentagon
to crack down on national security leaks.

Intelligence officials appear before the Senate Select Committee on Intelligence on Capitol Hill January 31, 2012 in Washington, DC. (Photo by Win McNamee/Getty Images)

Aug. 2: This post has been corrected.

Accusations continue to fly from lawmakers and presidential hopeful Mitt Romney that the Obama administration has leaked national security information for political gain. Leaks, of course, are nothing new in Washington, but now the Senate has jumped into the fray, with a new proposal to tighten control over the flow of information between intelligence agencies and the press.

This summer the Justice Department opened two investigations into leaks about a foiled terror plot and U.S. cyber-attacks against Iran. But leak prosecutions haven’t always proved easy. As we’ve explained before, there’s no single law criminalizing the disclosure of classified information. National security leaks are sometimes prosecuted under the Espionage Act, which has been used a record six times under Obama, but there is perennial debate over whether to introduce more stringent laws against leaks.

On Monday, the Senate Select Committee on Intelligence filed new anti-leak legislation. The bill wouldn’t amend the Espionage Act, or make any blanket criminal penalty for leaks. But it does include several provisions that could stymie reporting on national security.

One provision would require intelligence employees to report all contact with the media. This goes farther than most existing policies; a standard intelligence polygraph question asks whether employees have leaked classified information, but not about any media contact. The measure also doesn’t define “media,” or “contact”—does a blogger, or think tank count?

Prospects for the anti-leak provisions aren’t clear. Previous attempts to pass anti-leak legislation over the past decade have failed, usually faltering on concerns about whistleblower protections and press freedom. Senator Dianne Feinstein, D-Calif., who chairs the intelligence committee and helped author the proposed measures, told Politico that she would be open to revising the bill.

Other language in the bill states that only a director, deputy director, or designated public affairs staff of an intelligence agency “may provide background or off-the-record information on intelligence activities” to the media. As the Washington Post noted, that would make standard background intelligence briefings on unclassified information by CIA and other analysts illegal. (Intelligence employees could still give authorized, on-the-record interviews, but those, of course, are rare because those employees usually need to protect their identities).

Tom Devine, legal director for the Government Accountability Project, said that those two provisions amounted to “a gag order on unclassified information,” which could violate whistleblower and free speech protections.

Gregg Leslie, the interim director of the Reporters Committee for Freedom of the Press, says that the restrictions would hamper reporting on sensitive issues, but not because they stem leaks. “It’s not all about getting a scoop on some hot story, it’s about getting the facts straight,” he said. “You need to be able to bounce your ideas, your theories, your tips from a million sources, off of someone in the government who knows what’s right.” The Reporters Committee supports other media groups who filed a memo opposing the bill.

Another provision of the bill asks the Attorney General to consider changes to the Justice Department’s leak investigations, including its policy of only rarely subpoenaing journalists because of the First Amendment implications.

The Senate bill focuses almost exclusively on the intelligence community. It mostly doesn’t cover the White House, most of the State Department, much of the Pentagon, and Congressional aides with security clearance.

The measures would also require the Director of National Intelligence, who oversees the 17-agency “intelligence community,” to set up new procedures for reporting leaks, and to specify internal punishments. Even if a leaker was not subject to criminal prosecution, they could lose their federal pensions, and if the information they disclosed was about a covert action, their security clearance would be permanently revoked.

Some of that overlaps with existing agency policies—government employees and contractors with security clearance already usually have to sign non-disclosure agreements, and in June, the Director of National Intelligence introduced his own beefed-up anti-leak measures.

But Senator Ron Wyden, D-Ore., who cast the sole vote against the bill in committee, wrote in a commentary that he was concerned about the bill’s implications for whistleblowers. The provision that someone could lose their pension if they were “determined” to have leaked, Wyden wrote, is vague and could potentially be used to retaliate against whistleblowers.

The bill also describes the seemingly paradoxical official leak, or “authorized disclosure.” Officials would be required to notify Congress of any disclosure of classified information to the media or others. The report must specify why the disclosure was authorized, and whether the information was specifically declassified for disclosure or if it remained classified.

It’s not clear what Congress could do if they believed that an “authorized disclosure” was wrongfully disclosed. Spokespeople for Senators Feinstein and Saxby Chambliss, R-Ga., vice-chairman of the intelligence committee, did not respond to requests for further comment on the bill. Responding in Politico to criticisms of the bill, Feinstein said that “we know there’s harm done,” to national security by leaks and that it was “worth a trial” to stem the danger.

The proposals for tighter control over classified information come at a time when members of Congress have complained about the administration’s lack of transparency on several classified programs—in particular, the CIA’s drone program and the targeted killing of terror suspects—which they say has hampered Congress’ oversight role.

Since 9/11, the amount of information classified and the number of people with security clearance has ballooned, to more than 4.8 million people. This has led some to question whether “classified” always describes truly sensitive national security information. Leslie, of the Reporters Committee for Freedom of the Press, described it as “an old steam boiler — the answer is not always to patch the leaks but to relieve the pressure. Imposing so much secrecy means people are more likely to leak.”

In July the Pentagon announced that it would be instituting “top-down” monitoring of the press for leaked classified information. Journalists and transparency advocates have criticized the initiative, worrying that it could stifle reporting.

A Pentagon spokesman said Monday that exactly how that new policy will be implemented was still being finalized. He said that the effort was meant to identify when classified information has come out in the news, not to monitor journalists as they report. Per a preexisting Pentagon policy, Public Affairs officers are supposed to be “the sole release authority for all DoD information.”

Correction: An earlier version of this post said that Tom Devine was the legal director for the Whistleblower Protection Act. He is, in fact, legal director of the Government Accountability Project.

Clearly, if it’s not propaganda, it’s not worth knowing, right?

Or, maybe instead of preventing leaks, we could stop doing things that need to be leaked.  We could stop bombing civilians and reclassifying them as militants.  We could stop torturing people.  We could stop trying to secretly pass laws that violate the Constitution.

In the current political climate, we need to encourage leaking, if anything.  Without transparency, we have overseers, rather than a government.

And you’ll all notice that they’re totally against leaks, but leave nice loopholes for themselves.  After all, there are reelection campaigns to win.

(Meanwhile, Bradley Manning is past eight hundred days held, out of a legal maximum of a hundred fifty, for allegedly endangering soldiers in some way that the government refuses to disclose and nobody else can authenticate.  Totally legitimate, right, Washington?)

First thing I’d want to know is how many Democratic “staffers” are actually in the employ/under the control of the Republicans and/or one or more of the so-called “conservative” special interest groups from the military-defense, financial, Big Carbon and other industries who have found that they can increase profits by working to weaken or eliminate the protections and benefits due the many in America.

And vice versa, of course; that is, I’d be interested in Republicans who have “staffers” that are moles for entities and groups that are inimical to the right.

Without ruling out the possibility of foreign agents in any of the aforementioned cases; there are nations who have enough of a grasp of strategy to understand that a divided enemy is an impotent enemy.

Then I’d look for staffers on both sides that leak at the direction of their bosses - and last but not least, I’d look at the politicians themselves.

The point being the political animals who are Republican and Democratic members of Congress are riding the gravy train and they know it, their willingness to risk losing that ride is a natural constraint (with the caveat that it would restrain long-time politicians more than it would radicals from fringe groups who are new to Congress such as the Tea Party types).

And finally I’d look at the arrogance level of the individual politicians and high level bureaucrats…the more power they perceive they have or the more self-importance they award themselves, the more likely they are to feel that whatever they want to do is justified simply because they want to do it.

After all that, I’d look for mid- and low-level bureaucrats in the “As” and the Pentagon/DOD with the typical motivations of money, blackmail, and/or the boosting of their self-image due to the rather tired belief that running their mouths about the “important” stuff they know increases the perception of their own importance.

Although that latter motivation is far from unknown among high-level bureaucrats and members of Congress.

Lincoln Nielson

Aug. 2, 2012, 6:09 p.m.

One more nail in the coffin of American press. . . guess RT will be getting bigger.

walter d. shutter, Jr.

Aug. 2, 2012, 6:22 p.m.

Freedom of the Press, guaranteed by the 1st Amendment, v. Safeguarding National Security Info. 

What a choice!

My sympathies lie with the members of the Fourth Estate because it has been my experience that when government officials want to “cover their asses” they classify it.

The US was behind the cyber-attack intended to cause a nuclear accident in Iran.

The American public knows this because of a leak.  That’s good.  We should know what the government workers we pay are doing.

Democracy only exists when the public is informed and can react to government actions.

We need more leaks for a better-informed public.  Not fewer leaks for more ignorance.

@Eric Jaffa:  Said attack was the equivalent of putting sand in somebody’s carburetor:  The intent was not a “nuclear accident” with the implied release of radioactives but to make the equipment break down.

http://arstechnica.com/tech-policy/2012/06/confirmed-us-israel-created-stuxnet-lost-control-of-it/

The requirement to have thousands upon thousands of centrifuges - the targeted devices - running for months and even years to produce the requisite amount of enriched uranium for a nuclear device might suggest to you that the actual amount of radioactives contained by any one centrifuge at any one moment in time is quite small.

http://isis-online.org/uploads/isis-reports/documents/ISIS_Analysis_IAEA_Rerport_24Feb2012.pdf

And if the operation had completed with absolutely no publicity it would have been a “good thing” for it would have been repeatable; that is, Iran’s attempt to accumulate enriched uranium could have been permanently stymied without bloodshed.

And this is why Wikileaks.

Governments must be accountable.  The US preaches this mantra to others, hiding its own actions merely stinks of hypocrisy.

But shhhh—whatever you do, don’t use the term “police state”!

Stephen, I agree.  To give a concrete example, Obama wasn’t even considering upholding his promise to withdraw from Iraq until he provisional government revoked our immunity (from prosecution for anything we do on their soil).  That happened because WikiLeaks publicized the video of the soldiers laughing while shooting civilians.

If you know an Iraq vet who came home safely, Bradley Manning is the man to thank.

The worst part of this is the apathy-to-aggression WikiLeaks sees from the “mainstream press,” even as it becomes clear that the Intelligence Committee is using them as a foothold to gain control over newspapers and television.  Even as Feinstein states that the New York Times is next, Bill Keller is pretending that Assange was just a minor source not worth protecting, and certainly not a peer who might be.

Actually, no.  The worst part is that, the same government officials that claim that their version of Democracy can’t exist outside the cloak of secrecy, the every move and thought of the American people must be tracked and monitored for nebulous defensive reasons.  What could go wrong?

The only way total transparency in government would work is:

1)  There was no such thing as “the United States of America” - that is, the entire planet were under the control of one government

2)  Within that one, planet-spanning nation there were no individuals interested in replacing democracy with totalitarianism

Item #1 is simply not the case.  The current existence of the modern American right within a nation that served for a long time as this planet’s “beacon of democracy” suggests that #2 will never be the case.

Steve, I think you overlook (3), secrecy becomes obsolete.  There are two ways for that to happen.

First, we stop accepting “national security” except in narrowly-defined, validated scenarios, and run those officials who hide behind secrets or belittle honesty out on a rail.  In a world where Americans cheer for a “team,” rather than a principle, I agree that’s not entirely likely.  But the Cybersecurity bill flopped, last night, due to citizen pressure, so anything is possible.

After all, Congress is trying to seal leaks because it’s running scared.  They saw years ago that “new media” can’t be ignored.  Now they’re learning that it can’t be bullied.  The next step is to try to break it through the force of law.  And that’ll fail, too, as long as the American people stand up for transparency.

Second, in a pervasively-networked world, transparency is inevitable.  Target’s computers can deduce that a teenage girl is pregnant before she knows.  A research team is using WikiLeaks data to successfully predict attacks in Afghanistan.  Those same algorithms can obviously be replicated and turned by enemies and rebels against a government

Our government and all governments may soon be faced with the choice between voluntary transparency and an enemy of the state forcing transparency, wrecking operations and endangering lives by predicting strategy and weaknesses and publishing them widely.  Given the cost of secrecy (in money and bad decisions), Congress needs to understand the former route before the latter lands.

In software, we say to shun “security through obscurity.”  Not publishing the internal operation of an encryption algorithm, say, is not a deterrent to attack and doesn’t make it any more difficult to crack the code.  It’s usually worse with most conventional strategy and secrets:  The bigger the secret, the easier it is to figure the secret out without direct access to the content.

You argue against secrecy with an argument that secrecy doesn’t exist?  So what is the point of arguing against secrecy?

And I have no little knowledge of software…and secrets.  The intelligence from WikiLeaks is long stale if not obsolete; anybody who is saying that they can predict attacks just from readily available data in combination with revelations found in WikiLeaks is…

Blowing smoke.

I debated for a while, and finally decided “Oh, what the heck.”

What I said in no way rules out the possibility that someone has another source and is foolish enough to think that hypothesizing a software program that works in combination with Wikileaks provides a plausible cover sufficient to prevent anyone from suspecting the existence of that source.

Steve, all I can say is go look up the research.  If you do have “no little knowledge of software,” you’ll be able to follow it.  The paper reads as sufficiently credible to me, if in the primitive stages.

Or you could hypothesize the world you want to live in and discard and ignorantly mock all evidence that we don’t live there.  Either way.

John, I would note that adding a link to the paper (just everything after the two “//” symbols to hasten its progress through moderation) you refer to would permit myself and all other readers to make independent decisions on the credibility of your conjectures.

Regardless of what worlds we individually choose to live in.

Yeah, it’s a shame it’s only on one hidden site protected by hungry wolves, rather than covered and linked to by…let’s see…most of the major tech sites like Wired, Russia Today, Vice, Mother Jones, and a bunch of conspiracy/anti-government-oriented sites, not to mention WikiLeaks itself and some varying local coverage.  And it’s not like everybody has search engine access (“afghanistan predict attack wikileaks”) or would assume a direct link to a non-free journal was someone pushing misinformation.

In other words, it’s the Internet.  You could have looked it up in a tiny fraction of the time it took to accuse me (three times) of making it up and with much less stress.  If you can’t figure that out, I don’t have much faith in your reading comprehension or your inclination to try to read the paper, either.

That pissiness aside, here’s the spoon-feeding:

pnas.org/content/early/2012/07/11/1203177109.abstract

@john:  You said “A research team is using WikiLeaks data to successfully predict attacks in Afghanistan.”

A perusal of your belatedly-provided link (which, if you had looked beyond your desire to infer superior knowledge and your tendency towards “pissiness”, you would have included from the start as you would have included the varied nature of ProPublica’s readership in your reasoning and so reached the inescapable conclusion that the technical skill sets of ProPublica’s readership should also be assumed to be widely varied - in turn making you realize that the supposition that the supporting data you insist exists is “easily found” is insupportable) provides the reader with an assertion that they predicted later attacks amidst a truly amazing paucity of substantiating evidence.

Even links provided therein to other data (to include http://www.afgnso.org, which - no doubt in the interest of establishing scientific credibility - does provide links for those who wish to “find a massage, nightclubs, casinos, clubs, and other erotic services” in North America) and formula-filled papers such as

http://www.pnas.org/content/suppl/2012/07/13/1203177109.DCSupplemental/pnas.1203177109_SI.pdf

do little more than indicate that - gee willikers - targets in Afghanistan that are accepted to be “high-value” in any conflict were indeed targeted.

I.e., what you proffer is not useful predictions of future targets which include specifics - the what/when/where/force levels involved - but a list of assumptions that can be made in any conflict arena.  That is, they “predict” normal activities in time of war in any war;  predictions that can be made without the inclusion of a distraction such as the Wikileaks documents.

Or to put it another way:  I can take any issue of last year’s USAToday newspaper and make a prediction on next year’s events if I am careful to exclude specifics and restrict myself to areas where certain established “rules of behavior” are the norm.  For example, I can point to the stock market results from 2011 in that issue of USAToday and say that the stock market will change from that closing number this year.  And I will be right - as long as I don’t include the specifics of when and by how much the market will rise or fall.  I can - within reason - even predict which sectors will rise and fall based upon current events.

To conclude, predicting that what normally happens under certain conditions will indeed happen is a no-brainer…which is something that palm readers and crystal ball gazers depend upon in order to separate the gullible from their money.

The only thing that link and its contents caused me to worry about is whether or not some idiot in the Pentagon, NSA, DoD, CIA, or certain other more clandestine entities handed over a large wad of taxpayer dollars for “further investigation” a la the movie The Men Who Stare At Goats (George Clooney).

I think you do the United States military - and the loved ones of those Americans who have fallen and will fall in Afghanistan - a great disservice to use an argument that implies many American lives could have been saved but were not if the data revealed in Wikileaks had been properly used to support your personal - and myopic - desire to see all government data leaked.

Making our government totally transparent by routinely revealing data of the sort dumped by Wikileaks on the morning news would, in fact, ensure that our casualty rates in Afghanistan soared dramatically.  Afghanistan has already been transformed from a justifiable criminal pursuit into a mismanaged occupation and attempt to reprogram a society….to turn it into nothing more than a stage for the execution of our military by making our government totally transparent would be the act of a madman.

Might as well hand the reins of the United States of America over to such as Dick Cheney.

(In case anyone wonders why I chose secretive “Mr. Personal-Man-Sized-Wall-Safe-In-His-Office” Cheney as my example for “worst case” scenario, it is because secrecy designed to enable criminal behavior and too much “transparency” have the exact same end result:  Suffering, death, and the destruction of our ability to defend democracy and so the American people.

I am rather coldly pragmatic:  I am interested in results - and only those results that protect democracy and the American people without jeopardizing the ability of our military and our people to hold their heads high with the knowledge that what they do is the right thing to do because our motivation is to protect the lives and freedom of not just the American people but all the peoples of this planet.

That might serve to help you understand how I can despise the American right while being…hawkish…on other subjects.)

This “transparency in government” is a thorny problem for me.

You see, our right intends to subjugate the American people by so corrupting democracy that it neither represents the will of the American people nor seeks “to promote the general Welfare” as our Constitution commands.  That, in turn, will permit them to attain utter and absolute control of all of America’s wealth.  Since in a capitalistic society (especially if the right succeeds in their ongoing effort to eliminate government’s ability to intervene, thus making “Nobody rides for free!” the national motto) that equates to the power to control economic mobility and even the power to determine who shall live and who shall die - and that will be the end of democracy as we know it.

Put another way, that will be the end of:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

All of which leaves me in the awkward position of wanting more transparency in government when our right is in power for they continually and secretly plot the destruction of democracy - but when anybody else is in power, I want the subject of transparency approached with care, for total transparency curtails both the safety of our military and our ability to detect and preempt the plots of our so-called “conservatives” (itself a misnomer, for totalitarians is the far more accurate word).

I truly miss the days before OPEC and the decision of the Republicans to side with those Islamic OPEC nations and Big Oil against the American people.  Once all of that oil money started flowing into GOP coffers and their dreams of a “permanent majority” (unwise of them to use that phrase - since in a democracy that means the end of democracy) began unfolding, I have found that their actions force me ever closer to playing a mediocre imitation of Tom Clancy - documenting and, where possible, predicting the strategies and tactics they use/will use in their war upon democracy and the American people. 

It was way more fun just being an unremarkable American thought he owed his country some military service for he knew that hard work would then permit me to enjoy life among the freest - and best [ok, that’s arrogant, at a minimum - but I don’t care] people in the world.  Now…after three decades of running my mouth warning of the danger represented by the Republicans and neoliberal Democrats - first on the BBS systems that preceded the Internet, and then on the Internet itself -  I’m tired…so very, very tired. 

I make my living writing software, so I am constantly around computers…many of them, in fact, which is why I can run my mouth while I wait for this or that to complete (or tell me to press or click another button…grrrr.)  But if I should find myself suddenly financially capable of abandoning this line of work, then I will disappear from the web entirely; as I said I am tired.  And I am frusrated:  Some of my fellow Americans learn too slowly (perhaps they refuse to believe that - because they are not - Americans could be so vile?); some are too wrapped up in the short-term gains they attain by permitting the right to destroy the America their children will inherit; worst of all, some are only too happy to support the right because the right will tell them which Americans it is “OK” to hate and abuse.

I would feel guilty for awhile, I suppose…but not for long, for - unlike most Americans - I can say that I tried to save their children’s future.  Thirty-plus years of trying…with so very little to show for it.

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