Another Two-Tier Justice System: for “Unauthorized” Leaks

I’m traveling to Boston today for the National Conference on Media Reform (if you’re in Boston, come see my panel on “Independent Journalism and International Crisis” on Saturday!). So blogging will be light today.

But I wanted to point to one more aspect of the Senate Intelligence Committee’s Intelligence Authorization–one also highlighted by Steven Aftergood. Someone–someone not in the intelligence community, apparently–has decided that intelligence community leakers (but not leakers from other parts of government) should lose their pension if the executive branch unilaterally decides they’ve leaked classified information.

The committee’s explanation for needing the bill is cute, among other reasons, because its concerns about “unauthorized” leaks seem to admit their lack of concern about “authorized” leaks of classified information.

The Committee has had long-standing concerns about unauthorized disclosures of classified information.

Which by itself points to the arbitrariness of our classification system.

But it’s in Ron Wyden’s extensive opposition to the measure where the true arbitrary potential for this becomes clear.

Given these challenges, my concern is that giving intelligence agency heads the authority to take away the pensions of individuals who haven’t been formally convicted of any wrongdoing could pose serious problems for the due process rights of intelligence professionals, and particularly the rights of whistleblowers who report waste, fraud and abuse to Congress or Inspectors General.

Section 403 – as approved by the Select Committee on Intelligence – gives the intelligence agency heads the power to take pension benefits away from any employee that an agency head ―determines‖ has knowingly violated their nondisclosure agreement. But as I noted in the committee markup of this bill, neither the DNI nor any of the intelligence agency heads have asked Congress for this authority.Moreover, as of this writing none of the intelligence agencies have officially told Congress how they would interpret this language.

It is entirely unclear to me which standard agency heads would use to ―determine‖ that a particular employee was guilty of disclosing information. It seems clear that section 403 gives agency heads the power to make this determination themselves, without going to a court of law, but the language of the provision provides virtually no guidance about what standard should be used, or even whether this standard could vary from one agency to the next.

In other words, agency heads will get to decide, unilaterally and in secret, whether they think a former employee has leaked classified information and therefore should lose their pension.

Serving in the intelligence community is already prone to abuse. Since there is almost no transparency, agencies can and have fired people for being unwilling to participate in propaganda or illegal ops. And this would just give intelligence agencies one more tool to retaliate against people if they’re perceived as doing something wrong.

I can’t help but think of Jeff Sterling and this measure. He had a gripe about discrimination. But he also appears to have had a gripe about a really asinine plot to deal nukes to Iran. His case will be tried in court (though the agency already has a huge advantage over him, starting with the fact that they have already invoked state secrets in his case). But now Congress (or someone whispering on Congress’ ear?) wants one more tool to punish people like Sterling, this time with no due process. Moreover, in his case, the government has claimed that leaks to the American public are worse than leaks to our enemies.

The defendant’s unauthorized disclosures, however, may be viewed as more pernicious than the typical espionage case where a spy sells classified information for money. Unlike the typical espionage case where a single foreign country or intelligence agency may be the beneficiary of the unauthorized disclosure of classified information, this defendant elected to disclose the classified information publicly through the mass media. Thus, every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information, thus posing an even greater threat to society.

This measure, which would allow the government to use a two-tier justice system to secretly retaliate against those it claims leaked, seems to reinforce this growing claim to that leaks to American citizens are more dangerous than leaks to our enemies.

It seems the government believes the most dangerous spies are those who tell Americans what its government does in their name.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. MadDog says:

    Hmmm…what do you think? Originated within the White House, or perhaps among the whistle-blowing prosecution zealots at the DOJ?

    I’m guessing that Senator Diane Feinstein happily jumped right into the driver’s seat on this.

  2. MadDog says:

    OT – Jameel Jaffer in the LA Times has an Op-Ed referencing a previous Newsweek piece that I must’ve missed on former CIA lawyer John Rizzo bragging about “murdering” (Rizzo’s choice of words) folks via Predator drones:

    Inside the Killing Machine

    President Obama is ordering a record number of Predator strikes. An exclusive interview with a man who approved ‘lethal operations.’

    It was an ordinary-looking room located in an office building in northern Virginia. The place was filled with computer monitors, keyboards, and maps. Someone sat at a desk with his hand on a joystick. John A. Rizzo, who was serving as the CIA’s acting general counsel, hovered nearby, along with other people from the agency. Together they watched images on a screen that showed a man and his family traveling down a road thousands of miles away. The vehicle slowed down, and the man climbed out.

    A moment later, an explosion filled the screen, and the man was dead. “It was very businesslike,” says Rizzo. An aerial drone had killed the man, a high-level terrorism suspect, after he had gotten out of the vehicle, while members of his family were spared. “The agency was very punctilious about this,” Rizzo says. “They tried to minimize collateral damage, especially women and children.”

    The broad outlines of the CIA’s operations to kill suspected terrorists have been known to the public for some time—including how the United States kills Qaeda and Taliban militants by drone aircraft in Pakistan. But the formal process of determining who should be hunted down and “blown to bits,” as Rizzo puts it, has not been previously reported. A look at the bureaucracy behind the operations reveals that it is multilayered and methodical, run by a corps of civil servants who carry out their duties in a professional manner. Still, the fact that Rizzo was involved in “murder,” as he sometimes puts it, and that operations are planned in advance in a legalistic fashion, raises questions…

    • MadDog says:

      That Newsweek article references a Kenneth Anderson May 11, 2009 essay entitled “Targeted Killing in U.S. Counterterrorism Strategy and Law” that apparently was all the rage at the White House.

      That 44 page essay can be downloaded as a PDF here.

      Anderson has also produced a newer extended policy/political essay on the very same topic entitled “Predators Over Pakistan” via The Weekly Standard (I’m shocked, just shocked!) on March 8, 2010.

      That 10 page essay can be downloaded as a PDF here.

    • MadDog says:

      Rizzo in his own words:

      …Today, Rizzo can sometimes sound boastful. “How many law professors have signed off on a death warrant?”…

      • MadDog says:

        And the Newsweek piece closes with this:

        …These days, Rizzo is working on a memoir. He does not talk about the morality of what he did—he is not that kind of guy—but lately has been trying to come to terms with the implications of the deadly task he performed, and which others are now performing in that office building in Virginia.

        Surprise, surprise.

    • MadDog says:

      And I forgot to mention, but that Jameel Jaffer Op-ED in the LA Times is decidely “on topic”:

      …What was most remarkable about the interview, though, was not what Rizzo said but that it was Rizzo who said it. For more than six years until his retirement in December 2009, Rizzo was the CIA’s acting general counsel — the agency’s chief lawyer. On his watch the CIA had sought to quash a Freedom of Information Act lawsuit by arguing that national security would be harmed irreparably if the CIA were to acknowledge any detail about the targeted killing program, even the program’s mere existence.

      Rizzo’s disclosure was long overdue — the American public surely has a right to know that the assassination of terrorism suspects is now official government policy — but it reflects an opportunistic approach to allegedly sensitive information that has become the norm for senior government officials. Routinely, officials insist to courts that the nation’s security will be compromised if certain facts are revealed but then supply those same facts to trusted reporters. Sometimes the motivation for the disclosure is political and sometimes it’s personal, but in either case disclosure has little to do with the public’s need (or right) to know and everything to do with the official’s need to tell. Rizzo’s interview with Newsweek was particularly brazen, because Rizzo allowed his statements to be attributed to him rather than to the now-familiar “highly placed intelligence official.” But where the state’s ostensible secrets are concerned, it has become common for government officials to tell courts one thing — nothing — and reporters another…

  3. rosalind says:

    (ew: second paragraph- “…should lose their pension of the executive branch…” – did you mean “if”?)

    ~~fixed, thank you~~

  4. Gitcheegumee says:

    O/T,sort of . No doubt there will be a different tier of justice here,involving a “Kluger” .

    Source: The Washington Post

    By mid-March, as the government tells it, Matthew H. Kluger knew the FBI was closing in.

    As a lawyer for three of the nation’s premier corporate law firms, most recently in the Washington office of Wilson Sonsini, he had allegedly stolen secrets that yielded tens of millions of dollars of insider trading profits. Now he was trying to eliminate the evidence.


    On Wednesday, the government dispatched any notion that law firms are always bastions of probity and discretion, charging that since the mid-1990s Kluger had tapped into his firms’ computer networks to extract and trade on confidential information about deals involving such blue-chip companies as Oracle, Intel and Hewlett-Packard.

    Along with financial crimes spanning 17 years, he and a New York trader named Garrett D. Bauer are accused of engaging in a panicked cover-up that they discussed at length in telephone conversations with a third, unnamed conspirator, the alleged middleman.

    Read more:

    • earlofhuntingdon says:

      Garden variety insider trading and other felonies. Lawyers, printers, investment bankers, “consultants”, company insiders are always the sources, witting or otherwise, of insider trading deals. What’s unusual is that the FBI is actively pursuing it.

      • Gitcheegumee says:

        Earl,that is what caught my eye ,too,as being unusual;and ,that is why I thought it of enough interest to post..

    • lysias says:

      I wonder how they caught on to what Kluger and his fellow conspirators were doing. It sounds from the Washington Post article as though they were pretty careful about covering their tracks.

      • Gitcheegumee says:

        U.S. Securities and Exchange Commission
        Litigation Release No. 21917 / April 6, 2011

        Securities and Exchange Commission v. Matthew H. Kluger and Garrett D. Bauer, Case No. 11-cv-1936 (D. N.J. April 6, 2011)


        The Securities and Exchange Commission today charged a corporate attorney and a Wall Street trader with insider trading in advance of at least 11 merger and acquisition announcements involving clients of the law firm where the attorney worked.

        The SEC alleges that Matthew H. Kluger, who formerly worked at Wilson Sonsini Goodrich & Rosati, and Garrett D. Bauer did not have a direct relationship with each other, but were linked only through a mutual friend who acted as a middleman to facilitate the illegal scheme. Kluger and Bauer communicated with the middleman using public telephones and prepaid disposable mobile phones in order to avoid detection. According to the SEC’s complaint, Kluger accessed information on 11 mergers and acquisitions involving the law firm’s clients and then tipped the middleman. In at least nine instances, the middleman passed the information on to Bauer, who illegally traded for illicit profits totaling nearly $32 million.

        In a parallel criminal action, the U.S. Attorney’s Office for the District of New Jersey today announced the arrests of Kluger and Bauer.

        Matthew H. Kluger and Garrett D. BauerApr 6, 2011 … The SEC alleges that Matthew H. Kluger, who formerly worked at Wilson Sonsini Goodrich & Rosati, and Garrett D. Bauer did not have a direct … – Cached

        NOTE: The above is an excerpt from the SEC filing. All 11 firms are listed and they are BIGGIES-like McAfee ,just for one example. Could be why the FBI is on the case…..

        I’m curious who the unnamed man in the middle is.

        • Gitcheegumee says:

          To complete my reply,perhaps the unnamed man in the middle is the weak link in the chain,so to speak…and hence remains unnamed.

  5. earlofhuntingdon says:

    Process-free retribution. I’m surprised Dick Cheney or David Addington didn’t think of this one. Or did they? They both hated the CIA for frequently not coming up with the “intelligence” their political views demanded.

    This is a not-so-veiled attack on all government whistleblowers. Given inevitable mission creep, once such a standard establishes itself in the “intelligence” community, it will creep elsewhere in government.

    This is a Sword of Damocles. It violates all basic norms of employment standards. It ensures morale will sink lower, which will decrease productivity. Imposing such a consequence at all, let alone without due process, would probably lead to loss of security clearance. That dooms the employment afterlife of a former government analyst. Even if a clearance remains intact or is only lowered, the stigma, regardless of whether or not the decision was supported by the facts, would still attach itself to reviews and recommendations.

    Even more damaging, this McCarthyite tactic (and further example of Obama institutionalizing CheneyBush’s excesses), assures two other things: politically slanted intelligence and corruption.

    Analysts will be under greater pressure to slant their intelligence towards the results politically appointed agency heads or their masters desire. Reading the thoughts and minds of one’s opponents, after all, is what many of these analysts are especially good at. Many are also skilled at lying and other forms of deceit and manipulation. That’s why they’re good at what they do.

    In a world that already operates secretly, this is an invitation to politically appointed agency heads, who, by definition, inherit older employees who have served earlier administrations, to exact retribution for all kinds of things beyond “knowingly revealing” classified material. It’s an invitation to frustrated or insecure colleagues to tell tales. One needn’t be a fan of Babel or share Alfred Hitchcock’s dread of being the wrong man to know that such things lead to both predictable and unpredictable consequences.

    As for other forms of corruption, with mediocre pay scales and benefits under continuing attack from Congress, and with a government pension in permanent doubt, the risk that a few more employees will sell secrets or, more subtlely, cooperate too fully with a future private employer (with whom many in intelligence work on a daily basis) increases dramatically.

    A better idea to corrupt and privatize the intelligence community would be hard to devise.

  6. JohnLopresti says:

    I dont think the full senate will pass this bill, nor that president Obama would sign it, though the president*s preference, doubtless, would be to convince senator Reid that all that help in Reid*s recent close but successful reelection bid is worth a return favor to squelch this bill. Quantico is famous for rough treatment of its own enlistees, as very much a part of its esprit de corps. I think the military side of the intell community would much prefer the sort of thumb under which brig resident BManning currently subsists as a starter, then frontal trial for charges related to capital offenses. The military is very much into careerlong dedication and fair treatment. Demotion affects pension. But the office manager demerit system of obliterating pensions looks like a petty Republican ploy which will soar with Rovian symbolism but get squelched by many branches of the marginally licit intell community both military and way beyond, into the civilian and diplomatic corps branches of intell. Those folks take chances and live in a world of tones of gray. I think most everyone would want a form of open and fair adjudication in a process which has channels for appeal, not the secret and arbitrary destruction of one*s sinecure by some rival with a lowgrade jobtitle, or some bureaucrat, or some political appointee; think Porter Goss or John Bolton, ?whose pensions would those two gents have stripped?.

  7. earlofhuntingdon says:

    “Leaking” covers a wide variety of sins. As EW and the FAS article she cites point out, an unauthorized “leak” would include information released via memoirs published by former employees who fail to abide by agency rules for “pre-publication” reviews and demands for edits.

    This single measure constitutes a broad-based attack on the aggressive front the Obama administration has launched in its war on whistleblowers in defense of absolute, but one-sided government secrecy. In its parlor game, the government, if it’s interested in it, still gets to see everything you do.

  8. earlofhuntingdon says:

    Sen. Wyden points out the meme that the MSM, but not EW, wants lost: whistleblowers that reveal government corruption are meant to be protected, if not honored. This measure would do the opposite. As quoted by that same FAS article:

    “Withholding pension benefits from a legitimate whistleblower would be highly inappropriate, but overzealous and even unscrupulous individuals have served in senior government positions in the past, and will undoubtedly do so again in the future. This is why it is essential to have strong protections for whistleblowers enshrined in law, and this is particularly true for intelligence whistleblowers, since, given the covert nature of intelligence operations and activities, there are limited opportunities for public oversight. But reporting fraud and abuse by one’s own colleagues takes courage, and no whistleblowers will come forward if they do not believe that they will be protected from retaliation,” wrote Sen. Wyden….

  9. PeasantParty says:

    I’m totally blown away by this and just have to say that every damn one of these clowns have forgotten who they work for.

    Evidently the entire agency program out of DC and funded by our tax dollars feel it is it’s own overseer. The military, FBI, and CIA, along with other cyber spy programs directed at regular American citizens is a good example of who they feel their loyality belongs.

  10. orionATL says:

    (but important to me :>) )

    could someone tell me if and when b. manning will have a motion, hearing, trial, etc.?

    his case happens to be of some emotional importance to me, but since the sunday
    march, there have been only trivial bits of info trickling out.

    why the info blackout; what’s up?