James Clapper’s Anti-Leak Efforts Will Increase Information Asymmetry

As Charlie Savage and others report, Director of National Security James Clapper has instituted new efforts to crack down on leaks. The plan has two aspects. First, those agencies within the IC that have mandatory lie detector tests will add an unspecified question about “unauthorized disclosure of classified information.”

(1) mandating that a question related to unauthorized disclosure of classified information be added to the counterintelligence polygraph used by all intelligence agencies that administer the examination (CIA, DIA, DOE, FBI, NGA, NRO, and NSA).

Not only does this cover just some who might have access to classified information, leaving some agencies, contractors, Congressional employees, and White House employees, not to mention our international intelligence partners, in the clear. But it also brackets off the “authorized” disclosure of classified information. Heck, it might not even cover any of the leaks currently under investigation.

Then there’s the authorization of IC Inspectors General to investigate leaks that DOJ declines to pursue.

(2) requesting the Intelligence Community Inspector General lead independent investigations of selected unauthorized disclosure cases when prosecution is declined by the Department of Justice. The IC IG will establish and lead a task force of IC inspectors general to conduct ind ependent investigations, pursuant to his statutory authority and in coordination with the Office of the National Counterintelligence Executive. This will ensure that selected unauthorized disclosure cases suitable for administrative investigations are not closed prematurely.

As Savage has noted (and this report he links makes clear) the vast majority of leaks are not prosecuted. That’s partly because information is so widely distributed that identifying a sole leaker becomes legally problematic if not impossible more generally. In addition, many leak prosecutions would risk disclosing more classified information than simply letting the alleged leaker go free (this is probably why the Bush and Obama Administrations tried to trump up a charge against Thomas Drake rather than charge known leakers who exposed the illegal wiretap program).

Clapper’s solution will instead have Inspectors General pursue suspected leakers instead. Not only would this free investigative methods from evidentiary rules (so for example, IGs might use wiretaps and other intrusive investigative techniques because they would never need to be disclosed or not in court). The secrecy of such investigations would also make the exposure of selective prosecution impossible. And given the impunity with which the government can give or withdraw clearances, it would mean those unfairly targeted would have no recourse.

All this might be less problematic if the IC IG hadn’t already proven himself to serve government cover-ups rather than the citizens of this country. But as it is, this scheme is ripe for abuse.

Which won’t end leaking. Instead, it’ll make whistleblowing even riskier, as compared with sanctioned leaks, than it already is. Which, so long as Congressional oversight committees refuse to exercise any oversight, will mean the intelligence committee will operate with further unchecked power.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

8 replies
  1. JTM says:

    Here’s another naive Iowa question: what does it take for a disclosure to be “authorized”? Does it require declassification or does Pixie Dust also qualify? And what are the people who take regular lie-detector tests told? Because if they are told that Pixie Dust equals authorization, then the tests won’t do a whole lot because they will honestly believe, when asked, that the “leak” was authorized. Even more, an employee who believes (maybe due to some out-dated sense of right and wrong) that just being told to leak something doesn’t actually mean that the disclosure is authorized will get caught by the test, while another employee who leaked the same information will pass if they buy into Pixie Dust. In other words, the lie-detector tests will only catch the honorable.

    Or is that a feature, instead of a bug?

  2. MadDog says:

    When I read Charlie Savage’s piece last night, one of the things that struck me was his description of the new question to be added to the standard polygraph examination:

    “…The first step announced by Mr. Clapper relates to a counterespionage polygraph examination officials take when they join an intelligence agency. Typically, it is readministered every seven years. From now on, besides asking about contact with foreign spies, examiners will ask the officials whether they leaked any restricted information…”

    I had read previous news reports about the new question and some of the other MSM outlets had some variation in their specific description of that question. Here’s how the question was described from CNN:

    “…The new question that will be added to the current counterintelligence polygraph test – which intelligence community employees who handle classified information are required to take – will specifically ask whether the employee has disclosed classified information to a member of the media…”

    And from CBS:

    “…National Intelligence Director James Clapper announced Monday that a question would be added to the routine lie detector tests given to employees, specifically asking if they have given information to reporters…”

    (My Bold)

    The disparity in the descriptions may be nothing more than an individual journalist’s choice of words, but the differences seem rather wide-ranging in their implications.

  3. MadDog says:

    “…Which, so long as Congressional oversight committees refuse to exercise any oversight, will mean the intelligence committee will operate with further unchecked power.”

    (My Bold)

    Did you mean community EW rather than committee where I bolded?

  4. emptywheel says:

    @MadDog: Well, I quoted directly from the DNI release. Which suggests they’re not committing to what the question will be yet. That’s a point Steven Aftergood has made–a lot depends on the question.

  5. Arbusto says:

    So how many levels of absurdity does this lead to? Fail a lie detector test and you’re out. Further, if the DoJ doesn’t prosecute for lack of evidence, or selectively doesn’t investigate and therefore can’t prosecute, IG’s will retill the soil that may or may not meet proper investigative legal standards for prosecution. Maybe we just found a new use for Gitmo or other black sites.

  6. earlofhuntingdon says:

    Clapper’s “solution” is not adding anything new to the government’s already existing arsenal of tools it can use against actual leakers. It is certainly another tool in Mr. Obama’s personal campaign to diminish the lives and work of potential leakers.

    After eight years of BushCheney, those bureaucrats left in government who believed in both the rule of law and their work (many were fired or left in disgust or out of fear), there were hundreds of potential leakers. I suspect most hoped that Mr. Obama would provide official channels through which their professional concerns could have been addressed. He gave them the iron fist in the iron glove.

    Having adopted and, in many cases worsened, BushCheney excesses, the list of potential whistleblowers must have grown considerably since 2008. That would be especially so given the grand canyon between the brand of candidate Obama and the reactionary conservative he is in practice.

    His repeatedly stepping up his war against public disclosure suggests that he senses increasing vulnerability owing to his own administration’s conduct. There would be no better time to blow the whistle, to make public one’s intense concerns over government wrongdoing, waste and crime, than during an election year.

    One suspects that Mr. Obama patterns himself not in comparison to FDR, JFK or LBJ, but Lee Kuan Yew.

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