May 10, 2014
It was reported on May 8 that the Office of Director of National Intelligence, headed by James Clapper, had issued a directive barring past and current personnel from citing or talking about "known leaks."
The directive was apparently not defensible when subjected to transparency. ODNI’s Public Affairs Office sent around a workforce memo that sought to "clarify" the new expanded gag policy on employees.
This is what it was before transparency: "ODNI personnel must not use sourcing that comes from known leaks, or unauthorized disclosures of sensitive information. The use of such information in a publication can confirm the validity of an unauthorized disclosure and cause further harm to national security. ODNI personnel are not authorized to use anonymous sourcing."
After the directive was subject to transparency through coverage in the news media, the policy was reworded, "ODNI employees, current and former, may not rely upon unauthorized disclosures as a source for factual statements or as proof that the information is no longer classified. Nor may they cite "anonymous sources" from media reporting if the citation, combined with their perceived inside knowledge, would tend to confirm classified information. They may cite more generally to media as long as by doing so they do not confirm classified information."
The new language is what is defensible in public. The old language represents the true intent of this policy: to impose a culture of enforced ignorance on the intelligence community, which pretends leaks or whistleblowing did not happen so the government can continue to keep information, including information that may be in the public interest, secret.
If employees can be punished for using leaks to make "factual statements" about an issue, policy or program, that is essentially the same as being prohibited from sourcing material to "known leaks."
What happened was individuals took a look at the directive and suggested it violated the First Amendment. ODNI had to rewrite it so it would be harder to argue it violated freedom of speech.
The pre-publication policy, along with a previous policy against talking to reporters, combine to impose vast control over the flow any information related to US intelligence. Any employee found to be in violation can have their security clearance stripped. That individual may be fired too.
Jack Goldsmith, a former Office of Legal Counsel lawyer under President George W. Bush, wrote, "Both strike me as overbroad to the point of practically unenforceable, perhaps by design." And, "These two directives will, I think, do much more to stem the flow of classified information to the public than the leak prosecutions of the past few years."
That is unfortunate for Thomas Drake, Stephen Kim, John Kiriakou, Shamai Leibowitz and other victims of Espionage Act prosecutions, who have had their lives disrupted or destroyed by zealous Justice Department attorneys. It is unfortunate for Chelsea Manning and Edward Snowden, who have been and may be test cases where the government expands its ability to wield the World War I-era law as if it is an Official Secrets Act.
Goldsmith suggested this policy will help prevent "diffuse sourcing," "which occurs when (in my description) 'journalists pick up small tidbits of possibly but not necessarily classified information from many people over an extended period, and tie the information together in ways that induce other officials to disclose more tidbits of information, perhaps through winks or nods, all of which, taken together, can amount to a significant disclosure of classified information.’"
In other words, it will make it even more impossible to do investigative journalism. It will drive journalists back to individuals appointed as official spokespeople to disseminate institutionally approved talking points for stories, which when published often function as pure unadulterated propaganda.
Jeffrey Anchukaitis, a spokesman for Clapper, told the New York Times, "former agency employees" could "opine on the content of news articles based on leaks about classified programs" if they warned audiences that the did not "know the validity of the reports." Of course, what if it is clear the employees know and everyone recognizes that they are just giving a disclaimer to protect against punishment or retaliation for speech?
The comments would still be useful, may actually help confirm the validity of reports and it would likely lead to accusations of violating the gag policy.
Anchukaitis said it is "nothing new." This is just making it explicit that "unauthorized disclosure does not equal declassification."
But it is not ODNI personnel who need to be reminded of this fact if leaks truly are as damaging and dangerous as officials want the public to believe.
Middle or lower-level government employees never leaked information to help launch a war on false pretenses in Iraq. It was leaks from Scooter Libby on "aluminum tubes" that led Vice President Dick Cheney, Secretary of State Colin Powell, National Security Advisor Condoleezza Rice, Secretary of Defense Donald Rumsfeld and Chairman of the Joint Chiefs of Staff Richard Myers to go on "Meet the Press," "Fox News Sunday," "Late Edition with Wolf Blitzer," "Face the Nation," and "This Week," in a coordinated effort to spread propaganda for a military invasion. (*Note: The author recognizes these officials were not intelligence officials. There’s a larger point being made.)
In effect, these new policies address a small threat of employees who would talk about what they do and see in their job while creating the environment for a greater threat—that it would encourage a climate where it is even easier for high-ranking officials to lie to the population in order to maintain or build support for their agendas.