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Stopping Leaks---A Good First Step
By: Joe Mazzafro

When we left off in June we were discussing the implications of the New York Times’ [not so] Secret Kill List article of 29 May about how the President singularly decides who will be targeted for termination by CIA launched drone strikes and how he alone can give the execute order.  What I offered for your consideration was a discussion about whether these drone strikes could be justified under generally accepted Laws of War and even more importantly whether or not they were effective in making the United States safer.  After almost a month long barrage of media reporting only staunched by the Supreme Court Decision upholding the Affordable Care Act on June 28th, I now understand the real interest in this story is the debate about whether it was leaked to effect presidential electoral politics or not.  Wow did I miss that! 

Since I have no facts one way or the other I will steer clear of offering my opinions about how this Kill List story was developed, but you don’t need me to tell you stopping national security leaks came to dominate national news stories in June when the New York Times subsequently ran a story on cyberweapons linking the U.S. to the development of the Stuxnet malware used to impede the operation of Iranian nuclear enrichment centrifuges.  Then a June 14 front page above the fold Washington Post headline announcing “US EXPANDS SECRET INTELLIGENCE OPERATIONS IN AFRICA” pushed official Washington from the White House to the Capitol to Liberty Crossing into expressing outrage about the leaking of classified information and proposing policies and legislation to punish current leakers with the goal of deterring future unauthorized disclosures of classified material. 

Moving proactively to firewall the Intelligence Community (IC) from being singled out as the source of these damaging disclosures, Director of National Intelligence (DNI) James Clapper announced two significant policy actions on June 25 that will in his words “. . . reinforce our professional values by sending a strong message that intelligence personnel always have, and always will, hold ourselves to the highest standard of professionalism.”

·         A specific question related to the unauthorized disclosure of classified information will be added to the counterintelligence (CI) polygraph administered to all IC members with high security clearances

·         The IC Inspector General will conduct independent investigations of selected unauthorized disclosure cases when prosecution is declined by the Department of Justice (DOJ)

In a challenge to the rest of the government with access to sensitive classified information the DNI said “it is my sincere hope that others across the government will follow our [the IC’s] lead.” (http://www.dni.gov/press_releases/Director%20Clapper%20Announces%20Steps%20to%20Deter%20and%20Detect%20Unauthorized%20Disclosures.pdf)

House Permanent Select Committee on Intelligence (HPSCI) Chairman Mike Rogers immediately called these two DNI policies “a good first step” for dealing with the leaking of classified information while Congress pursues drafting legislative language  for the FY 13 Intelligence Authorization Bill for cracking down on the disclosure of classified information to reporters  (http://intelligence.house.gov/press-release/statement-chairman-rogers-director-clapper%E2%80%99s-announcement-steps-deter-and-detect-leaks).

I support and applaud DNI Clapper’s forthright position that if leaks of classified information are coming from the IC, perpetrators will be searched out and when found held accountable through administrative means when prosecution is not an appropriate or viable option.  As the DNI recommends, it is prudent that such a self policing/self regulating approach be adopted by other department and agency heads across the national security landscape of the federal government.  Conversely, I am concerned about what legislative remedies Chairman Rogers would add to the DNI’s “good first step” since there is a delicate balance in the information age between protecting secrets for security reasons and sharing secrets to create decision superiority for officials at all levels of government.  Speaking at the Center for Strategic and International Studies (CSIS) event during the last week of June, Director of the National Counterterrorism Center (NCTC) Matt Olsen observed that the challenge for the federal government is to find a way to prosecute the leaks and prevent future ones but also to “guard against a reaction that would limit [authorized mission driven] information sharing. 

I’ve got to believe, however, that if preventing the disclosure of classified information to the press was easy there wouldn’t be many if any leaks for us to worry about.  As a matter of principal there will always be those in a democracy like ours that will contend with some justification that what the government keeps secret from its citizens should be severely limited.  Others will question when does reporting potentially inappropriate or illegal government activities that are classified morph from “whistle blowing” to “leaking?”  What are the chances people will be wrongly suspected for leaking media reporting about classified matters that are actually sourced by foreign security services or developed by investigative journalism from a myriad of information now available in the public domain? Then there is the authorized leak to test reaction to a particular course of action or to mislead an adversary.  What is the right balance between “need to know” and “need to share?”  Can closed session testimony to Congress be construed as unauthorized disclosure of classified information?  Finally there is the muddled case law about when the media can be held to task for publishing classified information or if it can be forced to reveal its sources for classified information.

Each of these situations could be expanded into lengthy dissertations as to why (in my view) the Congress going beyond the DNI’s use of polygraph questions and administrative investigations to deter leaking to the press would result in law that would be both inconsistent and ineffective.  While it is emotionally gratifying to demand leakers be prosecuted and sentenced to prison, proof beyond a reasonable doubt in these types of cases has been historically elusive.  Ergo it is more beneficial for national security to focus on remedies that actually stop leaks rather than seeking punishment for the leakers.

That’s what I think; what do you think?


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