Flushing Out Folks Who Take Big Leaks

“My background is in the Navy, and it is good to hang an admiral once in a while as an example to the others…We were hoping to get somebody and make people realize that there are consequences to this and it needed to stop.” Former National Intelligence Director, Dennis C. Blair.

It’s almost impossible to contain national secrets with millions of federal employees and hundreds of thousands of security-cleared federal contractors. Dennis Blair, who left the Obama administration back in 2010, took a hard look at the number of seriously sensitive security leaks in the four years preceding his appointment in 2009. Although 153 cases had been sent to the Department of Justice, he discovered, none had resulted in indictments. He visited Attorney General Eric Holder (above) to reprioritize national security cases, and the heavy system began to turn.

There have been two felony convictions since and while Private Bradley Manning has pleaded guilty to some of the charges assessed against his leak (noted below), he still faces more serious charges under his current court martial. “Though the Justice Department issued no explicit directive to pursue leakers more vigorously, according to [DOJ] officials, the climate in which leaks were judged changed markedly as a new team of national security officials joined the Obama administration and quickly ran head-on into what it saw as distressing lapses in controlling state secrets….‘There was a lot of pressure to use every possible investigative tool,’ said one senior former prosecutor who spoke on the condition of anonymity because he is not authorized to speak for the Justice Department.” New York Times, July 20^th.

After all, we’ve had the WikiLeaks scandal (including Army private Manning, who supplied sensitive diplomatic cables that were part of Julian Assange’s massive publication), a retired general (James Cartwright) who may have let it be known that the US had planted the Stuxnet virus into Iranian computer-controlled centrifuges and most recently, the rather devastating revelation by Defense contractor-employee, Edward Snowden, that detailed the government’s massive surveillance efforts of both its citizens and its allies.

A recent federal appellate court ruled that the First Amendment does not protect journalists from revealing their sources when they receive such sensitive “leaked” information, a case that will undoubtedly make its way to a very conservative U.S. Supreme Court. It was a victory for Holder’s new directive to stop the leaks, but it also raises some very serious constitutional questions.

While we really cannot run a government that cannot keep state secrets in a hostile world of hackers, extremists and out-and-out hostile enemy forces, we are also a nation of constitutional limits, protective statutes and powerful democratic underpinnings. If the world does not know when our government roguishly oversteps those clear limits, then perhaps we are no better than those totalitarian states that we constantly decry in the name of individual liberty, privacy and human rights. The issue, of course, is allowing one individual’s opinion of “right and wrong” – without checks and balances – to make a national security decision that could be of monumental importance. And if a security-cleared employee or contract feels strongly that those constitutional limits have been exceeded, exactly what alternatives exist for that individual to make a case?

Security clearance involves background checks, pledges under oath, signed confidentiality agreements and specific laws that provide very serious sanctions for those daring enough to disclose state secrets. Perhaps if someone is willing to defy this schema, risk massive prison time or lifetime exile, this is enough of a test as to what is necessary to be disclosed to make a democracy achieve balance… unless that disclosure was made under the direction and control of a hostile government or enemy force.

Perhaps not, but it is clear that there is a lot going on, even matters of which our own Congress is barely aware, that is proving to be deeply upsetting to ordinary citizens, who know now that their electronic correspondence is a running open book to federal authorities. Kind of makes you wonder what the Sixth Amendment (the ban on unreasonable and unwarranted searches and seizures) and any notion of personal privacy are all about. But the leakage that was/is taking place without apparent consequences was equally disturbing.

“‘Somebody finally said this has got to stop,’ said John D. Negroponte, a former diplomat and director of national intelligence under George W. Bush. ‘Maybe if there are more prosecutions, it will.’… But critics argue that the Cartwright case, and now the appeals court ruling, show how the antileak campaign has gone too far, producing a chilling effect on news gathering without deterring leakers. Mr. Snowden has said he was inspired by the deeds of Pfc. Bradley Manning, who is facing a court-martial after divulging the diplomatic cables to WikiLeaks.

“‘I think it has gotten away from them,’ said Morton H. Halperin, who served in national security or diplomatic positions in three previous administrations. ‘If the president doesn’t fix this, I think his claim that he understands the importance of balancing the First Amendment against claims of national security will lack any credibility.’” New York Times. There will always be martyrs, people willing to accept horrific personal consequences to alter history and/or, at least in their minds, preserve democracy. Laws, prosecutions and decimation of their entire lives are insufficient deterrents. What is fair and just for a government to pursue, and at what point does the government itself cross the line with too many barriers to the disclosure of its own unjust acts?

I’m Peter Dekom, and in a world with too many people with security clearance, it is equally clear that no governmental plan is going to succeed enough to change a process that has become an American, if not global, journalistic tradition (that was born here in the United States).