Published in partnership with Shadowproof.
Newly confirmed CIA director Mike Pompeo informed United States senators he would “aggressively seek to ensure we have the most effective programs for identifying insider threats.” It was a pledge to pursue the same anti-leaks policies that discourage whistleblowing that President Barack Obama’s administration pursued.
Since President Donald Trump has expressed his fervent support for torture, which is against the law, and a draft executive order has circulated suggesting the Trump administration will restore the CIA’s rendition, detention, and interrogation program, the prospect of Pompeo intensifying efforts to clampdown on leaks is all the more concerning.
“Mishandling of classified information is a serious matter given the potential implications for U.S. national security,” Pompeo declared.
“Individuals determined to have mishandled classified information should be treated in accordance with relevant policies and the law, accounting for relevant factors including intent and harm to U.S. interests. Punishment may vary depending on the circumstances of each case.”
Pompeo added, “Persons who are unable or unwilling to safeguard classified information successfully should not hold a security clearance. Using discretion, the Attorney General may seek prosecution of cases for mishandling of classified information. It is clearly the case that the accountability associated with mishandling of classified information should depend on a number of factors including the scope, duration, [and] intentionality of the mishandling, but all cases of mishandling of classified information must be addressed and actions must be taken to prevent their recurrence.”
He called for “more aggressively implementing the Intelligence Community Information Technology Enterprise,” which will “enable the electronic implementation of the need-to-know principle.” He also mentioned the CIA’s own “insider threat program.”
Although he mentioned NSA whistleblower Edward Snowden (“the Snowden incident”), he said nothing about how he would ensure there were “proper channels” for whistleblowers to raise concerns about policies and programs they might find to be unethical or illegal. He said nothing about the chilling effect that insider threat programs can have on employees of good conscience, who may decide to stay silent in order to protect their livelihood from being destroyed.
None of the senators on the Senate intelligence committee bothered to ask him about whistleblowing either.
When George W. Bush was president, CIA officer John Kiriakou was the first member of the agency to publicly confirm that waterboarding was official U.S. policy. He believed the CIA was not authorized under the law to torture Abu Zubaydah. In response, Kiriakou was targeted by the Justice Department and pled guilty to confirming the name of an agent involved in the CIA’s rendition, detention, and interrogation program to a reporter in violation of the Intelligence Identities Protection Act.
Kiriakou was sentenced to 30 months in prison in 2013. He was jailed at a federal correctional facility in Loretto, Pennsylvania, over one hundred miles away from his wife and five children. He had to mortgage his house, and his livelihood was utterly destroyed.
“There’s literally nowhere that a CIA whistleblower can go other than the press, and that invites an Espionage Act charge,” Kiriakou told Shadowproof. “If you want to blow the whistle, you have to blow the whistle to the Office Of Inspector General or the Office of General Counsel.”
If the Inspector General is not read into a program or policy, then an employee may be guilty of violating the “need-to-know principle.” And, “With these new rules, as they sound to me, the Inspector General’s Office would be compelled to report the fact that an employee had gone to that office to report wrongdoing.”
Kiriakou also found it naive of Pompeo to suggest the CIA would properly consider intent. When he was prosecuted, Judge Leonie Brinkema said intent was irrelevant. Either he leaked the information or not, and if he leaked the information, he deserved prosecution. The Justice Department took full advantage of that position.
Jeffrey Sterling, an African American CIA officer, was imprisoned at a federal correctional facility in Littleton, Colorado, about 900 miles away from his wife and family in St. Louis. He stood up to the CIA and brought a racial discrimination lawsuit against the agency in 2002. It was dismissed by the Supreme Court in 2005 after the government invoked the “state secrets privilege.”
He then informed the Senate intelligence committee he had knowledge of waste, fraud, abuse, and illegality related to Operation Merlin, a botched operation which involved passing on flawed nuclear blueprints to Iran officials. Instead of investigating his claims, he became the target of a leak prosecution.
Sterling was convicted in 2015 by a jury in the Eastern District of Virginia through largely circumstantial evidence. It was never proven that he leaked any details about Operation Merlin to New York Times reporter James Risen. Nevertheless, he was convicted of multiple offenses under the Espionage Act and sentenced to 42 months in prison, and his life was utterly destroyed.
In recent years, intelligence and military agencies have tested systems of total surveillance for monitoring employees. The systems can be used to create “staff profiles” or dossiers on employees with security clearances. Certain behaviors may trigger special monitoring, even if they have never taken any information with the intent to make a disclosure.
The Office of the Director for National Intelligence (ODNI) oversees the National Insider Threat Task Force. An official from the Task Force conducted a presentation, where National Security Agency whistleblower Thomas Drake, who revealed fraud, waste, and abuse, was listed along with Nidal Hasan, Aaron Alexis, and Robert Hanssen. (Hasan and Alexis murdered people, and Hanssen was a Soviet spy.)
As Kenneth Lipp reported, Patricia Larsen of ODNI referred to Pentagon Papers whistleblower Daniel Ellsberg as a criminal. She said Drake and Edward Snowden had been “self-radicalized” while the others in the “rogues gallery” were recruited by foreign governments. Each one of them had “strong egotistical streaks,” which led them to do harm to the country.
Pompeo indicated his eagerness to work with the ODNI on further developing “insider threat” detection. In 2014, Senators Chuck Grassley and Ron Wyden took issue with the ODNI’s approach [PDF].
“Any monitoring of employees’ ‘electronic behavior on the job as well as off the job’ needs to include safeguards to prevent the chilling of legitimate whistleblower communications and protect the confidentiality of any legally privileged information,” the senators maintained. “Procedural safeguards to prevent the targeting of whistleblowers for extra scrutiny as well as minimization requirements to avoid collecting protected communications are some examples of the sorts of safeguards that should be developed.”
“If captured inadvertently, protected disclosures certainly should never be routed back to an official involved in any alleged wrongdoing reported by the whistleblower.”
According to Kiriakou, there are two key issues. CIA leadership has “historically ignored the Office of General Counsel,” and in the case of the torture program, the Inspector General was “cut out” and had no idea what was going on with the program.
“The Office of the General Counsel was implicated in the torture program. It was the Office of the General Counsel that sought the approval of the Office of Legal Counsel at the Justice Department to get the torture program approved,” Kiriakou said.
That leaves Senate and House oversight committees, but they were “briefed on the torture program and they acquiesced to the torture program.”
“In my case, the Justice Department said they did not want to pursue after investigating for a year, and the CIA went back and insisted, they demanded I be charged. That’s going to be an ongoing problem.
“If the CIA wants to stifle internal criticism or whistleblowing, it can demand a criminal case of the Justice Department, and the Justice Department will likely acquiesce.”
The Justice Department is highly likely to pursue leak prosecutions or prosecutions of whistleblowers if the Attorney General is Jeff Sessions. He believes, no matter what, an employee who makes an unauthorized disclosure, especially to a journalist, is committing a crime. “The information that the leaker has provided to a reporter is a crime that’s supposed to be enforced by the Department of Justice.”
Sessions also has supported the waterboarding of CIA detainees and does not believe it is a technique that should be off the table. “This would be unwise advice to the enemy we face,” he once said.
Watch the CIA Director Mike Pompeo’s senate confirmation hearing: