California Senator Dianne Feinstein is not happy about the leaks. “The torrent of leaks,” as she calls them, inked onto the pages of the New York Times and the Baltimore Sun; leaks of information that once exposed to the light of day can’t be swept back into hiding. Feinstein, as chairman of the US Senate Intelligence Committee, is set to lead the revolution against what she calls “the culture of leaks” sustained by a security-threatening status quo that’s all too tolerant of whistleblowers and whiners.
Her solution lies in a measure amended to the Intelligence Authorisation Act for the fiscal year 2013.
The proposal, which has been confirmed as “casting a distinct chill over press coverage of national security issues” by New York Times reporter, Scott Shane, cites the proliferation of leaks as evidence that intelligence agencies must institute an “insider threat programme” that will route out potential leakers.
Furthermore, the proposed bill would threaten harsh punishments to all employees of government intelligence agencies, including being stripped of security clearance and loss of pension if found to have “wrongfully” disclosed information. Finally, the provision would place a gag order on former government officials from publically discussing matters for up to one year after leaving the government employment.
Criminalisation of transparency
|Inside Story Americas – Punishing the whistleblower?|
The provision is something of a resurrection of a similar attempt made in 2011- an effort that was staved off by the Director of National Intelligence, James R Clapper, who cautioned such a provision would deny suspected individuals of their pensions without due process, and most likely not help deter unauthorised leaks. These same concerns were iterated this year by the lone dissenting Committee vote on the provision cast by Senator Ron Wyden from Oregon.
Kate Martin, from the Centre for National Security Studies writes, “Indeed the provision seems drafted in order to chill public discussion of information that is not classified.”
Given that we have already seen a frightening increase in the criminalisation of transparency, with whistleblowers facing such horrors as the loss of career and income, massive legal fees – as well as decades in prison – it’s safe to say that a deep chill is already well settled, and this latest effort is merely bent on killing off any survivors of the frost who might be inclined to gasp out a last cry for democracy.
Let us consider how very intolerant the government has been of whistleblowers under the Obama administration. Obama has criminally prosecuted six whistleblowers that have leaked information to the press under the Espionage Act. As has been pointed out elsewhere this number constitutes more than all other administrations combined.
Furthermore, in 2010 the government augmented the volume of classified documents by a whopping 40 per cent over the previous year and that number is expected to have increased since. The level of non-transparency under the Obama administration has led former head of the US classification process, J William Leonard, to call the system “dysfunctional”.
Then reflect on the “culture” the provision is committed to combat. While Feinstein declares she wants to attack leaks to the press, her bill would undoubtedly also target whistleblowers who go through the official channels to report government malfeasance or misconduct.
Government Accountability Project (GAP) boasts that 2012 has seen a record number of whistleblowers reporting wrongdoings to the office of Special Council, the federal agency tasked with investigating whistleblowers claims.
Thomas Drake’s case
| Listening Post – Blowing the whistle on
But be sure: this claim does not mean the government promotes this kind of reporting. The Merit Systems Protection Board found that in 2010, “Approximately one-third of the individuals who felt they had been identified as a source of a report of wrongdoing also perceived either threats or acts of reprisal, or both.”
Take the well-known case of the now exonerated Thomas Drake, a former employee of the National Security Agency. After having prudently reported what he saw as a hugely wasteful product that risked violating the privacy of American citizens to his superiors at NSA and other official channels, he became a pariah in his own workplace: “He was increasingly isolated, singled-out, transferred away from projects and marginalised,” writes the GAP’s website.
After getting nowhere with his first efforts to bring attention to an egregious situation, he then took his concerns to the press, disclosing unclassified information. Nevertheless, he was indicted for “improper retention of classified information” and charged with ten felony counts for which he faced what federal prosecutors hoped would be “the rest of his life in prison”.
Drake had the good fortune to be taken before a court of law and represented by excellent counsel, which ultimately led the Department of Justice to drop the 10-count felony charge and the judge to call the DOJ’s handling of the case against him “unconscionable“.
The benefit of a trial is a process Feinstein’s measure (still pending approval) would very well do away with, instead installing a system wherein an intelligence agency head would have “unrestrained discretion to suppress speech critical of the intelligence community”, as written by the Project on Government Oversight, an independent good government watchdog.
Then again, perhaps we should ask Breanna Manning (the name reportedly preferred by the whistleblower commonly known as Bradley Manning) awaits her trial to begin at Fort Meade. Manning is likely still recovering from the draconian prison conditions to which she was subjected, including being held in solitary confinement, for nearly nine months. She might argue that Senator Feinstein’s bill isn’t really necessary to deny US citizens one of their primary rights, the right of due process.
Charlotte Silver is a journalist based in San Francisco and the West Bank.
Follow her on Twitter: @CharEsilver