Back in 2012, we wrote about how Senator Dianne Feinstein appeared to be a lot more focused on who leaked information about the US involvement in Stuxnet, rather than the question of whether or not the US should have been involved in Stuxnet in the first place. Soon after, Feinstein pushed for astoundingly broad “anti-leak” rules that would effectively make it illegal to blow the whistle. It automatically treated any leak as bad, even if such a leak was clearly to blow the whistle on illegal behavior. Thankfully, Senator Wyden stepped in and helped kill that effort, noting the serious consequences:
“I think Congress should be extremely skeptical of any anti-leaks bills that threaten to encroach upon the freedom of the press, or that would reduce access to information that the public has a right to know,” Wyden said in a floor statement publicly announcing his hold. “Without transparent and informed public debate on foreign policy and national security topics, American voters would be ill-equipped to elect the policymakers who make important decisions in these areas.”
This resulted in the anti-leak provision being withdrawn. However, it appears that, in late March, Director of National Intelligence, James Clapper, more or less put in place the same rules issuing an intelligence community directive that bars all unauthorized contact with the media, no matter what the subject or the issue. You can read the directive here. While some may argue that of course no member of the intelligence community should be able to communicate with a member of the media without authorization, they are ignoring a few key points.
First, it makes no distinction at all between classified and non-classified information. That’s a big deal. It’s reasonable (to a certain extent) to suggest that intelligence employees should not be discussing classified information with the press, but when you get into unclassified material, it gets fairly ridiculous pretty quickly. Lots of members of the intelligence community will often help reporters out, providing explanations and details on background, and that’s the sort of thing the intelligence community should support given that they frequently complain that the press gets important details wrong.
Furthermore, as Wyden himself pointed out in the debate about Feinstein’s original attempt:
I am concerned that they will lead to less-informed public debate about national security issues, and also undermine the due process rights of intelligence agency employees, without actually enhancing national security.
But, of course, it gets even worse as you dig into the details. In the directive, “media” is defined incredibly broadly:
For purpose of this Directive, media is any person, organization, or entity (other than Federal, State, local, tribal and territorial governments):
a. primarily engaged in the collection production, or dissemination to the public of information in any form, which includes print, broadcast, film and Internet; or
b. otherwise engaged in the collection, production, or dissemination to the public of information in any ofrm related to topics of national security, which includes print, broadcast, film and Internet.
Perhaps I’m misreading it, but section “b” especially would appear to suggest that if you ever use your Facebook/Twitter/etc. account to share (i.e., “disseminate”) any info concerning the “topic of national security,” you’re a part of the media. Did you share a Guardian story about Ed Snowden on Facebook? Or maybe comment about the Heartbleed bug? Congrats, you’re now considered “the media” under this directive — meaning that no one who works for the intelligence community is allowed to interact with you at all, except with authorization. For intelligence community employees, this effectively rules out their ability to do things like go to their neighbors’ barbecue this summer if that neighbor has ever shared any information concerning an issue that might be under the big umbrella of national security.
And, while it’s unlikely that the FBI is suddenly going to be tracking down a lowly NSA analyst for sharing small talk with his or her neighbor, if that same analyst is suddenly under investigation for other issues, you’d better believe that such interactions will be brought under scrutiny. We’ve seen it before. An investigation into Thomas Drake’s whistleblowing turned up nothing, so the DOJ went after him because he had a classified meeting agenda on a computer (even though it was declassified anyway soon after) and threatened him with 35 years in jail. John Kiriakou blew the whistle on CIA torture, but was eventually charged with helping a reporter speak to another former CIA agent in a manner that revealed nothing that would have an impact on national security. In other words, when the DOJ wants to bring an intelligence community employee down, they’ll find anything to do so. And this directive gives them another tool, while at the same time making sure to stifle the public discourse on what the intelligence community is doing.