President Donald Trump speaks during a news conference in the East Room of the White House in Washington, Thursday, Feb. 16, 2017. (AP/Pablo Martinez Monsivais)
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During a screwball press conference, President Donald Trump indicated he contacted the Justice Department to look into “criminal leaks.” He said his administration has got to stop the leaks and suggested there would be penalties for those who disclosed classified information without authorization.
The remarks were in response to disclosures officials made to the press about former National Security Adviser Michael Flynn, and they suggest Trump’s administration may be more vindictive on leaks than his predecessor, President Barack Obama.
“The kind of vengeful tone is really scary, especially given the precedent that Obama made with going after the so-called leakers—who more often than not were whistleblowers—with the Espionage Act,” declared Jesselyn Radack, a whistleblower attorney at Expose Facts who has represented multiple national security whistleblowers, including Edward Snowden and Thomas Drake. “It’s scary to think what Trump might mean by that.”
John Kiriakou, a former CIA officer who blew the whistle on President George W. Bush’s policy of waterboarding terrorism detainees, maintained criticizing “leaks” when “they’re actually whistleblowing revelations” is a “disservice to the American people. Donald Trump should be embracing those who bring to light this evidence, not threatening them.”
Prior to the press conference, Trump took to Twitter and exclaimed, “Leaking, and even illegal classified leaking, has been a big problem in Washington for years.” He suggested the New York Times and other media organizations must apologize for, in effect, committing acts of journalism.
Leaking, and even illegal classified leaking, has been a big problem in Washington for years. Failing @nytimes (and others) must apologize!
— Donald J. Trump (@realDonaldTrump) February 16, 2017
“The spotlight has finally been put on the low-life leakers! They will be caught!” Trump added.
While the presidential bombast is a new development, President Obama’s administration waged an unprecedented war on leaks. In fact, it is possible Obama empathizes with Trump’s frustration over contents of phone calls with world leaders leaking to the press.
According to Jonathan Alter’s book, “The Promise: President Obama, Year One,” Obama had “one pet peeve that could make him lose his cool”:
It was a common source of anger for presidents: leaks. Complaints about loose lips became a constant theme of Obama’s early presidency. At his first Cabinet meeting he made a point of saying that he didn’t want to see his Cabinet “litigating” policy through the New York Times and the Washington Post. At a Blair House retreat for the Cabinet and senior staff at the end of July, he devoted about a quarter of his comments to urging his people to keeping their disagreements within the family: “We should be having these debates on the inside, not the outside.” And during his twenty hours of deliberations over Afghanistan in the fall, he returned repeatedly to the theme. Naturally, in Washington, nearly every time he got upset about leaks it leaked.
For all his claims that he didn’t want yes-men around him, no one on his staff was brave enough to tell the president that obsessing over leaks was a colossal waste of time. (Aides should have recognized that the age-old problem in Washington isn’t managing leaks, but managing the president’s fury over them.) But it wouldn’t have mattered: leaks offended Obama’s sense of discipline and reminded him of everything he disliked about the capital. He was fearsome on the subject, which seemed to bring out his controlling nature to an even greater degree than usual…
One senior Justice Department official told the Washingtonian while Obama was president, “We’re out for scalps,” when referring to leak prosecutions. The official even went so far as to suggest reporters, who talk to sources about classified information, were “putting themselves at risk of prosecution.”
So it is that the Obama administration turned over to the Trump administration a system of secrecy that not only has the great capacity to conceal military and national security programs and policies, which abuse power, but also is capable of destroying the lives of anyone within government who goes against official policy and makes unauthorized disclosures.
The Obama administration prosecuted more leakers—or whistleblowers—under the Espionage Act than all previous presidential administrations combined. The administration also infringed upon the press freedom of journalists involved in publishing stories based upon leaks.
To respond to U.S. Army whistleblower Chelsea Manning’s disclosures to WikiLeaks, the Obama administration adopted an “insider threat” program that Marisa Taylor and Jonathan Landay of McClatchy Newspapers detailed as an “unprecedented initiative” that extended “beyond the U.S. national security bureaucracies to most federal departments and agencies nationwide, including the Peace Corps, the Social Security Administration, and the Education and Agriculture departments. It emphasizes leaks of classified material but catchall definitions of ‘insider threat’ give agencies latitude to pursue and penalize a range of other conduct.”
“Millions of federal employees and contractors,” Taylor and Landay reported, “must watch for ‘high-risk persons or behaviors’ among co-workers and could face penalties, including criminal charges, for failing to report them.” And, “Leaks to the media are equated with espionage.” One Defense Department strategy document from June 1, 2012, declared, “Leaking is tantamount to aiding the enemies of the United States.”
“Experts and current and former officials” that Taylor and Landay spoke to for the story suggested this program would likely “make it easier for the government to stifle the flow of unclassified and potentially vital information to the public, while creating toxic work environments poisoned by unfounded suspicions and spurious investigations of loyal Americans.”
Work environments under Trump have already been reportedly toxic as a result of gag orders that run afoul of the Whistleblower Protection Enhancement Act imposed on employees at agencies like the Department of Health and Human Services (HHS) and Environmental Protection Agency (EPA).
The potential for a vengeful crackdown on alleged leakers is even more likely given the fact that Senator Jeff Sessions is now the country’s Attorney General and heads the Justice Department, which holds much of the power to aggressively pursue leak investigations.
Back in 2012, there was hysteria around leaks from the Obama administration on the kill list, the Stuxnet virus, which was deployed in a cyber attack on Iran, and a CIA underwear bomb plot sting operation in Yemen. Congress held hearings and questioned Attorney General Eric Holder about the national security leaks.
Sessions was livid and named all the current and former Obama administration officials quoted in the New York Times.
“These were all talking to the New York Times. Somebody provided information that shouldn’t have been provided. These are some of the closest people you have in government to the president of the United States so this is a dangerous thing,” Sessions added.
He was aghast that there were senior officials at the Justice Department talking to the Times, and he told Holder that individuals responsible needed to “be interviewed in an aggressive independent way, not as a friendly fellow Department of Justice employee but as someone that could be subject to a criminal charge.”
“I take this as a very serious matter, the question of the leaks, how important they are. I believe lives have been placed at risk,” Sessions added. “I’ve raised in the Armed Services private or closed hearings dealt with these matters in months past. It’s been a pattern now.”
Sessions contended the government had not seen a “greater series of leaks,” perhaps, referring to leaks from NSA whistleblower Edward Snowden and Manning. “I believe it’s time to bring it to a conclusion.”
“I believe an aggressive investigation is required, and I believe from now on members of this administration, previous administrations, subsequent administrations, should fully understand they will be held accountable if they violate their oath to protect the legitimate secrets of the United States,” Sessions concluded.
What are “legitimate secrets” to President Donald Trump and Attorney General Jeff Sessions?
“General Flynn very clearly violated the Logan Act of 1799, which forbids private American citizens from conducting foreign policy. That’s a felony,” Kiriakou said. “So, what we should have seen was Donald Trump apologizing to the American people and firing Flynn very publicly. Instead, we saw two weeks of hemming and hawing, and although Flynn resigned, Trump came out with a statement threatening the whistleblowers.”
“The fault is not of the intelligence services leaking information. The fault is of General Flynn violating the law and Donald Trump not running a tight enough ship, where his people think twice about committing felonies,” Kiriakou added.
Much has been made about whether the leakers are “Obama people” or security officials, who want to possibly bring down Trump. Speculation aside, none of that really matters when officials make disclosures.
Kathleen McClellan, a whistleblower advocate and national security & human rights lawyer at Expose Facts, said the substance of disclosures on Flynn had public interest value regardless of the motivation.
“The idea that the intelligence community can leak to somehow influence the White House—it’s a new dynamic,” McClellan admitted. “They’re usually on the same side. It’s the executive branch.” Yet, this is what happens “when you allow the intelligence community to gain so much power and do so much pervasive surveillance, and they have surveillance on everybody, including Congress.”
Nevertheless, the key question is always, is the disclosure in the public interest?
As Kiriakou suggested, Trump has “surrounded himself with people, who don’t know how to govern.” They were caught trying to conceal questionable, if not illegal, acts from the public.
“There’s a legal definition of whistleblowing,” Kiriakou said. “It’s bringing to light any evidence of waste, fraud, abuse, illegality, or threats to the public health or public safety. And, if the Trump administration is protecting the public health and public safety and is working against waste, fraud, and abuse, then they ought to be on the side of the whistleblower, something that the Obama administration was not.”
Republican chairs of the House Oversight and Government Reform Committee and House Judiciary Committee, Jason Chaffetz and Bob Goodlatte, demanded the Justice Department’s inspector general office investigate whether classified information was “mishandled.”
There will be a round of hearings that will bear similarity to the hearings that occurred under Obama in 2012. Anti-leaks proposals for legislation will likely be offered by senators and representatives too.
Back when Obama leaks roiled Capitol Hill, a bipartisan group of senators pushed the idea that employees should surrender pension benefits for “unauthorized disclosures” and prohibitions against former employees, who want to become “consultants” or enter into contracts with media organizations. Democratic Senator Ron Wyden of Oregon was one of the few senators to stand up and put a hold on these anti-leaks proposals that forced reconsideration.
Obama had a policy, as former director of national intelligence Dennis Blair said, to make an example out of someone from the outset. “We were hoping to get somebody and make people realize that there are consequences to this and it needed to stop.”
In his first year as president, Trump may follow in Obama’s footsteps in an even harsher and more unforgiving manner to make sure no one defies his authority by bringing openness to his administration.
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