The Obama Administration’s War on Information Leaks

Why is the government aggressively pursuing leakers? Because it can.

By: Shane Harris

“We’re out for scalps.” That’s what a senior Justice Department official told me when I asked what was behind the Obama administration’s unprecedented number of leak prosecutions. The “we” referred to federal prosecutors, but the official said the desire to see leakers punished extended to the White House, as well. The official, who also made it clear that reporters who talked to sources about classified information were putting themselves at risk of prosecution, asked not to be quoted by name.

Many journalists have attributed President Obama’s historic leaker hunt to some kind of personal disgust he has for the spilling of state secrets. Jonathan Alter wrote in his book The Promise: President Obama, Year One, “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.”

I’ve come to believe this interpretation, which I had shared, is way off.

Simply put, the government is pursuing leaks, and leakers, because it can. And I mean that it has the technological capabilities to track and monitor government employees’ phone calls and e-mails in a way it hasn’t in the past. And it can, with relative ease, figure out which reporters sources are talking to, and how.

Last year, when I was reporting a story about the Justice Department prosecutor who was in charge of two high-profile leaks cases, I had occasion to call his predecessor. I wanted to speak with him about a legal document he’d written in one of the cases; I had obtained a draft copy of it, which was never filed with the court.

I reached Steven Tyrrell, who’s now in private practice, at his law firm in Washington. He declined to talk to me about the case, and then said he wanted to quickly end our conversation. “I’ve done investigations like this, and I know that the longer I stay on phone with you, the more suspicious it looks,” he told me.

Investigators don’t need to record what was said on the phone call between a reporter and his source to know that they have a relationship. The phone log will tell them that. I appreciated Tyrrell’s candor, and that he has mastered a tenet of investigative reporting 101: When calling sources, don’t talk on the phone too long. Arrange a place to meet, then hang up.

Based on the deep reporting on and documents from leak cases, it’s clear the government has made the electronic records of reporter-to-source communications the evidentiary centerpiece of its cases. But as another ex-senior official at the Justice Department told me, investigators have better tools to track those communications now—and, more important, better access to them. This person, who was a political appointee, also asked not to be identified. But he said that in many of the cases the government has prosecuted, electronic evidence of a relationship between reporter and source was at the heart of the cases.

I wrote in my book, The Watchers, about how the National Security Agency created “mirror” databases of telecom network traffic, essentially taking the records from companies like AT&T and putting them into a form that could be mined by the intelligence agency.

Two former NSA officials say they believe that capability has allowed the government to track reporters and their sources. Bill Binney and Kirk Wiebe helped the agency build information-collection and analysis tools. They were, in effect, data miners. They quit the agency after the 9/11 attacks because they thought NSA was designing systems that weren’t very good at catching unknown terrorists, but that would be very good for spying on known Americans and rapidly finding connections among people based on their communications.

Ironically, one colleague who shared Binney and Wiebe’s concerns was Thomas Drake. He tried to sound an alarm through internal channels about NSA wasting billions of dollars on surveillance systems that didn’t sufficiently protect privacy. When he couldn’t get the response he wanted, Drake talked to a reporter at the Baltimore Sun. She won an award for investigative reporting in the public interest. Drake was indicted under the Espionage Act. How did investigators build their case? In large part, based on Drake’s e-mails and internal NSA computer logs.

The point here isn’t that investigators are more philosophically inclined to go after leakers now. It’s that they have more opportunity. Government employees are as wired and e-mail-bound as the rest of us. And no prosecutor is going to overlook hard evidence of what he believes is a crime; especially when the word from on high is to “collect scalps.”

Now, this theory has been questioned by recent events. Senator John McCain has accused the White House of leaking about two highly classified intelligence programs: the so-called “kill list” the President approves for drone strikes, and a cyber-war campaign against Iran. According to McCain and other like-minded lawmakers, the White House is the home of the leakers, not their pursuers. The President’s aides strategically revealed these huge covert operations just in time to bolster Obama’s image as a strong commander-in-chief.

This is nonsense. Put aside the fact that the President who oversaw the death of the world’s most notorious terrorist, and who has authorized drone strikes, needs no help burnishing his tough-guy cred. These stories, by their authors’ own accounts, have been in the works for months. The story about the Iran cyber-operation (code-named Olympic Games) by New York Times reporter David Sanger was released to coincide not with the election, but with the publication of his new book, Confront and Conceal. Indeed, the newspaper article is drawn directly from the book. (Sanger got rare, and arguably preferential, access to nearly every senior national security official in the administration. Clearly, his reporting wasn't based entirely on unauthorized leaks.)

Sanger had also been writing stories about the cyber operation for months and had gone right up to the line of pinning it on the United States, which is what his most recent story finally did. Sanger himself, speaking on the Diane Rehm Show last Friday, called McCain’s White House conspiracy theory “silly.”

Investigators are now trying to figure out who talked to Sanger and other reporters for their scoops. The first place they’ll start? E-mail and phone records. There’s always a known list of people who’ve been “read in” on a classified program. (In the intelligence business, it’s called the BIGOT list.) From there, it’s a simple matter to find a trail. Of course, if Sanger and his colleagues are as industrious as their reporting suggests, investigators may not find one.