The Obama Administration’s War on Information Leaks

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

“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.

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