The Obama administration, in its war on whistleblowers, just lost a major battle. Major in its venue — the Supreme Court — and major in its implications for future whistleblower cases.
The Court’s decision in Department of Homeland Security v. Robert MacLean curtails the government’s manipulation of pseudo-classified information to punish whistleblowers, and strengthens the Whistleblower Protection Act (WPA).
In July 2003, TSA alerted all marshals of a possible hijacking plot. Soon after, TSA sent an unclassified, open-air text message to marshals’ cell phones canceling several months of missions to save on hotel costs. Fearing such cancellations in the midst of a hijacking alert created a danger to the flying public, veteran Air Marshal Robert MacLean tried to get TSA to change its decision.
After hitting a dead end, MacLean spoke anonymously to MSNBC, who published a critical story. Only 24 hours later, and after 11 members of Congress voiced concern, TSA reversed itself, putting marshals back on the flights. A year later, MacLean appeared on TV in disguise to criticize agency policies he felt made it easier for passengers to recognize undercover marshals. The TSA recognized MacLean’s voice and discovered he had also released the unclassified 2003 text message. He was fired in April 2006.
MacLean discovered that months after firing him, TSA had retroactively classified as “security sensitive information” (SSI) the unclassified text message he had leaked. SSI is a designation created by TSA via administrative memo, and had no basis in law. TSA decided nonetheless that leaking a retroactively SSI-classified document was cause enough to fire a federal worker. MacLean fought back.
In 2013, after a long series of legal wrangles, a United States Court of Appeals decided that MacLean was entitled to his old marshal job back under the Whistleblower Protection Act of 1989. The act generally limits its protections to “disclosures not specifically prohibited by law.” The court said SSI information was not really “classified” at all, and thus MacLean’s disclosure was not a violation of law.
The Department of Justice challenged the decision in front of the Supreme Court. The Supremes agreed on January 21 with the lower court’s decision, ruling in favor of MacLean and against the government.
Significance of the Decision
The Court made clear TSA’s self-created classification, SSI, did not have the power of law. MacLean’s disclosure of SSI material thus did not violate any actual laws making disclosure of properly classified material a crime. There were no grounds to have fired him.
While by law the U.S. government recognizes only three basic levels of classification (confidential, secret, top secret), since 9/11 government agencies on their own have created pseudo categories of secrecy like SSI, hybrids that casually seek to incorporate the full weight of formal law. There are currently 107 designations just for “sensitive” information alone, none of which receive any review outside of the agency that created them. Allowing any part of the government to declare this or that classified under their own rules means everything can be classified, and every statement by every official potentially actionable, with no external oversight or redress possible.
The Court also shot down government claims that a law allowing TSA to “prescribe regulations” means the agency can otherwise control disclosures with the force of law. The statute, the Court said, “does not [itself] prohibit anything; instead, it authorizes” the TSA to make choices. No one prohibited MacLean from disclosing an at-the-time unclassified text, nor would it be reasonable to assume something unclassified couldn’t be disclosed.
The Court did agree with TSA that actions such as MacLean’s can have legitimate national security repercussions. Dealing with that issue “must be addressed by Congress or the President, rather than by this Court,” and, by extension, not by TSA acting on its own.
Regulation is Not Law
And as if the point was not clear enough, the Supreme Court stated “interpreting the word ‘law’ to include rules and regulations could defeat the purpose of the whistleblower statute. That interpretation would allow an agency to insulate itself… simply by promulgating a regulation that ‘specifically prohibited’ all whistleblowing.”
The Supreme Court’s decision answers a key question regarding the scope of exemptions to federal whistleblower protection law. In a blow to the self-proclaimed “most transparent administration ever,” the Court ruled against the use of pseudo-classification as a tool to hide from the public embarrassing or even criminal information. Had the Court held otherwise, no act of whistleblowing could be considered protected. All the government would have had to do to stop an act by a conscientious employee would be to retroactively slap a self-made category of secrecy on whatever was disclosed, and wash its hands of the miscreant.
Attorney Tom Devine,of the Government Accountability Project, was part of the team that represented MacLean. “This victory,” Devine said, “means that the cornerstone of whistleblower rights has survived — the supremacy of statutory rights passed by Congress over agency secrecy rules. If Mr. MacLean had lost, agencies could cancel those rights through internal regulations, and the Whistleblower Protection Act would have been an unenforceable honor system. In the aftermath, the WPA is alive, well and stronger than ever.”
What About that Retroactive Classification?
Also a part of MacLean’s firing from TSA was the issue of the agency retroactively marking the information he was punished for leaking as SSI, some time after it was sent out to all air marshals in an unclassified open text. The Court let stand this government power to retroactively classify information.
According to MacLean attorney Tom Devine, retroactively pseudo-classifying information as SSI was not an issue in MacLean’s appeal, and should not inhibit all whistleblowing. Following MacLean’s firing, Executive Order 13556 in 2010 made clear categories such as SSI alone does not affect disclosure laws such as the Whistleblower Protection Act. In addition, the “anti-gag” provision of the later Whistleblower Protection Enhancement Act already outlawed liability for disclosures involving “unmarked but classified” information. That law’s definitions require information to be specifically designated as classified, not just to deserve secret status.
That’s the bigger picture. On a more personal level, what’s next for MacLean?
“I’m a sheepdog, I fight until I’m unconscious or dead,” said MacLean. “The public paid me considerably more than most federal employees. I had the power to arrest people. I was extensively trained and gave an oath that I would risk my life engaging in firefights inside crowded missiles.”
“I want to resume serving in law enforcement,” said MacLean. “If my country wants me back serving as an air marshal, I will serve to the best of my ability and with honor.”
Copyright © 2017. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Cross-posted with TomDispatch.com
What do words mean in a post-9/11 world? Apart from the now clichéd Orwellian twists that turn brutal torture into mere enhanced interrogation, the devil is in the details. Robert MacLean is a former air marshal fired for an act of whistleblowing. He has continued to fight over seven long years for what once would have passed as simple justice: getting his job back. His is an all-too-twenty-first-century story of the extraordinary lengths to which the U.S. government is willing to go to thwart whistleblowers.
First, the government retroactively classified a previously unclassified text message to justify firing MacLean. Then it invoked arcane civil service procedures, including an “interlocutory appeal” to thwart him and, in the process, enjoyed the approval of various courts and bureaucratic boards apparently willing to stamp as “legal” anything the government could make up in its own interest.
And yet here’s the miracle at the heart of this tale: MacLean refused to quit, when ordinary mortals would have thrown in the towel. Now, with a recent semi-victory, he may not only have given himself a shot at getting his old job back, but also create a precedent for future federal whistleblowers. In the post-9/11 world, people like Robert MacLean show us how deep the Washington rabbit hole really goes.
The Whistle Is Blown
MacLean joined the Federal Air Marshal Service (FAMS) in 2001 after stints with the Air Force and the Border Patrol. In July 2003, all marshals received a briefing about a possible hijacking plot. Soon after, the Transportation Safety Administration (TSA), which oversees FAMS, sent an unencrypted, open-air text message to the cell phones of the marshals cancelling several months of missions for cost-cutting reasons. MacLean became concerned that cancelling missions during a hijacking alert might create a dangerous situation for the flying public. He complained to his supervisor and to the Department of Homeland Security’s inspector general, but each responded that nothing could be done.
It was then that he decided to blow the whistle, hoping that public pressure might force the TSA to reinstate the marshals’ flights. So MacLean talked to a reporter, who broadcast a story criticizing the TSA’s decision and, after 11 members of Congress joined in the criticism, it reversed itself. At this point, MacLean had not been identified as the source of the leak and so carried on with his job.
A year later, he appeared on TV in disguise, criticizing the TSA dress code and its special boarding policies, which he believed allowed marshals to be easily identified by other passengers. This time, the TSA recognized his voice and began an investigation that revealed he had also released the 2003 text message. He was fired in April 2006. Although the agency had not labeled that message as “sensitive security information” (SSI) when it was sent in 2003, in August 2006, months after MacLean’s firing, it issued a retroactive order stating that the text’s content was indeed SSI.
A Whistleblower’s Catch-22
That disclosing the contents of an unclassified message could get someone fired for disclosing classified information is the sort of topsy-turvy situation which could only exist in the post-9/11 world of the American national security state.
Under the 1989 Whistleblower Protection Act (WPA), a disclosure prohibited by law negates whistleblower protections. That, of course, makes it in the government’s interest to define disclosure as broadly as possible and to classify as much of its internal communications for as long as it possibly can. No wonder that in recent years the classification of government documents has soared, reaching a record total of 92,064,862 in 2011.
Officially, the U.S. government recognizes only three basic levels of classification: confidential, secret, and top secret. Since 9/11, however, various government agencies have created multiple freestyle categories of secrecy like “SSI,” “Law Enforcement Sensitive,” “Sensitive But Unclassified,” and the more colorful “Eyes Only.” All of these are outside the normal codification system; all are hybrids that casually seek to incorporate the full weight of the formal law. There are currently 107 designations just for “sensitive” information. In addition to those labels, there exist more than 130 sets of extra “handling requirements” that only deepen the world of government secrecy.
At issue for MacLean was not only the retroactive classification of a text message already in the public domain, but what classified could possibly mean in an era when everything related to the national security state was slipping into the shadows. Such questions are hardly semantic or academic. MacLean’s case hinges on how they are answered.
The case against Army Private Bradley Manning and WikiLeaks is, for example, intimately tied up in them. The military hides behind classification to block access to Manning’s “public” trial. With WikiLeaks, despite more than 100,000 U.S. State Department diplomatic cables being available to anyone anywhere on the web, the government continues to insist that they remain “classified” and cannot even be rereleased in response to requests. Potential federal employees were warned to stay away from the cables online, and the State Department even blocked TomDispatch from its staff to shield them from alleged WikiLeaks content (some of which was linked to and discussed, but none of which was actually posted at the site).
With author Tony Shaffer, the government retroactively classified its own account of why he was given the Bronze Star and his standard deployment orders to Afghanistan after he published an uncomplimentary book about American actions there. The messy case of alleged “hacktivist” Barrett Brown includes prosecution for “disclosing” classified material simply by linking to it at places where it had already been posted online; and, while still at the State Department, I was once accused of the same thing by the government.
In MacLean’s case, over a period of seven years, the legality of the TSA firing him for using an only-later-classified text was upheld. Legal actions included hearings before administrative judges, the Merit Systems Protections Board twice, that interlocutory appeal, and the U.S. Court of Appeals for the Ninth Circuit. The sum of these decisions amid a labyrinth of judicial bureaucracies demands the use of the term Kafkaesque. MacLean, so the general judgment went, should have known that the text message he planned to leak was a classified document, even when it wasn’t (yet). As a result, he should also have understood that his act would not be that of a whistleblower alerting the public to possible danger, but of a criminal risking public safety by exposing government secrets. If that isn’t the definition of a whistleblower’s catch-22, what is?
What such a twisted interpretation by the various courts, boards, and bodies meant was chillingly laid out in an amicus brief on behalf of MacLean filed by the United States Office of Special Counsel (a small, lonely U.S. government entity charged with protecting whistleblowers):
“Whistleblowers should not have to guess whether information that they reasonably believe evidences waste, fraud, abuse, illegalities or public dangers might be later designated as SSI [unclassified sensitive security information] and therefore should not be disclosed. Rather than making the wrong guess, a would-be whistleblower will likely choose to remain silent to avoid risking the individual’s employment.”
Seven Years Later…
In 2011, five years after he had been fired as an air marshal, MacLean’s case finally reached the United States Court of Appeals for the Federal Circuit. Two full years after that, in April 2013, the court handed down a decision that may yet provide justice for Robert MacLean — and for future whistleblowers. While awkwardly upholding previous decisions that the government can indeed retroactively classify information, even documents in categories like SSI that exist outside the government’s official framework for classification and secrecy, the court tackled a more basic question: Was Robert MacLean a whistleblower anyway, entitled to protection for his act of conscience?
Here lies the conflict at the heart of just about every whistleblower case — between the public’s right (and need) to know and the (at times legitimate) need for secrecy. The government typically argues that individuals should not be allowed to decide for themselves what remains secret and what doesn’t, or chaos would result. At the same time, in a post-9/11 world of increasing secrecy, the loss of the right to know, and the massive over-classification of documents, the “conflict” has become ever more one-sided. If everything can be considered a classified secret document too precious for Americans to know about, and nothing classified can be disclosed, then the summary effect is that nothing inside the government can ever be shown to the public.
The court found that while the Transportation Safety Administration could legally apply any classification it wanted to information any time it wanted, even retroactively, simply slapping on such a label did not necessarily prohibit disclosure. Absent an actual law in MacLean’s case mentioning SSI, a term created bureaucratically, not congressionally, there could be no Whistleblower Protection Act-excepting prohibition. In other words, MacLean could still be a whistleblower.
One of MacLean’s lawyers, Tom Devine, told me the decision “restored enforceability for the Whistleblower Protection Act’s public free speech rights. It ruled that only Congress has the authority to remove whistleblower rights. Agency-imposed restraints are not relevant for WPA rights.”
“With this precedential decision,” MacLean explained to me, “agencies can no longer cancel out Whistleblower Protection Act rights with their semi-secret markings like SSI, Law Enforcement Sensitive, etcetera.”
In a concurring opinion, United States Court of Appeals for the Federal Circuit Judge Evan Wallach was even clearer: “Mr. MacLean presented substantial evidence that he was not motivated by personal gain but by the desire to protect the public… I concur to emphasize that the facts alleged, if proven, allege conduct at the core of the Whistleblower Protection Act.”
MacLean’s case now returns to the Merit Systems Protection Board. The board is a complex piece of bureaucracy inside the already complicated federal government personnel system. In simple terms, it is supposed to be a place to appeal personnel actions, such as alleged unfair hirings and firings. It thus serves as a kind of watchdog over the sprawling federal human resources empire. The Board now has the court-ordered specific charge to “determine whether Mr. MacLean’s disclosure qualifies for WPA protection.”
Note as well that this case could continue without end for years more, traveling on “appeal” back through the federal judicial bureaucracy and the courts. And remember that this, too, is an advantage to a government that wants ever less known about itself. If, as a federal employee, you are watching a case like MacLean’s (or Thomas Drake’s, or Franz Gayle’s, or Morris Davis’s, or John Kiriakou’s, or even my own small version of this), then you can’t help noticing that the act of whistleblowing could leave you: a) out on your ear; b) prosecuted for a criminal act and/or c) with your life embroiled for years in the intricacies of your own never-ending case. None of this is exactly an encouragement to federal employees to blow that whistle.
Whistleblowers and Secrecy
Threats to whistleblowers abound, so any positive step, however minimalist or reversible, is important. Entering the White House pledging to head the most transparent administration in history, Barack Obama has, in fact, gone after more national security whistleblowers, often using the draconian Espionage Act, than all previous administrations combined.
His Justice Department has repeatedly tried to prosecute whistleblowers, crudely lumping them in with actual spies and claiming they endanger Americans (and sometimes “the troops”) by their actions. In addition, through the ongoing case of Berry v. Conyers, Obama has sought to expand the definition of “national security worker” to potentially include thousands of additional federal employees. Many employees who occupy truly sensitive jobs in the intelligence community (for example, real-world spies at the CIA) are exempt from being granted whistleblower status. They also cannot appeal to the Merit Systems Protection Board if fired. By seeking to expand that exemption to a significantly larger group of people who may work at some federal agency, but in non-sensitive positions, Obama is also functionally moving to shrink the pool of potential whistleblowers. In Berry v. Conyers, for example, the persons Obama seeks to exempt as occupying sensitive jobs are merely an accounting technician and a commissary worker at an Air Force base. Neither of them even hold security clearances.
What happens with MacLean’s case potentially affects every future whistleblower. If the mere presence of a pseudo-classification on an item, even applied retroactively, negates whistleblower protections, it means dark days ahead for the right of the citizenry to know what the government is doing (or how it’s misbehaving) in its name. If so, no act of whistleblowing could be considered protected, since all the government would have to do to unprotect it is classify whatever was disclosed retroactively and wash its hands of the miscreant. Federal employees, not a risk-taking bunch to begin with, will react accordingly.
This is what gives MacLean’s case special meaning. While the initial decision on his fate will occur in the bowels of the somewhat obscure Merit Systems Protections Board, it will set a precedent that will surely find its way into higher courts on more significant cases. Amid a lot of technical legal issues, it all boils down to something very simple: Should whistleblower protections favor the conscience of a concerned federal employee willing to risk his job and the freedom to inform the public, or should they dissolve in the face of an unseen bureaucrat’s (retroactive) pseudo-classification decision?
Procedurally, there are many options ahead for MacLean’s case, and the government will undoubtedly contest each tiny step. Whatever happens will happen slowly. This is exactly how the government has continually done its dirty work post-9/11, throwing monkey wrenches in the gears of the legal system, twisting words, and manipulating organizations designed to deliver justice in order to deny it.
MacLean smiles at this. “I did seven years so far. I can do seven more if they want. There’s too much at stake to just give up.”
Copyright © 2017. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
For those who woke a week ago to discover the First Amendment is under attack, I lost my job at the Obama/Clinton State Department in 2012 for writing We Meant Well, a book the government did not like, and needed the help of lawyer Jesselyn Radack and the ACLU to push back the threat of jail.
My book was critical of actions in Iraq under both the Obama and Bush administrations. One helped protect the other.
Braver people than me, like Thomas Drake, Morris Davis, and Robert MacLean, risked imprisonment and lost their government jobs for talking to the press about government crimes and malfeasance. John Kiriakou, Chelsea Manning, and Jeff Sterling went to jail for speaking to/informing the press. The Obama administration tried to prosecute reporters from Fox and the New York Times for stories on government wrongdoing.
Ray Maxwell at the State Department went public with information about Clinton’s email malfeasance before you had even heard of her private server. The media called him a liar, an opportunist, and a political hack and he was pressed into retirement.
Indeed, Obama prosecuted more federal whistleblowers under the Espionage Act than all previous United States presidents combined, including Richard Nixon, Ronald Reagan and George W. Bush.
The Obama administration also set a record (77%) for redacting government files or denying access to them in fiscal year 2014 under the Freedom of Information Act.
More than any previous administration, Obama took longer to turn over files, said more often it could not locate documents, and refused a record number of times to turn over time-sensitive files quickly, requiring years-long legal actions to be brought to force the government’s hand. In the case of Hillary Clinton, files considered “unclassified” in one context were redacted in whole in another.
Though the backlog of unanswered requests grew by 55%, the administration cut the number of full-time Freedom of Information Act employees by 7.5%. Despite the critical nature of the documents to the election, the State Department was allowed to do its Freedom of Information Act screening of the Clinton emails largely with an ad hoc crew of retirees. The impact on journalists, and the right of the people to know, was immeasurable.
So spare me. The war on our freedoms was well under way before last week. Where the hell were you and your safety pins then?
Federal Bureau of Investigation director James Comey announced that his agency is recommending no charges against Hillary Clinton for her use of an unclassified personal email server while secretary of state. Comey offered that “no reasonable prosecutor” would bring a case against Clinton.
The implications of these statements, and what happened before and after the announcement, represent what most likely represent the virtual end of the 2016 election cycle. Come November votes will be counted but the single, major, unresolved issue standing in the shadows behind Clinton is now resolved in her favor.
The director of the FBI labeled the leading contender for the presidency and her staff as “extremely careless” in their use of email, and this is generally seen as positive news by her supporters, the new standard now being not under indictment. Comey also stated that some 110 emails were classified ( at least 24 as Top Secret; one was found to be marked classified on Clinton’s server) when they were transmitted and received, an action that appears to be now inconsequential under national security laws. A New York Times tally found more than 2,000 classified emails.
There was no electronic connection between the Federal government’s classified systems and Clinton’s unclassified server. This indicates that on 110 separate occasions Clinton and/or one of her correspondents retyped information from a classified format. This means any classified markings (i.e., “Top Secret”) were removed in the process. “This classified information never should have been transmitted via an unclassified personal system,” Steve Linick, the State Department inspector general, said in a statement signed by him and I. Charles McCullough III, the inspector general for the intelligence community.
The Inspectors General for the Intelligence Community have stated that some of the classified documents were marked at the highest levels to protect sources and methods used to spy on North Korea via satellite. Emails contained the names of CIA officials. There is no evidence, nor did Comey suggest, that these actions were inadvertent, accidental, occasional, incidental, or other than intentional. It was Clinton’s decision to create the email system that allowed these events to take place. Clinton herself, given her decades of experience in government, clearly could recognize highly classified material, marked or unmarked. Standard Form 312, signed by Clinton and every other security clearance holder in the government, specifically notes that the laws apply to both marked and unmarked classified material. The legality of retroactive classification has been tested at the level of the Supreme Court.)
While Director Comey maintains there was no intent, or gross negligence, by Clinton to violate the law, it is difficult to reconcile those actions and that statement.
Hillary Clinton’s earliest statements, that no classified information traversed her server, later changed to “no marked” classified information (the statement itself irrelevant) did not appear to be addressed by the FBI in the context of perjury or obstruction. In addition, Josh Rogin of the Washington Post reports Clinton’s lawyers deleted all e-mails they did not produce to the State Department and then cleaned devices in such a way to preclude forensic recovery.
The standards applied in the Clinton case are at extreme variance from how classified information violations elsewhere in the government are applied. Space precludes listing examples in detail, but the cases of CIA officer John Kiriakou (served three years in Federal prison for exposing a single, unmarked unclassified business card with the name of a CIA employee) and TSA air marshall Robert Maclean (fired for exposing a text retroactively classified) stand out. Even David Petraeus, who transmitted classified information via his Gmail account to his mistress, received some minor legal punishment and was forced to resign.
There is simply no precedent to the Clinton decision. One wonders if the millions of U.S. government civil employees, military personnel, and contractors will be held to what appear to be lesser standards than previously held. That certainly wasn’t the case of Marine Major Jason Brezler, who shared classified information with colleagues in Afghanistan in to warn them about a Taliban conspirator, and was forced out of the service in response.
Director Comey spoke broadly. He did not, for example, directly address the 18 USC 1924, which states “Whoever… becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.” This is the statute under which David Petraeus was prosecuted. It is difficult to reconcile the text of that law with the fact that classified documents resided on a server (for part of the time) at a private company, connected to the internet. A private SPAM filtering service apparently also had access to the classified emails.
An important issue not addressed by the FBI is the effect Clinton’s actions had on the Freedom of Information Act.
During her entire tenure as Secretary of State and for some time afterwards, State maintained it had no email records to produce in response to requests. Those statements — while technically true in that State did not control and could not search Clinton’s personal server — blocked journalists, activists, citizens, and for a time, Congress, from documents they were lawfully entitled to. The State Department says it will now require 75 years to release all of the documents currently under request.
The State Department’s own Inspector General found these actions to be in contravention of the Federal Records Act, and presents what might be seen as chilling preview of press relations and the public’s right to know for the next four years.
In addition, Clinton deleted about half of the emails from her personal server without oversight. It is unclear whether or not any of those would have been responsive to Freedom of Information Act requests, or contained additional classified information. The FBI did say emails it found in others’ Inboxes, ones not turned over by Clinton, the State Department, were work related. Clinton had previously claimed she turned over all work-related emails.
In the Clinton case, we are also left with unanswered questions about the timeline of events. Bill Clinton met with Attorney General Loretta Lynch on June 28, according to both, to make small talk about grandchildren. On July 1 Lynch announced she would accept Director Comey’s recommendation on the email case. On July 2 the FBI interviewed Clinton for several hours. On June 3, the New York times stated Clinton is considering keeping Lynch in her administration if she wins in November. On July 5 President Barack Obama and Hillary Clinton flew together on Air Force One to their first scheduled campaign. Only hours later Comey made his announcement, meaning that whatever Clinton said on Sunday was evaluated and processed in less than two days following a year of active investigation. The appearance of impropriety alone remains damaging to the image of our nation.
Few believed, right or wrong, that Hillary Clinton would face criminal charges over her handling of classified material. Yet the many unanswered questions and issues not addressed by the Federal Bureau of Investigation remain. It seems unlikely that even if the majority of voters in November see the issue put to rest, that Republicans in Congress will feel the same come January.
Have you noticed that Clinton’s explanations/excuses/defenses about her private email server and the classified information it held never seem to last very long, and are typically replaced in a week or two with something new?
Back in March the message was unambiguous: there was no classified material on her server. Then, after two Inspectors General said there indeed was classified material, the line was it was classified retroactively (as if that matters; see below). That soon fell to a line that the classified information was unmarked as such (as if that matters; see below). The newest is that well, Clinton herself did not send any of the classified emails. So, once again wrapped in new shiny paper, there’s nothing to see here, folks, let’s move along to the issues that really matter. I’ll tackle that as well, below.
No one has better summed up the official Clinton Child’s Treasury of Excuses better than Senator Dianne Feinstein, who somewhat randomly released a statement “in response to allegations” regarding Clinton’s emails.
Let’s break Feinstein’s statement down.
The Dog Ate My Homework
Feinstein: First, none of the emails alleged to contain classified information were written by Secretary Clinton.
Here’s your talking point, somnolent media. It’s someone else’s fault.
Of course, the Inspectors General were only allowed by the State Department to review 40 emails, four of which contained classified. So there are still some 30,000 left to look into to see if Clinton herself did respond to, forward or write any of them.
Next is that the classified emails, no matter who wrote them, ended up in an insecure system because Clinton chose to do things that way in contravention of all good practice and rationality, if not actual law and regulation.
She was the prime mover behind the lapses in security. And after all, the cops bust the owner of the crackhouse, not just the ‘heads inside. The “buck stops where” is the question. Clinton continues to claim total ignorance of the contents of her own email to this day. Is all that presidential?
Lastly, no matter who wrote the emails, once Clinton saw them they became her responsibility to act on and secure. In real life, failure to report and secure classified found in an unsecure situation is also a violation of national security law. With that access comes responsibility. Remember, if you see something, say something!
I Didn’t Know, Honest, Sir
Feinstein: Second, none of the emails alleged to contain classified information include any markings that indicate classified content.
There is no allegation. The Inspectors General of the State Department and the Intelligence community said the emails contain classified material.
What everyone who has ever held a security clearance knows, and what the media, from left to right, cannot grasp is this: the information itself is or is not classified. The markings are there to show you what level of secure handling is required.
I’ll try again for the slow learners at CNN.
You are handed a piece of paper marked TOP SECRET//SI//TK/NOFORN (explained here). On the paper are written the negotiating positions of the Chinese Foreign Minister, whom you will meet tomorrow. The paper says these were obtained via a spy satellite listening in on the Minister in his inner office via electronic emissions.
Now, cut off the part of the paper that says TOP SECRET//SI//TK/NOFORN. Does the sensitivity of the information change at that moment? Of course not.
If you have lived in a remote cabin all your life, you may not grasp the sensitivity of knowing your opponent’s positions a day ahead of time and the sensitivity that this information was derived by some of America’s most secret sources and methods. But if you have spent your entire life in government, you damn well know that that information is not unclassified, whether it shows up in your email unmarked or otherwise.
It really, really is that simple. Marked or unmarked, pro-active or retro-active, Clinton knew she was dealing with highly classified information on an unclassified system she herself set up and continued to use.
Retroactive classification means that something was classified when it was issued. The markings were applied later, but that does not relieve the holder of the information of the legal burden of protecting the information. Government employees have lost their jobs over this concept, and gone to jail. This has been confirmed as legal as high as the Supreme Court. See Department of Homeland Security v. Robert MacLean for the most recent case. Legally, citing retroactive classification is not a defense.
“Everybody does it.” No they don’t. No other government employee, never mind Cabinet-level official, has created her own private email server in the history of the United States. If Jeb Bush had a private server as governor of Florida, that is not a charm point for him, but he also did not handle America’s most sensitive information, or any classified information at all. John Kerry and Condi Rice said they do not send official emails outside of the State Department system. Madeleine Albright said she may have sent a few back in the dawn of the Internet 14 years ago via AOL or Yahoo, and no one has suggested she sent anything classified. Colin Powell as Secretary of State said he sent a handful of emails on his AOL account, and no one has claimed there was any classified involved.
Besides, “everybody does it” is an excuse that teenagers use when they’re caught smoking behind the school.
Now, as for that “let’s get back to the issues” meme that many Clinton supporters like to go to.
No one can anticipate what will happen during the four (or eight…) years of a presidency. So while experience matters significantly, judgement and trust matter perhaps even more. Those are the things that will see success or failure when the unexpected arises one night at 3 am.
Lastly, I think also the point needs to be made that if the only standard we apply to candidates’ wrongdoings is if it is not criminal and illegal, it does not matter, sets a pretty low bar. I’d like to vote for a president who, in addition to not being a convicted criminal, is also somewhat honest, with good judgement and who at least feigns putting the nation’s interests before his/her own.
If one cannot see that, at a minimum, Clinton exercised horribly bad judgement and cannot be trusted to protect America’s secrets, and if one cannot see that those are indeed issues for an election, then, well, I just don’t know what else to say here.
My thanks to The Examiner, OPSEC Team, The Hill and Daily Kos for their articles noting the discrepancy between how the State Department treated my non-disclosure of classified materials on an unclassified system, and Hillary Clinton’s actual disclosure of classified materials on an unclassified system. There seem to be double-standards being applied.
My first book, We Meant Well embarrassed the State Department by pointing out the failure of State’s efforts in Iraq. In retaliation for this, the State Department used its security bureaucracy infrastructure to push me into retirement after they failed to prosecute me, and then failed to fire me.
Here’s what they did
In October 2011 I wrote this blog post, which linked to an alleged State Department confidential cable on the Wikileaks site. The document in question was and still is online for all the world to see. State has never acknowledged publicly its authenticity or its classification.
I merely linked to it.
Based on that link, the State Department’s Bureau of Diplomatic Security conducted a full investigation into my ability to continue to hold the Top Secret security clearance I had held without incident for 23 years. They concluded I was no longer to be trusted.
In fact, they said:
The SUBJECT is me. SBU stands for Sensitive But Unclassified, a made-up level of classification the State Department routinely assigns to all of its unclassified information to allow it to withhold documents from journalists and others as required. DS/ICI/PR is the State Department Office of Diplomatic Security, Professional Responsibility Division.
The investigation into my supposed misdeeds around classified materials included Diplomatic Security running the “hacker” program WGET against this blog, and amassing “Screen shots collected by the DS Computer Threat Analysis Division (DS/CTAD) from the article ‘Let’s Watch Qaddafi Get Beaten and (Maybe) Sodomized’ published on WeMeantWell.com on 10/26/2011.” Agents also printed out nearly my entire blog to preserve a paper copy, apparently in case I deleted the files from my server. Hmm.
I was interviewed three times in depth by a team of security agents, who characterized my linking as “transferring [classified] information from Wikileaks.org” to my own, unclassified, blog. I learned later that Diplomatic Security had been monitoring my State Department computer to ensure I did not misuse it. Security also searched my official email back several years and interviewed my neighbors looking for, well, something to use against me.
It was a lot of effort by a busy organization over what, even if it had been as they portrayed it, a pretty minor matter.
Clinton v. Manning: Protecting Classified Information
And of course during the Bradley/Chelsea Manning trial, itself concerning State’s Secret level cables, Hillary Clinton was clear on her position: “I think that in an age where so much information is flying through cyberspace, we all have to be aware of the fact that some information which is sensitive, which does affect the security of individuals and relationships, deserves to be protected and we will continue to take necessary steps to do so.”
I’ve focused here on my own situation not because it was important nationally, or out of bitterness (OK, maybe a little, I’m human) but primarily because it is the example I know most about.
But there are others.
The Intercept points out NSA whistleblower Tom Drake, for instance, faced years in prison, and ultimately had his career destroyed, based on the Obama DOJ’s claims that he “mishandled” classified information (it included information that was not formally classified at the time but was retroactively decreed to be such). Less than two weeks ago, “a Naval reservist was convicted and sentenced for mishandling classified military materials” despite no “evidence he intended to distribute them.” Last year, a Naval officer was convicted of mishandling classified information also in the absence of any intent to distribute it.
John Kiriakou was sent to prison in part for his alleged mishandling of a business card, unmarked as to classification, that the CIA claimed was sensitive. Robert Maclean, at TSA, lost his job because he revealed unclassified information that was later retroactively classified.
There are many examples.
What it means…
You are welcome to say what you wish about the merits or lack thereof of how I was treated by the State Department when the issue was handling of classified information. This article is not to open an old can of worms. I retired from my 24 years at the State Department and that’s that as far as that’s concerned.
The point here instead is that State appears to have a sliding scale of how it sees possible security violations by its employees — Hillary Clinton and me, in this instance. Because while all this was happening with me in 2011, Clinton was running her own email system, unclassified in name but with classified materials in fact.
And when you have double standards, as everyone knows, you really have no standards at all.
BONUS: That photo’s of me, on my last day of work at State, wearing my ‘Free Bradley Manning’ T-shirt on campus. Manning, of course, is in jail for disclosing Secret-level information. I lost my job over purported confidential information. Hillary’s server contained above Top Secret information, the same level of information Edward Snowden is accused of disseminating.
Rahinah Ibrahim is a slight Malaysian woman who attended Stanford University on a U.S. student visa, majoring in architecture. She was not a political person. Despite this, as part of a post-9/11 sweep directed against Muslims, she was investigated by the FBI. In 2004, while she was still in the U.S. but unbeknownst to her, the FBI sent her name to the no-fly list.
Ibrahim was no threat to anyone, innocent of everything, and ended up on that list only due to a government mistake. Nonetheless, she was not allowed to reenter the U.S. to finish her studies or even attend her trial and speak in her own defense. Her life was derailed by the tangle of national security bureaucracy and pointless “anti-terror” measures that have come to define post-Constitutional America. Here’s what happened, and why it may matter to you.
The No-Fly List
On September 10, 2001, there was no formal no-fly list. Among the many changes pressed on a scared population starting that September 12th were the creation of two such lists: the no-fly list and the selectee list for travelers who were to undergo additional scrutiny when they sought to fly. If you were on the no-fly list itself, as its name indicated, you could not board a flight within the U.S. or one heading out of or into the country. As a flight-ban plan, it would come to extend far beyond America’s borders, since the list was shared with 22 other countries.
On January 2, 2005, unaware of her status as a threat to the United States, Ibrahim left Stanford for San Francisco International Airport to board a flight to Malaysia for an academic conference. A ticket agent saw her name flagged in the database and called the police.
Despite being wheelchair-bound due to complications from a medical procedure, Ibrahim was handcuffed, taken to a detention cell, and denied access to medication she had in hand. Without explanation, after extensive interrogation, she was allowed to board her flight. When she tried to return to America to resume her studies, however, she found herself banned as a terrorist.
Suing the United States
Stuck in Malaysia, though still in possession of a valid student visa, Ibrahim filed a lawsuit against the U.S. government, asking to be removed from the no-fly list and allowed back into the country to continue her architectural studies.
Over almost nine years, the U.S. Department of Justice (DOJ) employed an arsenal of dodges and post-9/11 tricks to impede her lawsuit, including invoking the “state secrets doctrine” to ensure that she would never have access to the records she needed. “State secrets” is not a law in the U.S., as it is, for example, in Great Britain, where the monarch also retains “Crown Privilege,” the absolute right to refuse to share information with Parliament or the courts. Here, it is instead a kind of assumed privilege and the courts accept it as such. Based on it, the president can refuse to produce evidence in a court case on the grounds that its public disclosure might harm national security. The government has, in the past, successfully employed this “privilege” to withhold information and dead-end legal challenges. Once “state secrets” is in play, there is literally nothing left to talk about in court.
A related DOJ dodge was also brought to bear in an attempt to derail Ibrahim’s case: the use of made-up classification categories that dispatch even routine information into the black world of national security. Much of the information concerning her placement on the no-fly list, for instance, was labeled Security Sensitive Information (SSI) and so was unavailable to her. SSI is among hundreds of post-9/11 security categories created via memo by various federal agencies. These categories, too, have no true legal basis. Congress never passed a law establishing anything called SSI, nor is there any law prohibiting the disclosure of SSI information. The abuse of such pseudo-classifications has been common enough in the post-9/11 years and figured significantly in the ongoing case of Transportation Security Administration (TSA) whistleblower Robert MacLean.
Next in its end-run around Ibrahim’s lawsuit, the DOJ pulled “standing” out of its bag of tricks. Standing is a legal term that means a person filing a lawsuit has a right to do so. For example, in some states you must be a resident to sue. Seeking to have a case thrown out because the plaintiff does not have standing was a tactic used successfully by the government in other national security cases. The ACLU, for instance, sued the National Security Agency for Fourth Amendment violations in 2008. The Supreme Court rejected the case in 2013 for lack of standing, claiming that unless the ACLU could conclusively prove it had been spied upon, it could not sue. In the wake of the Edward Snowden revelations showing that the NSA indeed spied widely on American citizens, the ACLU has revived the suit. It claims that the new documents provide clear evidence of broad-based surveillance and so now give it standing.
Standing was also used by the DOJ in the case of American citizen and purported al-Qaeda member Anwar al-Awlaki, whom the U.S. murdered by drone in Yemen. Prior to his son’s death, attorneys for al-Awlaki’s father tried to persuade a U.S. District Court to issue an injunction preventing the government from killing him. A judge dismissed the case, ruling that the father did not have standing to sue.
In Ibrahim’s no-fly case, the government argued that since she was not an American citizen, she had no standing to sue the government for its actions against her in the U.S. When all of those non-meritorious challenges failed to stop the case, the government invoked the very no-fly designation Ibrahim was challenging, and refused to allow her to travel to the United States to testify at her own trial.
Next, Ibrahim’s daughter, an American citizen traveling on a U.S. passport, was not allowed to board a flight from Malaysia to serve as a witness at her mother’s trial. She, too, was told she was on the no-fly list. After some legal tussling, however, she was finally allowed to fly to “the Homeland.” Why the American government changed its mind is classified and almost all of the trial transcript concerning the attempt to stop her from testifying was redacted from public disclosure.
In addition, by regularly claiming that classified information was going to be presented, the government effectively hid the ludicrous nature of the Ibrahim case from much public scrutiny. The trial was interrupted at least 10 times and the public, including journalists, were asked to leave the courtroom so that “classified evidence” could be presented.
A message of intimidation had been repeatedly delivered. It failed, however, and Ibrahim’s case went to trial, albeit without her present.
Despite years of effort by the DOJ, Ibrahim won her lawsuit. The U.S. District Court for Northern California ordered the removal of her name from the no-fly list. However, in our evolving post-Constitutional era, what that “victory” revealed should unnerve those who claim that if they are innocent, they have nothing to fear. Innocence is no longer a defense.
During the lawsuit, it was made clear that the FBI had never intended Ibrahim to be placed on the no-fly list. The FBI agent involved in the initial post-9/11 investigation of Ibrahim simply checked the wrong box on a paper form used to send people into travel limbo. It was a mistake, a slip up, the equivalent of a typo. There was no evidence that the agent intended harm or malice, nor it seems were there any checks, balances, or safeguards against such errors. One agent could, quite literally at the stroke of a pen, end someone’s education, job, and family visits, and there was essentially no recourse.
Throughout the nine years Ibrahim fought to return to the U.S., it appears that the government either knew all along that she was no threat and tried to cover up its mistake anyway, or fought her bitterly at great taxpayer expense without at any time checking whether the no-fly designation was ever valid. You pick which theory is most likely to disturb your sleep tonight.
Having won her case, Ibrahim went to the airport in Kuala Lumpur to fly back to Stanford and resume her studies. As she attempted to board the plane, however, she was pulled aside and informed that the U.S. embassy in Malaysia had without notice revoked her student visa. No visa meant, despite her court victory, she once again could not return to the United States.
At the U.S. embassy in Kuala Lumpur, Ibrahim was handed a preprinted “explanation” for the visa revocation with the word “terrorist” hand-written next to the boilerplate text. Ibrahim was never informed of her right under U.S. law to apply for a waiver of the visa revocation.
Though it refused to re-issue the visa, the State Department finally had to admit in court that it had revoked the document based solely on a computer “hit” in its name-checking database, the Consular Lookout and Support System (CLASS.) That hit, in turn, appeared to be a straggler from the now defunct no-fly list entry made erroneously by the FBI.
The State Department and CLASS
As is well known, the State Department issued legal visas to all of the 9/11 terrorists. In part, this was because the CIA and other U.S. intelligence agencies failed to tell State what they knew about the hijackers, as all were suspected to be bad guys. Then and now, such information is passed on when intelligence and law enforcement agencies make electronic entries in State’s computerized lookout system. CLASS is part of the Consular Consolidated Database, one of the largest known data warehouses in the world. As of December 2009, it contained over 100 million cases and 75 million photographs, and has a current growth rate of approximately 35,000 records per day. CLASS also collects the fingerprints of all foreigners issued visas.
The problem is that CLASS is a one-way street. Intelligence agencies can put data in, but can’t remove it because State keeps the database isolated from interactive data maintenance. In addition, the basic database it uses to screen out bad guys typically only has a subject’s name, nationality, and the most modest of identifying information, plus a numerical code indicating why a name was entered. One code, 3B, stands for “terrorist”; another, 2A, means “criminal”; and so forth through the long list of reasons the U.S. would not want to issue a visa. Some CLASS listings have just a partial name, and State Department visa-issuing officers regularly wallow through screen after screen of hits like: Muhammad, no last name, no date of birth, Egypt — all marked as “critical, Category One” but with no additional information.
Nor, when the information exists but was supplied by another agency, do U.S. embassies abroad have direct access to the files. Instead, when a State Department official gets a name “hit” overseas, she must send a “Security Advisory Opinion,” or SAO, back to Washington asking for more information. The recipient of that cable at Foggy Bottom must then sort out which intelligence agency entered the data in the first place and appeal to it for an explanation.
At that point, intelligence agencies commonly to refuse to share more, claiming that no one at State has the proper clearances and that department should just trust their decision to label someone a bad guy and refuse to issue, or pro-actively revoke, a visa. If, on the other hand, information is shared, it is often done on paper by courier. In other words, a guy shows up at State with a bundle of documents, waits while someone reviews them, and then spirits them back to the CIA, the FBI, or elsewhere. That way, the intelligence agencies, always distrustful of State, are assured that nothing will be leaked or inadvertently disclosed.
In cases where no more information is available, or what is available is inconclusive, the State Department might allow the visa application to pend indefinitely under the heading “administrative processing,” or simply “prudentially” revoke or not issue the visa. No one wants to risk approving a visa for the next 9/11 terrorist, even if it’s pretty obvious that the applicant is nothing of the sort.
This undoubtedly is what happened to Ibrahim. Though the details remain classified, State certainly didn’t possess super secret information on her unavailable to other law enforcement or intelligence outfits. Some official surely decided to take no chances and revoked her visa “prudentially” based on the outdated information still lodged in CLASS.
Not CLASS Alone
Ibrahim’s case also reveals just how many secret databases of various sorts exist in Washington. Here’s how a name (your name?) gets added to one of those databases, and how it then populates other lists around the world.
A name is nominated for the no-fly list by one of hundreds of thousands of government officials: an FBI agent, a CIA analyst, a State Department visa officer. Each nominating agency has its own criteria, standards, and approval processes, some — as with the FBI in Ibrahim’s case — apparently pretty sloppy.
The nominated name is then sent to the Terrorist Screening Center (TSC) at a classified location in suburban Northern Virginia. TSC is a multi-agency outfit administered by the FBI and staffed by officials from the Department of Homeland Security, the Department of State, and all of the Intelligence Community.
Once a name is approved by the TSC (the process is classified), it will automatically be entered into a number of databases, possibly including but not necessarily limited to:
*the Department of Homeland Security’s no-fly list;
*that same department’s selectee list that ensures chosen individuals will be subject to additional airport screening;
*the State Department’s Consular Lookout and Support System (CLASS, including CLASS-Visa for foreigners and CLASS-Passport for U.S. Citizens);
*the Department of Homeland Security’s TECS (a successor to the Treasury Enforcement Communications System), which is used in part by customs officials, as well as its Interagency Border Inspection System (IBIS), used by immigration officials;
*the Known and Suspected Terrorist File (KSTF, previously known as the Violent Gang and Terrorist Organizations File);
*TUSCAN, a database maintained by Canada;
*TACTICS, a database maintained by Australia;
*and finally, an unknown number of other law enforcement and intelligence agency databases, as well as those of other foreign intelligence services with which information may be shared.
As Ibrahim discovered, once a name is selected, it travels deep and far into both U.S. and foreign databases. If one clears one’s name from one database, there are many others out there waiting. Even a comprehensive victory in one nation’s courts may not affect the records of a third country. And absent frequent travel, a person may never even know which countries have him or her on their lists, thanks to the United States.
Once she learned that her student visa had been revoked in Malaysia, Ibrahim sued again, asking that the State Department reissue it. The government successfully blocked this suit, citing a long-established precedent that visa matters are essentially an administrative function and so not subject to judicial review.
A court did scold State for failing to notify Ibrahim of her right to seek a waiver, as it was required to do by law. To the extent that Ibrahim’s case has any life left in it, her next step would be to return to the Department of Justice’s bailiwick and apply for a waiver of the revocation the State Department made based on data given to it by the DOJ that both outfits know was struck down by a court. It’s that “simple.” Meanwhile, she cannot return to the U.S.
Nothing to Hide?
A common trope for those considering the way the National Security Agency spies on almost everyone everywhere all the time is that if you have nothing to hide, you have nothing to fear. If your cell phone conversations are chit-chats with mom and your emails tend toward forwards of cute cat videos, why should you care if the NSA or anyone else is snooping?
Ask Rahinah Ibrahim about that. She did nothing wrong and so should have had nothing to fear. She even has a court decision declaring that she never was nor is a threat to the United States, yet she remains outside America’s borders. Her mistaken placement on the no-fly list plunged her head first into a nightmarish world that would have been all too recognizable to Franz Kafka. It is a world run by people willing to ignore reality to service their bureaucratic imperatives and whose multiplying lists are largely beyond the reach of the law.
Sad as it may be, the Ibrahim case is a fairly benign example of ordinary Washington practices in the post-9/11 era. Ibrahim is going about her life at peace in Malaysia. Her tangle with the United States seems to have been more a matter of bureaucratic screw-ups than anything else. No one sought to actively destroy her. She was not tortured in a CIA black site, nor left for years in a cage at Guantanamo. Her case is generally seen as, at worst, another ugly stain on the white wall we imagine we are as a nation.
But the watch lists are there. The tools are in place. And one thing is clear: no one is guarding the guards. You never know whose name just went on a list. Maybe yours?
[Note to Readers: You can fact-check this one by reviewing the same sources I drew from via links in the piece. Since many of the facts of Ibrahim’s case come from her suit against the Department of Homeland Security, however, I have limited the repetition of that link for ease of reading. You can find it by clicking here.]
Here’s the story behind the drive by the Inspector General of the State Department and the Intelligence Community Inspector General for the Justice Department open a full investigation into Hillary Clinton’s use of a private email account while she held the position of secretary of state.
Government investigators discovered classified information on the private email account that Hillary used while secretary of state, stating “unequivocally” that those secrets never should have been stored outside of secure systems.
The inspectors general of the State Department and the nation’s intelligence agencies said the information they found was classified when it was sent and remains so now. Information is considered classified if its disclosure would likely harm national security, and such information can be sent or stored only on computer networks with special safeguards. The inspectors have not revealed which of Clinton’s emails contained classified data, though the State Department has redacted portions of email it has released, and the FBI demanded data in some emails pertaining to the security situation in Libya be withheld.
Clinton has said for months that she kept no classified information on the private server that she set up. Her campaign said Friday that any government secrets found on the server had been classified after the fact.
There are multiple holes in Clinton’s latest set of excuses.
To begin, she has stated there was nothing classified on her server. It appears now there was. The source is not a partisan attack dog, but the State Department’s own inspector general and the intelligence community. She violated national security, which require cleared individuals, such as Hillary, to protect sensitive information. Exposing classified data is a crime; that is what Chelsea Manning and Edward Snowden are accused of doing. It does not matter if the info can be proven to have reached the media or an adversary, the crime is the exposure itself, not the results.
A person in Hillary’s position, and certainly with her claimed experience in government, should know what is and is not classified, sensitive or otherwise needs to be protected. In my own 24 years with the State Department, I saw that almost everything that reached the secretary’s office needed to be classified, either because of the contents itself, or because it was part of the tiny fraction of information that bubbled up that high. Of all the issues in the world, an adversary knowing what the secretary was personally focused on, or how the data was being presented to her, was valuable in its own right.
Some/much of the information Hillary was dealing with originated within her inner circle, particularly email sent between her and her closest advisors that helped shape her decisions. It is the originating person that is charged inside State with assigning a classification. If Hillary’s staff did not assign a classification, well, then one was not technically included with the data. But that’s a fudge; it is the data itself that matters, with or without a label, and as part of the responsibility for holding a clearance a person is expected to make judgements to protect information. Hillary knew how sensitive the information was at times. It is a veneer of deniability.
There have also been multiple public cases where the government has taken action against individuals because they “should have known unclassified” data “should have been classified” and thus protected. Google up those of TSA’s Robert MacLean, NSA’s Thomas Drake and, sadly, my own. All of us were punished, fired or threatened with jail over the alleged release of unclassified data that the government deemed ex post facto should have been considered classified. This is not speculation, it is precedent.
Criminal? Maybe. Irresponsible? Likely. Not very presidential? Certainly.
America has entered its third great era: the post-constitutional one. In the first, in the colonial years, a unitary executive, the King of England, ruled without checks and balances, allowing no freedom of speech, due process, or privacy when it came to protecting his power.
In the second, the principles of the Enlightenment and an armed rebellion were used to push back the king’s abuses. The result was a new country and a new constitution with a Bill of Rights expressly meant to check the government’s power. Now, we are wading into the shallow waters of a third era, a time when that government is abandoning the basic ideas that saw our nation through centuries of challenges far more daunting than terrorism. Those ideas — enshrined in the Bill of Rights — are disarmingly concise. Think of them as the haiku of a genuine people’s government.
Deeper, darker waters lie ahead and we seem drawn down into them. For here there be monsters.
The Powers of a Police State Denied
America in its pre-constitutional days may seem eerily familiar even to casual readers of current events. We lived then under the control of a king. (Think now: the imperial presidency.) That king was a powerful, unitary executive who ruled at a distance. His goal was simple: to use his power over “his” American colonies to draw the maximum financial gain while suppressing any dissent that might endanger his control.
In those years, protest was dangerous. Speech could indeed make you the enemy of the government. Journalism could be a crime if you didn’t write in support of those in power. A citizen needed to watch what he said, for there were spies everywhere, including fellow colonists hoping for a few crumbs from the king’s table. Laws could be brutal and punishments swift as well as extra-judicial. In extreme cases, troops shot down those simply assembling to speak out.
Among the many offenses against liberty in pre-constitutional America, one pivotal event, the Stamp Act of 1765, stands out. To enforce the taxes imposed by the Act, the king’s men used “writs of assistance” that allowed them to burst into any home or business, with or without suspicion of wrongdoing. American privacy was violated and property ransacked, often simply as a warning of the king’s power. Some colonist was then undoubtedly the first American to mutter, “But if I have nothing to hide, why should I be afraid?” He soon learned that when a population is categorically treated as a potential enemy, everyone has something to hide if the government claims they do.
The Stamp Act and the flood of kingly offenses that followed created in those who founded the United States a profound suspicion of what an unchecked government could do, and a sense that power and freedom are not likely to coexist comfortably in a democracy. A balancing mechanism was required. In addition to the body of the Constitution outlining what the new nation’s government could do, needed was an accounting of what it could not do. The answer was the Bill of Rights.
The Bill’s preamble explained the matter this way: “…in order to prevent misconstruction or abuse of [the government’s] powers, that further declaratory and restrictive clauses should be added.” Thomas Jefferson commented separately, “[A] bill of rights is what the people are entitled to against every government on earth.”
In other words, the Bill of Rights was written to make sure that the new government would not replicate the abuses of power of the old one. Each amendment spoke directly to a specific offense committed by the king. Their purpose collectively was to lay out what the government could never take away. Knowing first-hand the dangers of a police state and unchecked power, those who wrote the Constitution wanted to be clear: never again.
It needs to be said that those imperfect men were very much of their era. They were right about much, but desperately wrong about other things. They addressed “humanity,” but ignored the rights of women and Native Americans. Above all, they did not abolish the institution of slavery, our nation’s Original Sin. It would take many years, and much blood, to begin to rectify those mistakes.
Still, for more than two centuries, the meaning of the Bill of Rights was generally expanded, though — especially in wartime — it sometimes temporarily contracted. Yet the basic principles that guided America were sustained despite civil war, world wars, depressions, and endless challenges. Then, one September morning, our Post-Constitutional era began amid falling towers and empty skies. What have we lost since? More than we imagine. A look at the Bill of Rights, amendment by amendment, tells the tale.
The First Amendment
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The First Amendment was meant to make one thing indisputably clear: free speech was the basis for a government of the people. Without a free press, as well as the ability to openly gather, debate, protest, and criticize, how would the people be able to judge their government’s adherence to the other rights? How could people vote knowledgeably if they didn’t know what was being done in their name by their government? An informed citizenry, Thomas Jefferson stated, was “a vital requisite for our survival as a free people.”
That was how it was seen long ago. In Post-Constitutional America, however, the government strives to “control the message,” to actively thwart efforts to maintain a citizenry informed about what’s done in its name, a concept that these days seems as quaint as Jefferson’s powdered wig. There are far too many examples of the post-9/11 erosion of the First Amendment to list here. Let’s just look at a few important ones that tell the tale of what we have lost since 9/11.
(Lack of) Freedom of Information
In 1966, an idea for keeping Americans better informed on the workings of their government was hatched: the Freedom of Information Act (FOIA). Strengthened in 1974, it began with the premise that, except for some obvious categories (like serious national security matters and personal information), the position of the government should be: everything it does is available to the public. Like the Bill of Rights, which made specific the limits of government, FOIA began with a presumption that it was the government’s duty to make information available — and quickly — to the people, unless a convincing case could be made otherwise. The default position of the FOIA switch was set to ON.
Three decades later, the FOIA system works far differently. Agencies are generally loath to release documents of any sort and instead put their efforts into creating roadblocks to legitimate requests. Some still require signatures on paper. (The State Department notes, “Requests for personal information cannot be submitted electronically and should be submitted by mail.”) Others demand hyper-detailed information like the precise dates and titles of documents whose dates and titles may be classified and unavailable. The NSA simply denies almost all FOIA requests out of hand, absent a court order.
Most federal agencies now regard the deadline mandated for a response as the time period to send out a “request received” note. They tend to assign only a few staff members to processing requests, leading to near-endless delays. At the State Department, most FOIA work is done on a part-time basis by retirees. The CIA won’t directly release electronic versions of documents. Even when a request is fulfilled, “free” copying is often denied and reproduction costs exaggerated.
In some cases, the requested records have a way of disappearing or are simply removed. The ACLU’s experience when it filed an FOIA-style request with the Sarasota police department on its use of the cell phone surveillance tool Stingray could be considered typical. The morning the ACLU was to review the files, Federal Marshals arrived and physically took possession of them, claiming they had deputized the local cops and made the files federal property. An ACLU spokesperson noted that, in other cases, federal authorities have invoked the Homeland Security Act to prevent the release of records.
John Young, who runs the web site Cryptome and is a steadfast FOIA requester, stated, “Stonewalling, delay, brush-off, lying are normal. It is a delusion for ordinary requesters and a bitch of a challenge for professionals. Churning has become a way of life for FOIA, costly as hell for little results.”
Sealed Lips and the Whistleblower
All government agencies have regulations requiring employees to obtain permission before speaking to the representatives of the people — that is, journalists. The U.S. Intelligence Community has among the most restrictive of these policies, banning employees and contractors completely from talking with the media without prior authorization. Even speaking about unclassified information is a no-no that may cost you your job. A government ever more in lockdown mode has created what one journalist calls a “culture where censorship is the norm.”
So who does speak to Americans about their government? Growing hordes of spokespeople, communications staff, trained PR crews, and those anonymous “senior officials” who pop up so regularly in news articles in major papers.
With the government obsessively seeking to hide or spin what it does, in-the-sunlight contact barred, and those inside locked behind an iron curtain of secrecy, the whistleblower has become the paradigmatic figure of the era. Not surprisingly, anyone who blows a whistle has, in these years, come under fierce attack.
Pick a case: Tom Drake exposing early NSA efforts to turn its spy tools on Americans, Edward Snowden proving that the government has us under constant surveillance, Chelsea Manning documenting war crimes in Iraq and sleazy diplomacy everywhere, John Kiriakou acknowledging torture by his former employer the CIA, or Robert MacLean revealing Transportation Safety Administration malfeasance. In each instance, the threat of jail was quick to surface. The nuclear option against such truthtellers is the Espionage Act, a law that offended the Constitution when implemented in the midst of World War I. It has been resurrected by the Obama administration as a blunt “wartime” tool for silencing and punishing whistleblowers.
The Obama administration has already charged six people under that act for allegedly mishandling classified information. Even Richard Nixon only invoked it once, in a failed prosecution against Pentagon Papers whistleblower Daniel Ellsberg.
Indeed, the very word “espionage” couldn’t be stranger in the context of these cases. None of those charged spied. None sought to aid an enemy or make money selling secrets. No matter. In Post-Constitutional America, the powers-that-be stand ready to twist language in whatever Orwellian direction is necessary to bridge the gap between reality and the king’s needs. In the Espionage Act case of State Department contractor Stephen Kim, a judge departed from previous precedent, ruling that the prosecution need not even show that the information leaked to a Fox news reporter from a CIA report on North Korea could damage U.S. national security or benefit a foreign power. It could still be a part of an “espionage” charge.
A final question might be: How could a law designed almost 100 years ago to stop German spies in wartime have become a tool to silence the few Americans willing to risk everything to exercise their First Amendment rights? When did free speech become a crime?
Self-Censorship and the Press
Each person charged under the Espionage Act in these years was primarily a source for a journalist. The writers of the Bill of Rights chose to include the term “press” in the First Amendment, specifically carving out a special place for journalists in our democracy. The press was necessary to question government officials directly, comment on their actions, and inform the citizenry about what its government was doing. Sadly, as the Obama administration is moving ever more fiercely against those who might reveal its acts or documents, the bulk of the media have acquiesced. Glenn Greenwald said it plainly: too many journalists have gone into a self-censoring mode, practicing “obsequious journalism.”
For example, a survey of reporters showed “the percentage of U.S. journalists endorsing the occasional use of ‘confidential business or government documents without authorization,’ dropped significantly from 81.8% in 1992 to 57.7% in 2013.” About 40% of American journalists would not have published documents like those Edward Snowden revealed.
And the same has been true of the management of newspapers. In mid-2004, James Risen and Eric Lichtblau uncovered George W. Bush’s illegal warrantless eavesdropping program, but the New York Times held the story for 15 months, until after Bush’s reelection. Executives at the Times were told by administration officials that if they ran the story, they’d be helping terrorists. They accepted that. In 2006, the Los Angeles Times similarly gave in to the NSA and suppressed a story on government wiretaps of Americans.
Government Efforts to Stop Journalists
Reporters need sources. Increasingly, the government is classifying just about any document it produces — 92 million documents in 2011 alone. Its intelligence agencies have even classified reports about the over-classification of documents. As a result, journalistic sources are often pressed into discussing, at great personal risk, classified information. Forcing a reporter to reveal such sources discourages future whistleblowing.
In one of the first of a series of attempts to make journalists reveal their sources, former Fox News reporter Mike Levine stated that the Justice Department persuaded a federal grand jury to subpoena him in January 2011. The demand was that he reveal his sources for a 2009 story about Somali-Americans who were secretly indicted in Minneapolis for joining an al-Qaeda-linked group in Somalia. Levine fought the order and the Department of Justice finally dropped it without comment in April 2012. Call it a failed test case.
According to Washington lawyer Abbe Lowell, who defended Stephen Kim, significant amounts of time have been spent by the Department of Justice in the search for a legal rationale for indicting journalists for their participation in exposing classified documents. A crucial test case is James Risen’s 2006 book, State of War, which had an anonymously sourced chapter on a failed CIA operation to disrupt Iran’s nuclear program. When Risen, citing the First Amendment, refused to identify his source or testify in the trial of the former CIA officer accused of being that source, the government sought to imprison him. He responded that the “Obama administration… wants to use this case and others like it to intimidate reporters and whistleblowers. But I am appealing to the Supreme Court because it is too dangerous to allow the government to conduct national security policy completely in the dark.”
In June 2014, the Supreme Court refused to take Risen’s case on appeal, essentially ratifying a U.S. Court of Appeals decision that the First Amendment didn’t protect a reporter from being forced to testify about “criminal conduct that the reporter personally witnessed or participated in.” That decision makes clear that a reporter receiving classified information from a source is part of the crime of “leaking.”
Risen has said he will go to prison rather than testify. It is possible that, having secured the precedent-setting right to send Risen to jail, the government will bring the suspected leaker to trial without calling on him. Attorney General Eric Holder recently hinted that his Justice Department might take that path — a break for Risen himself, but not for reporters more generally who now know that they can be jailed for refusing to divulge a source without hope of recourse to the Supreme Court.
The Descent Into Post-Constitutionalism
As with the King of England once upon a time, many of the things the government now does have been approved in secret, sometimes in secret courts according to a secret body of law. Sometimes, they were even approved openly by Congress. In constitutional America, the actions of the executive and the laws passed by Congress were only legal when they did not conflict with the underlying constitutional principles of our democracy. Not any more. “Law” made in secret, including pretzeled legal interpretations by the Justice Department for the White House, opened the way, for instance, to the use of torture on prisoners and in the Obama years to the drone assassination of Americans. Because such “legalities” remain officially classified, they are, of course, doubly difficult to challenge.
But can’t we count on the usual pendulum swings in American life to change this? There were indeed notable moments in American history when parts of the Constitution were put aside, but none are truly comparable to our current situation. The Civil War lasted five years, with Lincoln’s suspension of habeas corpus limited in geography and robustly contested. The World War II Japanese internment camps closed after three years and the persecuted were a sub-set of Japanese-Americans from the West Coast. Senator McCarthy’s notorious career as a communist-hunter lasted four years and ended in shame.
Almost 13 years after the 9/11 attacks, it remains “wartime.” For the war on terror, the driver, excuse, and raison d’être for the tattering of the Bill of Rights, there is no end in sight. Recently retired NSA head Keith Alexander is typical of key figures in the national security state when he claims that despite, well, everything, the country is at greater risk today than ever before. These days, wartime is forever, which means that a government working ever more in secret has ever more latitude to decide which rights in which form applied in what manner are still inalienable.
The usual critical history of our descent into a post-constitutional state goes something like this: in the panic after the 9/11 attacks, under the leadership of Vice President Dick Cheney with the support of President George W. Bush, a cabal of top government officials pushed through legal-lite measures to (as they liked to say) “take the gloves off” and allow kidnapping, torture, illegal surveillance, and offshore imprisonment along with indefinite detention without charges or trial.
Barack Obama, elected on a series of (false) promises to roll back the worst of the Bush-era crimes, while rejecting torture and closing America’s overseas “black sites,” still pushed the process forward in his own way. He expanded executive power, emphasized drone assassinations (including against American citizens), gave amnesty to torturers, increased government secrecy, targeted whistleblowers, and heightened surveillance. In other words, two successive administrations lied, performed legal acrobatics, and bullied their way toward a kind of absolute power that hasn’t been seen since the days of King George. That’s the common narrative and, while not wrong, it is incomplete.
Missing Are the People
One key factor remains missing in such a version of post-9/11 events in America: the people. Even today, 45% of Americans, when polled on the subject, agree that torture is “sometimes necessary and acceptable to gain information that may protect the public.” Americans as a group seem unsure about whether the NSA’s global and domestic surveillance is justified, and many remain convinced that Edward Snowden and the journalists who published his material are criminals. The most common meme related to whistleblowers is still “patriot or traitor?” and toward the war on terror, “security or freedom?”
It’s not that Americans are incorrect to be fearful and feel in need of protection. The main thing we need to protect ourselves against, however, is not the modest domestic threat from terrorists, but a new king, a unitary executive that has taken the law for its own, aided and abetted by the courts, supported by a powerful national security state, and unopposed by a riven and weakened Congress. Without a strong Bill of Rights to protect us — indeed, secure us — from the dangers of our own government, we will have gone full-circle to a Post-Constitutional America that shares much in common with the pre-constitutional British colonies.
Yet there is no widespread, mainstream movement of opposition to what the government has been doing. It seems, in fact, that many Americans are willing to accept, perhaps even welcome out of fear, the death of the Bill of Rights, one amendment at a time.
We are the first to see, in however shadowy form, the outlines of what a Post-Constitutional America might look like. We could be the last who might be able to stop it.
The Obama administration opened a new front in its ongoing war on whistleblowers. It’s taking its case against one man, former Transportation Security Administration (TSA) Air Marshal Robert MacLean, all the way to the Supreme Court. So hold on, because we’re going back down the rabbit hole with the Most Transparent Administration ever.
Despite all the talk by Washington insiders about how whistleblowers like Edward Snowden should work through the system rather than bring their concerns directly into the public sphere, MacLean is living proof of the hell of trying to do so. Through the Supreme Court, the Department of Justice (DOJ) wants to use MacLean’s case to further limit what kinds of information can qualify for statutory whistleblowing protections. If the DOJ gets its way, only information that the government thinks is appropriate — a contradiction in terms when it comes to whistleblowing — could be revealed. Such a restriction would gut the legal protections of the Whistleblower Protection Act and have a chilling effect on future acts of conscience.
Having lost its case against MacLean in the lower courts, the DOJ is seeking to win in front of the Supreme Court. If heard by the Supremes — and there’s no guarantee of that — this would represent that body’s first federal whistleblower case of the post-9/11 era. And if it were to rule for the government, even more information about an out-of-control executive branch will disappear under the dark umbrella of “national security.”
On the other hand, should the court rule against the government, or simply turn down the case, whistleblowers like MacLean will secure a little more protection than they’ve had so far in the Obama years. Either way, an important message will be sent at a moment when revelations of government wrongdoing have moved from the status of obscure issue to front-page news.
The issues in the MacLean case — who is entitled to whistleblower protection, what use can be made of retroactive classification to hide previously unclassified information, how many informal classification categories the government can create bureaucratically, and what role the Constitution and the Supreme Court have in all this — are arcane and complex. But stay with me. Understanding the depths to which the government is willing to sink to punish one man who blew the whistle tells us the world about Washington these days and, as they say, the devil is in the details.
Robert MacLean, Whistleblower
MacLean’s case is simple — and complicated.
Here’s the simple part: MacLean was an air marshal, flying armed aboard American aircraft as the last defense against a terror attack. In July 2003, all air marshals received a briefing about a possible hijacking plot. Soon after, the TSA, which oversees the marshals, sent an unencrypted, open-air text message to their cell phones cancelling several months of missions for cost-cutting reasons. Fearing that such cancellations in the midst of a hijacking alert might create a dangerous situation for the flying public, MacLean worked his way through the system. He first brought his concerns to his supervisor and then to the Department of Homeland Security’s inspector general. Each responded that nothing could be done.
After hitting a dead end, and hoping that public pressure might force the TSA to change its policy, MacLean talked anonymously to a reporter who broadcast a critical story. After 11 members of Congress pitched in, the TSA reversed itself. A year later, MacLean appeared on TV in disguise to criticize agency dress and boarding policies that he felt made it easier for passengers to recognize marshals who work undercover. (On your next flight keep an eye out for the young man in khakis with a fanny pack and a large watch, often wearing a baseball cap and eyeing boarders from a first class seat.) This time the TSA recognized MacLean’s voice and discovered that he had also released the unclassified 2003 text message. He was fired in April 2006.
When MacLean contested his dismissal through internal government channels, he discovered that, months after firing him, the TSA had retroactively classified the text message he had leaked. Leaking classified documents is more than cause enough to fire a federal worker, and that might have been the end of it. MacLean, however, was no typical cubicle-dwelling federal employee. An Air Force veteran, he asserted his status as a protected whistleblower and has spent the last seven years marching through the system trying to get his job back.
How Everything in Government Became Classified
The text message MacLean leaked was retroactively classified as “security sensitive information” (SSI), a designation that had been around for years but whose usage the TSA only codified via memo in November 2003. When it comes to made-up classifications, that agency’s set of them proved to be only one of 28 known versions that now exist within the government bureaucracy. In truth, no one is sure how many varieties of pseudo-classifications even exist under those multiple policies, or how many documents they cover as there are no established reporting requirements.
By law there are officially only three levels of governmental classification: confidential, secret, and top secret. Other indicators, such as NOFORN and ORCON, seen for instance on some of the NSA documents Edward Snowden released, are called “handling instructions,” although they, too, function as unofficial categories of classification. Each of the three levels of official classification has its own formal definition and criteria for use. It is theoretically possible to question the level of classification of a document. However much they may be ignored, there are standards for their declassification and various supervisors can also shift levels of classification as a final report, memo, or briefing takes shape. The system is designed, at least in theory and occasionally in practice, to have some modicum of accountability and reviewability.
The government’s post-9/11 desire to classify more and more information ran head on into the limits of classification as enacted by Congress. The response by various agencies was to invent a proliferation of designations like SSI that would sweep unclassified information under the umbrella of classification and confer on ever more unclassified information a (sort of) classified status. In the case of the TSA, the agency even admits on its own website that a document with an SSI stamp is unclassified, but prohibits its disclosure anyway.
Imagine the equivalent at home: you arbitrarily establish a classification called Spouse Sensitive Information that prohibits your partner from seeing the family bank statements. And if all this is starting to make no sense, then you can better understand the topsy-turvy world Robert MacLean found himself in.
MacLean Wins a Battle in Court
In 2013, after a long series of civil service and legal wrangles, the United States Court of Appeals for the Federal Circuit handed down a decision confirming the government’s right to retroactively classify information. This may make some sense — if you squint hard enough from a Washington perspective. Imagine a piece of innocuous information already released that later takes on national security significance. A retroactive classification can’t get the toothpaste back in the tube, but bureaucratically speaking it would at least prevent more toothpaste from being squeezed out. The same ruling, of course, could also be misused to ensnare someone like MacLean who shared unclassified information.
The court also decided that, retrospective classification or not, MacLean was indeed entitled to protection under the Whistleblower Protection Act of 1989. That act generally limits its protections to “disclosures not specifically prohibited by law,” typically held to mean unclassified material. This, the court insisted, was the category MacLean fit into and so could not be fired. The court avoided the question of whether or not someone could be fired for disclosing retroactively classified information and focused on whether a made-up category like SSI was “classified” at all.
The court affirmed that laws passed by Congress creating formal classifications like “top secret” trump regulations made up by executive branch bureaucrats. In other words, as the Constitution intended, the legislative branch makes the laws and serves as a check and balance on the executive branch. Congress says what is classified and that say-so cannot be modified via an executive branch memo. One of MacLean’s lawyers hailed the court’s decision as restoring “enforceability for the Whistleblower Protection Act’s public free speech rights. It ruled that only Congress has the authority to remove whistleblower rights. Agency-imposed restraints are not relevant for whistleblower protection rights.”
The ruling made it clear that the TSA had fired MacLean in retaliation for a legally protected act of whistleblowing. He should have been offered his job back the next day.
Not a Happy Ending But a Sad New Beginning
No such luck. Instead, on January 27, 2014, the Department of Justice petitioned the Supreme Court to overturn the lower court’s decision. If it has its way, the next time a troublesome whistleblower emerges, the executive need only retroactively slap a non-reviewable pseudo-classification on whatever information has been revealed and fire the employee. The department is, then, asking the Supreme Court to grant the executive branch the practical power to decide whether or not a whistleblower is entitled to legal protection. The chilling effect is obvious.
In addition, the mere fact that the DOJ is seeking to bring the case via a petition is significant. Such petitions, called writs of certiorari, or certs, ask that the Supreme Court overturn a lower court’s decision. Through the cert process, the court sets its own agenda. Some 10,000 certs are submitted in a typical year. Most lack merit and are quickly set aside without comment. Typically, fewer than 100 of those 10,000 are chosen to move forward for a possibly precedent-setting decision. However, only a tiny number of all the certs filed are initiated by the government; on average, just 15 in a Supreme Court term.
It’s undoubtedly a measure of the importance the Obama administration gives to preserving secrecy above all else that it has chosen to take such an aggressive stance against MacLean — especially given the desperately low odds of success. It will be several months before we know whether the court will hear the case.
This Is War
MacLean is simply trying to get his old air marshal job back by proving he was wrongly fired for an act of whistleblowing. For the rest of us, however, this is about much more than where MacLean goes to work.
The Obama administration’s attacks on whistleblowers are well documented. It has charged more of them — seven — under the Espionage Act than all past presidencies combined. In addition, it recently pressured State Department whistleblower Stephen Kim into a guilty plea (in return for a lighter sentence) by threatening him with the full force of that act. His case was even more controversial because the FBI named Fox News’s James Rosen as a co-conspirator for receiving information from Kim as part of his job as a journalist. None of this is accidental, coincidental, or haphazard. It’s a pattern. And it’s meant to be. This is war.
MacLean’s case is one more battle in that war. By taking the extraordinary step of going to the Supreme Court, the executive branch wants, by fiat, to be able to turn an unclassified but embarrassing disclosure today into a prohibited act tomorrow, and then use that to get rid of an employee. They are, in essence, putting whistleblowers in the untenable position of having to predict the future. The intent is clearly to silence them before they speak on the theory that the easiest leak to stop is the one that never happens. A frightened, cowed workforce is likely to be one result; another — falling into the category of unintended consequences — might be to force more potential whistleblowers to take the Manning/Snowden path.
The case against MacLean also represents an attempt to broaden executive power in another way. At the moment, only Congress can “prohibit actions under the law,” something unique to it under the Constitution. In its case against MacLean, the Justice Department seeks to establish the right of the executive and its agencies to create their own pseudo-categories of classification that can be used to prohibit actions not otherwise prohibited by law. In other words, it wants to trump Congress. Regulation made by memo would then stand above the law in prosecuting — or effectively persecuting — whistleblowers. A person of conscience like MacLean could be run out of his job by a memo.
In seeking to claim more power over whistleblowers, the executive also seeks to overturn another principle of law that goes by the term ex post facto. Laws are implemented on a certain day and at a certain time. Long-held practice says that one cannot be punished later for an act that was legal when it happened. Indeed, ex post facto criminal laws are expressly forbidden by the Constitution. This prohibition was written in direct response to the injustices of British rule at a time when Parliamentary laws could indeed criminalize actions retrospectively. While some leeway exists today in the U.S. for ex post facto actions in civil cases and when it comes to sex crimes against children, the issue as it affects whistleblowers brushes heavily against the Constitution and, in a broader sense, against what is right and necessary in a democracy.
When a government is of, by, and for the people, when an educated citizenry (in Thomas Jefferson’s words) is essential to a democracy, it is imperative that we all know what the government does in our name. How else can we determine how to vote, who to support, or what to oppose? Whistleblowers play a crucial role in this process. When the government willfully seeks to conceal its actions, someone is required to step up and act with courage and selflessness.
That our current government has been willing to fight for more than seven years — maybe all the way to the Supreme Court — to weaken legal whistleblowing protections tells a tale of our times. That it seeks to silence whistleblowers at a moment when their disclosures are just beginning to reveal the scope of our unconstitutional national security state is cause for great concern. That the government demands whistleblowers work within the system and then seeks to modify that same system to thwart them goes beyond hypocrisy.
This is the very definition of post-Constitutional America where legality and illegality blur — and always in the government’s favor; where the founding principles of our nation only apply when, as, and if the executive sees fit. The devil is indeed in the details.
In the world of handling America’s secrets, words – classified, secure, retroactive – have special meanings. I held a Top Secret clearance at the State Department for 24 years and was regularly trained in protecting information as part of that privilege. Here is what some of those words mean in the context of former Secretary of State Hillary Clinton’s emails.
The Inspectors General for the State Department and the intelligence community issued a statement saying Clinton’s personal email system contained classified information. This information, they said, “should never have been transmitted via an unclassified personal system.” The same statement voiced concern that a thumb drive held by Clinton’s lawyer also contains this same secret data. Another report claims the U.S. intelligence community is bracing for the possibility that Clinton’s private email account contains multiple instances of classified information, with some data originating at the CIA and NSA.
A Clinton spokesperson responded that “Any released emails deemed classified by the administration have been done so after the fact, and not at the time they were transmitted.” Clinton claims unequivocally her email contained no classified information, and that no message carried any security marking, such as Confidential or Top Secret.
The key issue in play with Clinton is that it is a violation of national security to maintain classified information on an unclassified system.
Classified, secure, computer systems use a variety of electronic (often generically called TEMPESTed) measures coupled with physical security (special locks, shielded conduits for cabling, armed guards) that differentiate them from an unclassified system. Some of the protections are themselves classified, and unavailable in the private sector. Such standards of protection are highly unlikely to be fulfilled outside a specially designed government facility.
Yet even if retroactive classification was applied only after Clinton hit “send” (and State’s own Inspector General says it wasn’t), she is not off the hook.
What matters in the world of secrets is the information itself, which may or may not be marked “classified.” Employees at the highest levels of access are expected to apply the highest levels of judgment, based on the standards in Executive Order 13526. The government’s basic nondisclosure agreement makes clear the rule is “marked or unmarked classified information.”
In addition, the use of retroactive classification has been tested and approved by the courts, and employees are regularly held accountable for releasing information that was unclassified when they released it, but classified retroactively.
It is a way of doing business inside the government that may at first seem nonsensical, but in practice is essential for keeping secrets.
For example, if an employee were to be handed information sourced from an NSA intercept of a foreign government leader, somehow not marked as classified, she would be expected to recognize the sensitivity of the material itself and treat it as classified. In other cases, an employee might hear something sensitive and be expected to treat the information as classified. The emphasis throughout the classification system is not on strict legalities and coded markings, but on judgment. In essence, employees are required to know right from wrong. It is a duty, however subjective in appearance, one takes on in return for a security clearance.
“Not knowing” would be an unexpected defense from a person with years of government experience.
In addition to information sourced from intelligence, Clinton’s email may contain some back-and-forth discussions among trusted advisors. Such emails are among the most sensitive information inside State, and are otherwise always considered highly classified. Adversaries would very much like to know America’s bargaining strategy. The value of such information is why, for example, the NSA electronically monitored heads of state in Japan and Germany. The Freedom of Information Act recognizes the sensitivity of internal deliberation, and includes a specific exemption for such messages, blocking their release, even years after a decision occurred. If emails discussing policy or decisions were traded on an open network, that would be a serious concern.
The problem for Clinton may be particularly damaging. Every email sent within the State Department’s own systems contains a classification; an employee technically cannot hit “send” without one being applied. Just because Clinton chose to use her own hardware does not relieve her or her staff of this requirement.
Some may say even if Clinton committed security violations, there is no evidence the material got into the wrong hands – no blood, no foul. Legally that is irrelevant. Failing to safeguard information is the issue. It is not necessary to prove the information reached an adversary, or that an adversary did anything harmful with the information for a crime to have occurred. See the cases of Chelsea Manning, Edward Snowden, Jeff Sterling, Thomas Drake, John Kiriakou or even David Petraeus. The standard is “failure to protect” by itself.
None of these laws, rules, regulations or standards fall under the rubric of obscure legalities; they are drilled into persons holding a security clearance via formal training (mandatory yearly for State Department employees), and are common knowledge for the men and women who handle America’s most sensitive information. For those who use government computer systems, electronic tools enforce compliance and security personnel are quick to zero in on violations.
A mantra inside government is that protecting America’s secrets is everyone’s job. That was the standard against which I was measured throughout my career and the standard that should apply to everyone entrusted with classified information.