Another Bad Contractor with a Security Clearance

This is lengthy because it includes an indictment of Donald J. Sachtleben, another cleared government employee who gives us reason to suspect the security clearance process of the Federal Government is not all its cracked up to be.  I encourage you to read it, if you have any involvement in classified work in the government.

This is the guy I wrote about in my latest book.  He got information about the person who built a bomb delivered to the FBI for analysis.  Several news reports say this bomb was collected by a person, who has since been named, and risked his life getting it out.

Sachtleben was not an FBI employee at the time the crime was committed;  he was a cleared contractor.

The press has loudly claimed that this Justice Department prosecution raised the spectre of a complete loss of protection of sources, yet the only way this person was discovered was his contact with Reporter A in the indictment.  Reporter A's sources' telephone numbers were gathered as a part of that investigation, so we all know who he is now.

Sachtleben would never have been prosecuted had it not been for those phone records, so reporters want to make sure that doesn't happen again.

Read the whole thing carefully and look at the relationship between the reporter, the contractor and the disclosure of classified information.  Then, tell me we need new laws to protect the press.

We need new laws to protect us from people who have set out to use the press as a shield to collect things that will get our sources and methods in the public domain.  Snowden is not the first of his kind, nor likely to be the last.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

UNITED STATES OF AMERICA  No. v. 3 DONALD JOHN SACHTLEBEN,  Defendant.  STATEMENT OF OFFENSE Should this matter proceed to trial, the United States of America would prove the following facts beyond a reasonable doubt: A Introduction 1. On or about May 2, 2012, the defendant DONALD JOHN SACHTLEBEN having authorized access to national defense information relating to a disrupted suicide bomb attack on a U.S.--bound airliner by the Yemen-based terrorist organization Al--Qaeda in the Arabian Peninsula and the recovery by the United States of a bomb in connection with that plot in April 2012 (referred to hereinafter as "the bomb"), willfully disclosed such national defense information to a person not entitled to receive it, namely a reporter with a national news organization ("Reporter At the time of his unauthorized disclosure, SACHTLEBEN had reason to believe that his unauthorized disclosure of such national defense information could be used to the injury of the United States or to the advantage of a foreign nation. In or about May 2012, SACHTLEBEN also willfully possessed and retained national defense information in his residence in Carmel, Indiana, including an intelligence report classified at the SECRET level that remains so classified to this day.

Defendant's Background  

2. SACHTLEBEN was employed by the Federal Bureau of Investigation from on or about 1983 through 2008. In the course of his career, SACHTLEBEN was a Special Agent Bomb Technician assigned to many FBI Major Cases involving terrorist attacks, including the Oklahoma City bombing, the first World Trade Center bombing, the Unabomber attacks, the United States Embassy bombings in East Africa, the U.S.S. COLE bombing, and the attacks of September 11, 2001. Among other assignments, SACHTLEBEN was assigned to the Explosives Unit at the FBI Laboratory in Quantico, Virginia Lab"). SACHTLEBEN held a TOP SECRET security clearance as an FBI employee on account of his official responsibilities at the FBI. As a result, SACHTLEBEN had regular access to classified and national defense information relating to the BI's activities, as well as the 

activities of other members of the United States Intelligence Community.  

3. In or about 2008, SACHTLEBEN retired from the FBI and was rehired as a contractor. SACHTLEBEN 

maintained his TOP SECRET security clearance as an FBI contractor on account of his official 

responsibilities at the FBI. As a result, SACHTLEBEN continued to have regular access to classified and 

national defense information relating to the FBI's activities, as well as the activities of other members of the United States Intelligence Community. As a contractor, SACHTLEBEN routinely visited the FBI Lab. SACHTLEBEN was employed as an FBI contractor until on or about May 11, 2012.  

4. Beginning in or about 1983, in connection with the start of his employment with the FBI, SACHTLEBEN 

entered into various non--disclosure agreements with the United States, obligating him not to disclose 

national defense information to any unauthorized person and advising him that any such unauthorized 

disclosure could constitute a violation of United States criminal laws, including Title 18, United States Code, Section 793. SACHTLEBEN entered into such non-disclosure agreements both as an FBI employee and as an FBI contractor. The scope of these non-disclosure agreements encompasses the national defense 

information referenced in this Statement of Offense. Defendant's Relationship with Reporter A  

5. Beginning in or about the fall of 2009, SACHTLEBEN developed a source-reporter relationship with 

Repoter A. Their source-reporter relationship initially focused on SACHTLEBEN's contract work on the FBI's National Improvised Explosives amiliarization training program. Their source-reporter relationship 

quickly developed into other areas beyond the NIEF program. For example, from in or about January 2010 

through in or about May 2012, in emails, text messages, and conversations, SACHTLEBEN provided Reporter A with information about explosives used in terrorist plots or attacks and the FBI's analysis of such 

explosives. While doing so, SACHTLEBEN repeatedly requested Reporter A to keep his true identity and his relationship with Reporter A protected and confidential. When discussing in an email exchange how to 

refer to SACHTLEBEN as an anonymous source for an article to be published, SACHTLEBEN asked Reporter A 

not refer to him as a contractor because there was a "[p]retty small number of us." (The emails and text messages between SACHTLEBEN and Reporter A referenced in this Statement of Offense were obtained from 

SACHTLEBEN's electronic devices).  Defendant's Unauthorized Disclosure of National Defense Information  

6. On or about April 30, 2012, following the disruption of a suicide bomb attack on a U.S.--bound airline by AQAP and the recovery by the United States of a bomb in connection  with that plot, the bomb arrived at the FBI Lab for forensic analysis. 

7. On or about April 30, 2012, at approximately 6:30 ABC World News Tonight broadcast a news story which stated, in part, that for the past year United States and European officials had warned that AQAP's 

master bomb-maker, Ibrahim al-Asiri, had been designing surgically implanted body bombs to get past 

airport security, and that there was concern that AQAP may soon try to explode a U.S.-bound aircraft with explosives hidden inside the bodies of terrorists.  

8. On or about April 30, 2012, later that evening, beginning at approximately 7: 14  SACHTLEBEN and 

Reporter A exchanged text messages about al--Asiri and Reporter A's speculation about the FBI's recovery of a surgically implanted body bomb (also known as a "cavity bomb"). (Note: the bomb referenced in 

Paragraph 6 above was not a surgically  implanted body bomb or cavity bomb.) These text messages were as follows:  Date Time Originating Terminating Content of Text Message Cellular Phone Cellular Phone  4/30/2012 7:14 p.m. Reporter A SACHTLEBEN Al-Asiri is up to his old tricks. I wonder if ur boys got a hold of a cavity bomb  4/30/2012 7: l4 p.m. Reporter A SACHTLEBEN   4/30/2012 7:15 p.m. SACHTLEBEN Reporter A Yikes. Remind me to bring sum purell to the lab  4/30/2012 7: 16 p.m. Reporter A SACHTLEBEN Not totally sure though  

9. On or about May 1, 2012, beginning at approximately 9:48 SACHTLEBEN and Reporter A exchanged two more text messages. These text messages were as follows:  Date Time Originating Terminating Content of Text Message Cellular Phone Cellular Phone 5/1/2012 9:48 am. SACHTLEBEN Reporter A Hmm. Methinks the 10am news 

conf may be related 5/1/2012 9:51 a.m. Reporter A SACHTLEBEN Ah!

10. On or about May 1, 2012, at approximately 10:00 the FBI held a news conference concerning the arrest of five men in Cleveland, Ohio, who were charged with plotting a bomb attack on a bridge in Ohio. This FBI news conference had nothing to do with the bomb referenced in Paragraph 6 above. 

11. On or about May 1, 2012, just prior to departing from the Indianapolis airport and upon landing at the Washington-Dulles airport for a previously planned trip to the FBI. Lab the following day May 2, 2012), SACHTLEBEN sent two more text messages to Reporter A.  These texts were as follows:  Date Time Originating Terminating Content of Text Message Cellular Phone Cellular Phone  5/ 1/2012 9:52 a.m. SACHTLEBEN Reporter A Just abt to take off. Will curious to coverage when i land at dulles. Hope that tsa doesnt get out the rubber gloves and ky  5/1/2012 12:49 p.m. SACHTLEBEN Reporter A Got that one wrong. A lil surprised they wrkin 24 hr shifts cuz of those mutts. Still sumthin else brewin. Will find out tomorrow (Emphasis added.) 

12. On or about May 2, 2012, at approximately 8:39 SACHTLEBEN used his FBI- issued badge to enter the FBI Lab. Among other things, SACHTLEBEN logged into the FBI's classified computer system from a computer terminal located within the FBI Lab in an administrative space designated for the Explosives Unit. That administrative space was directly across the hallway from the examination space for the Explosives Unit, where the bomb was then being examined. SACHTLEBEN also used his FBI-issued badge to enter the examination space for the Explosives Unit. SACHTLEBEN did not access any documents on the FBI's classified  computer system about the bomb and did not sign the sign-in sheet for access to a specific room within the examination space for the Explosives Unit designated for the examination of the bomb. 

13. On or about May 2, 2012, at approximately 10:25 SACHTLEBEN called Reporter A and spoke with him for a little over two minutes. In that call, SACHTLEBEN disclosed to Reporter A national defense information that he had gathered that morning, including that the FBI was then engaged in an ongoing, secretive, and sensitive analysis of the bomb; analysis which involved other parts of the United States Government besides the FBI. At that time, SACHTLEBEN believed that the national defense information that he disclosed to Reporter A was classified at least at the SECRET level. 

14. Approximately two-and-a--half hours later, Reporter A and another reporter from Reporter A's news organization contacted multiple United States Government officials and stated that they knew the following facts: (1) the United States had intercepted a bomb from Yemen; (2) the FBI was analyzing the bomb; and (3) they believed, but had not confirmed, that the bomb was linked to AQAP's premier bomb-maker, Ibrahim al-Asiri. The facts that these reporters stated that they knew as of May 2, 2012 (namely, 1) and (2) in the immediately preceding sentence) constituted classified and national defense information as of that date. 

15. Beginning on May 7, 2012, multiple news organizations published articles about the disrupted suicide bomb attack and recovery of the bomb. The lead article was published by Reporter A's news organization on May 7, 2012, at approximately 4 and was entitled,  CIA Thwarts New al-Qaida Underwear Bomb Plot." Thereafier, Reporter A's news organization and other news organizations published additional articles and/or broadcast television reports about the disrupted suicide bomb attack and recovery of the bomb (referred to collectively  hereinafter as the "Media Reports").

16. Following the publication of the Media Reports, SACHTLEBEN continued to provide information to Reporter A about the bomb.  17. SACHTLEBEN was never authorized, directly or indirectly, by the United States Govemment to deliver, communicate, or transmit any classified or national defense infonnation to Reporter A or any other member of the media.  Defendant's Unauthorized Possession and Retention of National Defense Information  18. From a date uncertain to on or about July 9, 2013, SACHTLEBEN willfully possessed and retained in his residence in Carmel, Indiana, on numerous pieces of electronic media, United States Govemment documents bearing classification markings in their headers or footers or in their individually classified paragraph portion markings. The majority of these documents bore SECRET classification markings. 

19. From a date uncertain to in or about May 2012, SACHTLEBEN willfully possessed and retained in his residence in Carmel, Indiana, a containing, among other things, a Central Intelligence Agency intelligence report, bearing a classification marking and the date November 2, 2006. The CIA has conducted a formal classification review of that intelligence report and determined that the report was and remains properly marked at the classification level. The  was seized in or about May 2012, in connection with an unrelated criminal investigation of SACHTLEBEN involving his possession and distribution of child pornography. 

20. "Classified" information is defined by Executive Order 13526 ("Executive Order") as information in any form that: (1) is owned by, produced by or for, or under control of the United States Government; (2) falls within one or more of the categories set forth in the Executive  Order; and (3) is classified by an original classification authority who determines that its  unauthorized disclosure reasonably could be expected to result in damage to the national security which includes defense against transnational terrorism. Where such unauthorized disclosure reasonably could be expected to cause "exceptionally grave damage" to the national security, the information is classified as Where such unauthorized disclosure reasonably could be expected to cause "serious damage" to the national security, the information is classified as Where such unauthorized disclosure reasonably could be expected to cause "damage" to the national security, the information is classified as  The designation means that a classified document cannot be shared with any foreign nationals or foreign govemments. 

Conclusion 

21. SACHTLEBEN engaged in the conduct described above knowingly and willfully, and not by accident, mistake, or any other innocent reason. In disclosing information to Reporter A, SACHTLEBEN did not believe that he was exposing government waste, fraud, abuse, or any  other kind of govemment malfeasance or misfeasance.  This Statement of Offense is not intended to be a complete recitation of all of the facts  known to the United States or SACHTLEBEN, but is, instead, intended to provide a sufficient  factual basis for the defendant's plea of guilty to one count of Unauthorized Disclosure of  National Defense Information, in violation of 18 U.S.C. 793(d), and one count of Unauthorized  Possession and Retention of National Defense Information, in violation of 18 U.S.C. 793(6).  Respectfully submitted,            

SEPH HOGSETT United States Attorney for the Southern District of Indiana 

SteVeFD./DeBrota'  Senior Litigation Counsel

Journalism and Soldiers Who Die for Freedom of the Press

In an August 7, 2013  Wall Street Journal article, Jess Bravin had a story called Echoes from a Past Leak Probe, describing a little known event in World War II, involving Stanley Johnston, an embedded reporter (before they called them that) from the Chicago Tribune.  Stanley apparently stumbled upon an intelligence file, presumably a classified one,  while travelling with the Pacific Fleet, that gave him the idea that our Navy had broken the Japanese naval codes and knew in advance what they were going to do.  This was in 1942, at a time when the war could have gone either way in the Pacific and Allied lives were at risk in a number of places. 

Johnston wrote the story, apparently got it past censors who, in those days, were supposed to be at watch for this type of thing, and the Tribune published it.   This is certainly what we call Freedom of the Press.  It far exceeded any damage that might be done by similar incidents today.  Edward Snowden worked with Glenn Greenwald at the Guardian and Bradley Manning with Wikileaks, giving them cover for the release of information that they knew was important to National Security.  Manning was not convicted of aiding the enemy, and there is a good chance that Snowden wouldn’t be either.  A few would argue that neither one of them, compared to Johnston, had the same level of risk to soldiers in the field, fighting a known enemy. 

The law was on Johnston’s side, according to the analysis done by the Justice Department, though the same type of teeth-gnashing done by the Justice Department today, made James Rosen, Fox News, a co-conspirator in a case of apparent espionage.  That case was nowhere near as dangerous as our knowledge of Japan’s codes.  Perhaps they are trying to break new ground in the Attorney General’s office.  That might not be a such a bad idea, though there are much better ways to go about it.  It was clumsy, at best.

The courts seem to want to shy away from defining what is legitimate conduct by journalists, but they have expanded the covered definitions of who is a journalist to almost anyone who can type.  There is a good question about whether giving national security secrets to an Internet-connected world is journalism.  Is giving the story to the Chicago Tribune to run, knowing the consequences to our naval forces in the Pacific, something other than journalism?  We need to reexamine what journalism is, and put law behind the limitations that would infer. 

Freedom of Speech is my Constitutional right, but there are limits on what that allows.  I can’t put other people at risk by yelling “Fire” in a crowded theater.  I can’t claim someone is behaving in a particular way, if it is libelous.  Yet, in the name of journalism, we can allow a citizen of the United States to give away secrets that will harm other persons in our country.  Let the Justice Department focus on the right aspect of what constitutes journalism.  We need new laws that will limit this kind of behavior or we won’t have any secrets left.

You can read more about the keeping of secrets in Keeping Secrets, The White House, the Military and Business Leaks that Threaten our National Security, available through Amazon.  

USIS, Navy Yard killer, Snowden's security clearances

Last week, for those who missed it, the Chief of Information for the Navy was on CNN describing how  USIS had managed to miss another one and grant a security clearance to someone who shouldn't have one.  These are the same people who did Snowden's background check, leading someone who didn't know much about security clearances, to conclude this company was terrible at their job.  Based on the information we have, I wonder.

First, as anyone in government security knows, USIS doesn't grant anyone a security clearance.  They do a background investigation and send the results to the government for adjudication at something called a Central Adjudication Facility (CAF).  The people there decide whether the person has enough in their background to warrant a denial.  Less than 1% of the people who apply for clearances, don't get one.  So, it would not happen very often that the CAF would say "denied".  I did a study once on why clearances were suspended (what we wish would have happened when that report came in from New England saying our Navy suspect was hearing voices), denied, or revoked (what would have happened if either of them would have done enough to get the CAF to take away their clearances).  None of these things happened, because the government didn't do its job.

There are a lot of very bad people in our population who do things to children, spouses, animals, or themselves, that qualify as bizarre, deviant, insane, or criminal and none of those things will necessarily be reason enough to take that person's security clearance away.  Somebody has to report what happened, and we seem to be so hung up on privacy, that mental illness or deviant behavior is covered up in "rehabilitation" or "privacy protection" neither one of which have much to do with whether a person can have a security clearance.  We used to suspend access to classified information until the matters in question were investigated;  now, they seem to be saying "don't tell anyone and protect his privacy" when that isn't appropriate to either of these cases.

I remember a case where one of my enlisted Airmen died during the night, because he had taken drugs and drank beer to excess.  After we buried him, I found out that he had been on an alcohol rehab program and should not have been working.  On his job, every day, he carried a gun.  One of our HR people did not want to see us "stigmatize him" by taking his gun away, so they decided not to tell us about it.  That was almost 30 years ago, and things have not gotten better.

When an adult rapes a child, we don't feel much regret in reporting that incident to the police, Child Protective Services and the government agency the person works for, if they have a clearance.  But, it gets to be less clear how far that reporting would go, when a person says "I hear voices and they are telling me to do something to my mother."  Do you know if you would report this, if it happened at work, if you heard him say it, and if you believed it wasn't a joke being played on a friend.

When a person works for a cleared contractor, there is something that covers this in a reporting requirement called "adverse information".  So, if this happens at work, and I hear it, I am required to report that to the Security Officer of my company.  If my company hears about it, they are required to report it to the government sponsor of the clearance.  In my experience, neither one of those things is happening with any regularity, and none of the government agencies that should be, are overseeing it.  They all come up with excuses for why reporting is not such a good idea.  Can I get sued?  Can the Agency get sued?  Will the union bring a grievance?  All of these things can be true, however unlikely. When it is a clear crime, the person is arrested and carted off to jail, most times they will report.  Otherwise, it is hit and miss, on something that might stop the kind of behavior we see in the two cases I mention.

These are clear examples of one thing:  Privacy is not paramount in public safety or National Security.  We are looking at the issues involved in each case and we are looking at the problem too closely.  What did anyone know about these individuals that should have been reported?  What did they actually report?  What, if anything, did the government do for either one of them to make the situation better?

Are we going to change the clearance process to get it back under control of the people who employ these folks?  Are we going to require adverse information reporting on a more stringent basis?  Are we going to look at the reasons why clearances are granted and denied?  Of course we are.  It is fairly obvious that we don't do the kinds of reporting that make a security clearance anything other than a rubber stamp.  And, we might also guess that those health care professionals in states that should be reporting mental health issues to keep guns out of the hands of those people don't do any better at their jobs than the security professionals do at theirs.

You can read more in Keeping Secrets, The White House, the Military and Business Leaks that Threaten our National Security.   Amazon books:  

Reporters as Co-conspirators

There has been a running commentary on the Justice Department request for telephone numbers of reporters, especially James Rosen, Fox News.  The President indicated he supports the press, which was interesting because it was his Attorney General that signed off on the order.   A subpoena was issued requesting a number of telephone numbers at AP, and Rosen’s was one of them.  The FBI also requested a court order for Google to provide wire and electronic communications for a “national news reporter” whose name and e-mail accounts were redacted, with his name later released.  He was indicted as a co-conspirator in a criminal case, which set off alarm bells in the entire press corps. 

This case is emotional for reporters, because it indicates they are being treated like those who leak classified information to the press, and they don’t like the association.  Legally, nobody challenges the rights of the press, but the definition of who gets to act like Press representatives, has expanded to the point that anyone, including me, can be a journalist.  This is where we seem to have gotten off track.  It wasn’t the Justice Department who got us there. 

Apple vs Does, a California Sixth Circuit case, is old, but interesting from the standpoint of expansion of the “press corps”, and who can publish secrets when they are given to them.  The Electronic Frontier Foundation, among others on both sides, joined in supporting the plaintiffs in this suit.    The quotes are from the actual ruling by the judge in this case. 

“ Petitioner Jason O’Grady declared below that he owns and operates “O‘Grady’s PowerPage” an “online news magazine” devoted to news and information about Apple Macintosh computers and compatible software and hardware. … Over the two years preceding the execution of the declaration….”  It was clear that Apple was looking for the sources of the information they were given and not just a suspension of publication of these types of trade secrets. 

The first article appeared on PowerPage on November 19, 2004, with O’Grady’s byline. It said PowerPage had “got[ten] it’s [sic] hands on this juicy little nugget about a new FireWire breakout box for GarageBand that Apple plans to announce at MacWorld Expo SF 2005 in January.” The article described a device that permitted the user of an Apple computer to record analog audio sources, such as microphones or guitars, using an existing Apple application known as GarageBand, the primary function of which is to facilitate the production of digital audio recordings.

Other articles followed, each with more details.   “According to declarations later filed by Apple investigators, much of the published information appears to have originated in “an electronic presentation file—or ‘slide stack,’ ” generated by Apple and “conspicuously marked as ‘Apple Need-to-Know Confidential.’ ” The investigators note “striking similarities between the Confidential Slides and the articles posted on PowerPage and AppleInsider,”….”  Apple filed to stop these John Does from doing this again, thus the Does in Apple vs Does.  What they objected to, in part, was the idea that the website was a legitimate journalistic pursuit.  The court said it was not going there, and California’s shield law was protecting those who published news.  Apple, the court said, didn’t show reasons for that to not be the case.

“This case raises several novel and important issues affecting the rights of web publishers to resist discovery of unpublished material, and the showing required of an employer who seeks to compel a newsgatherer to identify employees alleged by the employer to have wrongfully disclosed its trade secrets. In part because of these issues and their implications for the privacy of internet communications, the First Amendment status of internet news sites, and the protection of trade secrets, the case has generated widespread interest within the technology sector, the digital information industry, internet content providers, and web and email users. The case also involves an attempt to undermine a claimed constitutional privilege, threatening a harm for which petitioners, if entitled to the privilege, have no adequate remedy at law.” 

By this time, everyone could figure out where this was going. It goes on for another 69 pages, but Apple loses its ability to protect its trade secrets because somebody publishes them on the web. 

Where this really makes a difference is with a site like Wikileaks.  I don’t see this as a journalistic endeavor and can make the same case for the Guardian’s publication of Edward Snowden’s classified secrets.  We have no laws to stop this kind of publishing, and we need a few. 

The press likes the idea of using the First Amendment protection to publish whatever they want, no matter what the damage to our countries.  Most of the major news organizations will make an effort to protect lives and national programs, but some don’t seem to care.  In Wikileaks, the New York Times took the lead in trying to stop some of the information being leaked, to protect the sources of that information.  They want to ignore the death of an athletic coach referred to in one of the cables, and pretend that the publication had nothing to do with it. 

The difference is the newspapers handling the Wikileaks disclosures were professional organizations with experienced members of the press.  We have no idea who runs the websites of the world, and almost anyone can register one and start an “on-line newspaper”.  Our legitimate press has some idea of the damage that can come from publishing secrets, and so do the intelligence services of other countries; we could easily imagine their involvement in some of these releases, especially those of Snowden. 

Washington can make laws for anything and everything, so why not limit the ability of people who aren’t really journalists to publish National Security Secrets?  The British do it with their Official Secrets Act, something worth thinking about. 

You can read more about people who give up secrets in Keeping Secrets, The White House, the Military and Business Leaks that Threaten our National Security

When You Can't be a Whistleblower

Thomas Drake, a former CIA analyst and National Security Agency (NSA) manager who tried to take on his bosses at NSA and proved, beyond a shadow of a spy agency, that whistleblowers are not welcome anywhere around Washington.  What happened to Drake was an indication that, in spite of the many “Whistleblower Protection” laws that have been made into policy, being a whistleblower is not a protected enterprise.

There is quite a bit of popular confusion about Whistleblowers.  Almost anyone can claim to be one, and very few of those who claim it, actually are.  L. Paige Whitaker, Legislative Attorney, American Law Division, wrote a report for Congress on what the Whistleblower Protection Act actually says.  Though it was amended in 2010, after the analysis was written, most of the added “protections” are cosmetic.  My readers would do well to read an analysis of the amendment, since it is clearly intended to right a number of wrongs in the way the Act was administered in the Federal government.  What any analysis shows, is the lack of protection for anyone claiming the status. 

The Intelligence Community, where Snowden and Drake were from, is not covered by the Act. “Moreover, the statute does not apply to federal workers employed by the Postal Service or the Postal Rate Commission, the Government Accountability Office, the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Imagery and Mapping Agency,  the National Security Agency, and any other executive entity that the President determines primarily conducts foreign intelligence or counter-intelligence activities. [page CR-2]”.  The 2012 amendment does not change the principle, but changed the Agency names to reflect those currently used.  

THINTHREAD was Drake’s project and he thought it worked pretty well.  He offered a cheaper and easier way to do something that is specifically described in a redacted portion a classified Inspector General report, leaving a person to speculate, “NSA enhanced digital network exploitation systems… [in a way that was] “inefficiently using resources” and …“may be developing a less capable long-term digital network exploitation solution that will take longer and cost significantly more to develop.”  So, it appears, Drake was right about his opinion that THINTHREAD was a better product, and cheaper than the alternatives.  Being right does not usually win out.  Drake was not loved for his opinions, but what he was really not loved for, was his way of getting them out into the public domain.  This is where most whistleblowers go wrong.

The Government Accountability Project says “Left with no other options, Drake began legally communicating with a Baltimore Sun reporter about Trailblazer – never sharing any classified information…. The Sun published a series of articles exposing the $1.2 billion debacle.” 

This is where “right” gets a little cloudy, since a government employee, with the kinds of security clearances Drake had, cannot give any information to the press without having his work approved for public release.  The agreement doesn’t say anything about “if you have no other choice”. The employee does not get to decide that something is not classified;  the government does a review to decide if it is, or isn’t.  The dilemma for Drake, of course, is allowing the government to review what the author is about to send over to those reporters.  Most whistleblowers don’t like sending it to anyone to review, and I can’t blame them.  Nobody in his right mind will approve the release of something that makes them look bad, especially something they will then read about in a newspaper.

It doesn’t allow for the public disclosure of classified national defense information for the purposes of identifying a wrong.  It protects people who disclose evidence of a number of types of activities to a Special Council or Inspector General and it applies only to employees in “covered positions”.  For those who are, or were, in Intelligence, that does not mean an undercover person.  It means a position covered under the Act. 

Generally, current employees, former employees, or applicants for employment to positions in the executive branch of government in both the competitive and the excepted service, as well as positions in the Senior Executive Service, are considered covered employees. However, those positions that are excepted from the competitive service because of their “confidential, policy-determining, policy- making, or policy-advocating character,” and any positions exempted by the President based on a determination that it is necessary and warranted by conditions of good administration, are not protected by the whistleblower statute.

 Neither Snowden nor Drake were covered employees by this definition, so try as they might, they cannot be Whistleblowers.  That doesn’t mean that shouldn’t have a way to be heard.   If people actually got this kind of protection, we would almost never see a whistleblower in the press.  Agencies need to look inside themselves to see why we do.  If nobody listens to the politically sticky things that are brought to their attention, bureaucrats eventually will stifle any possibility of correcting their own problems.  They might also give outlets to people like Snowden and Bradley Manning who chose a path that will cause us great harm, as a country, if we don’t.   

You can read more about people who give up secrets in Keeping Secrets, The White House, the Military and Business Leaks that Threaten our National Security

at http://www.amazon.com/s/ref=nb_sb_ss_i_0_20?url=search-alias=stripbooks&field-keywords=dennis+f.+poindexter&sprefix=Dennis+F.+Poindexter,stripbooks,159

Snowden and Freedom of the Press

What kind of relationship allows people in government agencies to freely speak with journalists about classified national security matters?  While Edward Snowden’s father is imploring readers of various press reports to consider his son’s motivation, we might do better to look back a few years, and wonder why he gets so much notoriety for what he did.  

Thomas Tamm, before he called the New York Times, went to his boss in the Justice Department, and a friend on the Hill, to try to get someone interested in looking at NSA spying on U.S. citizens’ telephone conversations.  That was five years before anyone ever heard of Edward Snowden.  If you think Tamm was doing something terrible, you might also wonder why the Justice Department dropped charges against him.  They destroyed his job and family security first, but had no hard feelings. 

You can see Tamm’s own description of what he was thinking, and the description of Michael Iskoff,  who wrote his story down in a Newsweek article, The Fed Who Blew the Whistle, one of the most detailed articles I have read on any subject like this.  [http://www.thedailybeast.com/newsweek/2008/12/12/the-fed-who-blew-the-whistle.html] 

Both are interviewed on Democracy Now!, for those who might be text-challenged. [http://www.democracynow.org/appearances/thomas_tamm].  At least you can hear it in their own words. 

Tamm says he didn’t know the name of the Program but knew somebody was going around the FISA Court process to get warrants issued.  The Chief Judge felt the program was “probably illegal” and felt the Attorney General might get indicted over it.   The curiosity about this story is the New York Times told Tamm they would have to check their sources at NSA to find out what was going on.  This might be true, or it might be cover for another source.  Washington is devilishly cleaver when it comes to this kind of smoke. 

The whole episode has come full circle in the appointment of James Comey to be Director of the FBI.  Iskoff claims Comey and the Director, Robert Mueller, were about to resign over a program that Justice thought was illegal and the Bush White House was trying to perpetuate.  Iskoff leaves little doubt that he thought it was NSA’s program monitoring U.S. citizens.  

Sitting in Attorney General Ashcrofts’s hospital room, Comey managed to make his opinions known strongly enough that the White House representatives that had come to get the program renewed, went back empty handed.  That is real commitment to your ideals, and usually suicidal in Washington politics.  It is nice to know that someone appreciated what a risk he took, and still rewarded him.   

I wonder why Tamm and Thomas Drake at NSA, felt they had no other avenue.  If we look at the modern Whistleblower, very few have tried to resolve their complaints the right way, but both of these people did make the effort.  When they ran out of options, they thought going to the press was acceptable. 

Organizations need a responsible way to deal with complaints about perceived wrongs.  The longer they are allowed to fester, the more likely the outlet will be the press.  While we look for ways to hang the guilty, maybe some of those leaders who refuse to listen to their own, might be lined up by the same gallows. 

You can read more about the keeping of secrets in Keeping Secrets, The White House, the Military and Business Leaks that Threaten our National Security, available through Amazon at http://www.amazon.com/s/ref=nb_sb_ss_i_0_20?url=search-alias=stripbooks&field-keywords=dennis+f.+poindexter&sprefix=Dennis+F.+Poindexter,stripbooks,159

Acting Free

I reprinted this popular article from my website.  With all the new people in Washington talking about what we may or may not do in Syria, it seemed like a good time to repeat it.....

Acting Free by Dennis Poindexter A defector from East Germany, before the Berlin wall came down, told me he defected to the US because  he could tell the difference between a person who was free, and one who wasn’t.   He said, “They act free”, which is something most of us in America don’t grasp very well.  Folks in Iran, Syria and  Russia, could probably tell us something about it.    For the many years of working for the government, I didn’t have a real understanding of what it meant. I used his comment many times in teaching my students,  but it was not the same as being there. I worked in places where everything we did was a secret, in some way, and those are pretty uncomfortable .   Most of them didn’t have windows, and we had to enter through a locked door.  There were bars on the windows in one place, and that was really unpleasant.  But, we always had the feeling that the importance of what we did outweighed the inability to be entirely free.  We could accept certain rules that protected our country, and sometimes protected us.  If some of the secrets got out, it would not be pleasant.  This didn't keep us from acting free among ourselves.  We went out, had fun, enjoyed each others' company and argued.  We could be critical of our bosses or the national leadership and not have a political officer sending us to a camp somewhere. Don't confuse this with being free in the same context the defector was talking about.  Places with Really Big secrets are not always free;  some are more so than others.   I would never say they weren't patriotic, or that they didn’t appreciate the importance of the work they do , but that is a different thing.  They don't act like they are free. It is better to have an example, because this is not a simple idea. The Hook What most non-government people don’t know is the nature of the lasting relationship that exists when retirement comes.  If a government employee has a security clearance like the one I had, there is not an “ex-employee” clause in any of the agreements one has to sign.  These agreements last forever.  This is a  “till death do us part” agreement and there are many unpleasant parts to it.  For one of the most irritating, the government is required to review everything I write for public consumption, including such things as a  resume sent to a potential employer– just to make sure it is not classified information.  I have done this 20 times over the years and it is never fun.  It is impossible to write a column in a newspaper given this type o f review, but it is also difficult to write anything that disparages the work the government is doing, particularly if it is the Defense Department or the Intelligence Community.  Some people just do it anyway,  but that is not in my nature. Thirty years ago, I submitted my first article for approval and got back a note from the approving person  that said I could publish it in a “small circulation magazine” but should not submit it to a national publication.  I was livid over this, since the government does not get to say where or by whom you can publish something, once they have approved it.  I called my bosses boss and before I could say anything, he said, “I know what you are calling about and I have already taken care of it.  They cannot tell you where to publish and we have withdrawn that statement from the approval we issued to you. Congratulations on publishing.”  He was a great boss.  I published the article in The Office which sent me  two versions of the magazine, English and Spanish language editions.  I sent the fellow in Washington the  Spanish language edition. Since retiring, I submitted two articles for publication approval.   Before I left work there, I actually talked to the people in the office that handles what is called “Pre-Publication review” and told them I would be writing when I got out, and wanted to be sure I had the right people to deal with.  If you are a “current employee or contractor” there are two rules that have to be followed:  (1) the material being published should be unclassified i.e. containing no formal secrets and (2) The material must be “consistent with policy”, meaning of course, that it has to be in line with what the leadership thinks the policy is at that moment.  When a person becomes a retired person, that second one is dropped.  Well, that is the rule, anyway.  Because of my experience with doing this, I sent these articles in for review before I started looking for a publisher, but in spite of that, they asked me where the material would be published.  One has to think about this question for a minute.  If I already had a publisher, what would the point of having a pre-publication review actually be?  The publisher would have seen it already, and presumably others, before it got that far.  It is supposed to be a classification review to check to see that none of those Really Big Secrets gets out in the public.  It makes no sense to not do that before the document is released to a  publisher or anyone else, but it doesn’t seem to be a requirement to wait.  My little antennae went up.  This year, there was a case where a person published a book with some Very Big Secrets in it and the government had to go around and get those books back[1].    The Army had already approved that book for public release.  It may seem that “better late than never” is a good idea, but they must be kidding themselves because it is not possible, these days, to protect something that has already in a publisher’s hands.  The secret is now known by several people without any kind of security clearance,  and  they are usually scattered all over the USA.  There would be quite a few computers with this book in it, and it is nearly impossible to get all the copies back.    This seems strange, given the current rules for pre-publication review, but it just show the difficulty in a human review of such complex areas, and the antiquated policies that allow it to be done this way.  I read a couple of books about the military operations in Afghanistan and wondered, at the time, how such things  can get into print when they tell all kinds of Very Big Secrets.  They say when certain operations were done, who did them, and how they were carried out.  They even talk about what other agencies and countries were doing .   These are books that generally describe how well we are doing in some war. They even tell us what the super-secret CIA has been doing in all kinds of places, but you will never hear that from the CIA.  They know about Never Say Anything and they do a good job of following that rule. The rest of the government falls a little short.  The classic example of this is the way CIA handled the deaths in Khost, Afghanistan where several sources said they had lost 7 people when an agent blew himself up in their midst.  Just a cursory view of  the stories from that week will point out that it was not the CIA telling about what happened there. Everybody at CIA said "no comment" when asked about it, including the Director.  This is what you are  supposed to do.  Later, there was a report issued by CIA admitting that mistakes were made on several  fronts, which is not exactly a secret.  Press speculation created all kinds of examples of "what actually  happened", but nobody will ever know what happened,  because CIA keeps their mouths shut.  So where, early on, do we get stories about the agents, the spy, the bombing, and all the rest? The New York Times and Financial Times quoted “a U.S. official”.  In other articles,  “some members of the Obama Administration”  are quoted as saying the Times Square bomber was a similar intelligence failure [2].  This gets into the business of one intelligence agency criticizing another, through  proxies,  in other places in government.  Every time someone is caught trying to blow something up, there  can be an intelligence failure for not preventing the incident from getting as far as it did.  These are what  might be called "nested secrets" because they are secrets, inside other secrets, told by third parties so the  real person jabbing will not be seen as the one doing it.  They poke at each other all the time, but it is all  in good fun. A couple of others also quoted “former CIA officials” and MSNBC quoted “Western Intelligence Officials” which is really extending things a bit, since we are now talking about the possibility that the  sources are not from the US.[3]  They could be anyone, anywhere, though probably not Syria, Cuba or  Iran.  Anybody who has ever touched an intelligence service anywhere and who might know something,  or be able to speculate on it, can talk about it even though we know that it is a Very Big Secret.  These are  the kinds of Very Big Secrets that need to be protected because people can get hurt when they aren’t. The first article I wrote that had to be approved by the government was submitted for pre-publication review in October of 2010.  It was a parable on software licensing (never mind, it is too hard to explain)  and that was returned in a week – “approved”.  The second was an article critical of the Defense Department and a couple of offices in the Director of National Intelligence.  Neither of these agencies are  surprised by criticism and both get more than their share of it.  They just needed a little more. The second one did not come back.  Instead, I got an e-mail from one of the people in the approval office  that asked me if I had ever signed a non-disclosure agreement while an employee or a contractor of the  place I submitted it to.  This was an odd question, given the circumstances, because it was the precise  reason I was sending it to them to begin with.  My antennae were moving higher at this. The Agreement Since working in Defense, I had worked for many different places that require a signature on what is euphemistically called a “non-disclosure form”.  It is really a form created by the Justice Department called  the Form 4414, which says in part, “I understand that the purpose of the review described in paragraph 4  is to give the United States a reasonable opportunity to determine whether the preparation submitted pursuant to paragraph 4 sets forth any SCI. I further understand that the Department or Agency to which  I have made a submission will act upon it, coordinating within the Intelligence Community when appropriate, and make a response to me within a reasonable time, not to exceed 30 working days from date of receipt.”  I have signed agreements in 20 different places since leaving Defense, including the FBI, but the Defense Department decided they were the ones who should do the review of this particular paper, and claimed a right to review anything else I published.  I was going to go back to the FBI and ask them what they thought about that, but someone else intervened for me.  Most people in those government circles will not. The Form 4414 is not a non-disclosure form;  it is a censorship agreement, so described by Michael Whately in his article on the foundations of the policy governing its development.  I had never heard it described that way before, but there is not much written about it.  I certainly liked President Reagan and was happy to serve under him while he was in office, but I really  had no idea what he was doing in the area of pre-publication approvals, nor any understanding of why  this was happening.  It so happens, 1983 was a predecessor of the Year of the Spy, 1985, and most of the  spies were arrested in 1984.  I was teaching at the Defense Security Institute during that time, so it came back in a flash, that we were inundated with spy stories to tell our students.  It is both motivational, just to   think there are real spies, and educational, to see how spies actually do steal information.  I should add  that none of these people were publishing information in their local newspaper, or a magazine;  they were  stealing it to give to some foreign government. The big story, in our circles,  was John Walker who had been doing the worst kind of espionage and selling codes that would allow Russia to decode things we had encrypted.  He did some of that right here  in Virginia and was born in Scranton Pa, where my wife and I had both lived at one time.  Jonathan Pollard was caught spying for Israel and there was such consternation about a friend, particularly a friend  that we spent millions of dollars a year on, spying on us.  Every year, Israel asks the President of the United States if Pollard can get out of jail long enough return to Israel, but nobody has let him do that yet.  In addition to him, there was Sharon Scranage and Larry Wu-Tai Chin from the State Department and CIA.  Scrange was a wonderful case because she had been romanced by a Ghanian intelligence officer who managed to get her to talk about the identities of CIA undercover officers in that country.  We were constantly trying to convince our students that people would fall victim to this sort of thing, but, in her case, we had a real-world example.  Chin was a spy for 30 years, in three different organizations, so we had examples of how spies were able to continue on without detection, even moving from one place to another. Ronald Pelton, who spied from NSA, and Edward Lee Howard who was never caught but was identified  and fled to the USSR were both educational because of the sensitivity of the things they were giving to the  Russians, who were not our friends at that time.  There was Randy Jeffries who was stealing and tried to sell classified Congressional testimony to the Russians. All of these stories made security education very easy, but people in government were very uneasy.  This  was a lot of spies, and most of them were arrested after the signing of this Executive Order, but people in  the National Security Council would have known about the on-going investigations and been very concerned. Frederick Whatley, an attorney with the Cleveland law firm of Walter, Haverfield, Buescher & Chockley, wrote an analysis, in May 1984, that described the background and changes that were actually being implemented.  Whatley had been following the Snepp case, which the Supreme Court had just decided in 1981, which gave the CIA the right to "control sensitive material in order to protect the compelling state interests of (1) the secrecy of information important to our national security, whether it be classified or not; and (2) the appearance of confidentiality of our intelligence agencies.... [4]" It would be difficult to be critical of the CIA for prosecuting Snepp.  In the finding of the court, there was  this little side note saying Snepp had not submitted his book for pre-publication approval and had deceived  CIA into believing he would.  [Note: For legal scholars, Whately portrays Snepp as a person who was never going to write about things that were classified.] "Under DOJ 2620.8, an employee will have to sign a lifetime censorship agreement, promising not to publish any information that contains (1) any SCI (sensitive compartmented information), any description  of activities that produce or relate to SCI, or any information derived from SCI; (2) any classified  information from intelligence reports or estimates; or (3) any information concerning intelligence activities,  sources, or methods. ... Moreover, as noted above, the order uses the phrase, "any information," the same phrase that was held unconstitutional in Marchetti, but was upheld in the Snepp decision…” [5] Marchetti was the same kind of thing, by the way.  Marchetti had published a book;  did not get it reviewed,  and CIA thought it had some classified material in it.  Marchetti thought he had a First Amendment right to write his book anyway.  The appellate court had said this about Marchetti's rights and the First Amendment: “As we have said, however, Marchetti by accepting employment with the CIA and by signing a secrecy  agreement did not surrender his First Amendment right of free speech. The agreement is enforceable only  because it is not a violation of those rights. We would decline enforcement of the secrecy oath signed when  he left the employment of the CIA to the extent that it purports to prevent disclosure of unclassified information, for, to that extent, the oath would be in contravention of his First Amendment rights.”[6] Had it not gone to the Supreme Court, prepublication would not be done the way it is now.  That was not a  big surprise, but what followed in Whatley’s analysis of NSDD-84,  sure was.   "... The lack of one governmental agency sets our country apart from almost all others. This lack is a blessing bestowed on this  country by the libertarian heritage of its founders, and it is a cornerstone of a free society. The agency we  lack? A government censorship agency." [7] My first reaction to this was “A What?” because it seemed so odd that anything of the sort could have been  considered.  It seemed like something we would never want to do or contemplate.    "The Reagan Administration proposes to remedy this deficiency and clearly contemplates either one large censorship  board or several smaller boards contained within the various governmental units. One "trial balloon," put  forward by Assistant Attorney General Richard K. Willard, proposed that penalties up to $5,000 plus an  unlimited amount for damages be meted out to those who leak classified information. These penalties and/or damages would be determined by administrative officers rather than judges. Moreover, such an officer would hold a closed hearing to which even the lawyer for the alleged "leaker" could not gain entry  unless he had been cleared to receive classified information.” [8]  Is this the Ronald Reagan I remember?  Sure, he was a little bit right wing, on occasion, but to suggest  a censorship board was not a little-right-wing kind of thing.  How could something like this have been contemplated?  It took awhile to figure it out. The Handle of the Hammer Willard’s trial balloon was trying to get at an issue of who should do reviews of unclassified information in  the Federal government.  If we were going to have reviews of unclassified information, it would be better  to have those done by someone who was quasi-independent, than by the agencies that are trying to prevent  information critical of how they do business, from becoming public.  He may have been right about it, in  that context.  This somewhat restores my confidence in Ronald Reagan, though it will probably have little  effect on my feelings towards the way pre-publication reviews are done. Somewhere along path of "prepublication review" I started to think about the defectors idea that he could tell the difference between the people around him who acted free.  I don’t feel as free as I did once. Marchetti and Snepp were not acting free;  they were making money, or trying to.  But, I'm wondering about the other thousands of people who have written things critical of the way the Intelligence or Defense  Communities manage their programs, only to see them buried somewhere in the Pentagon or the Director of National Intelligence.  This doesn't sound like America the Beautiful, Land of the Free. It’s been almost 30 years since this whole things began and we need to change the system that allows this kind of review to go on and on, without recourse.  In 2009, a federal court held most of the objections to a  book about an FBI program, submitted for pre-publication review in 2001, to be unsubstantiated.  “The  41-page, partially redacted court ruling reviewed the facts of the pre-publication review dispute as well as  the legal standards for official censorship of such materials, and dismissed all but one government  objection to the manuscript....”[9].  I’m not sure about the Censorship Board, but it may have more merit than we thought if some methods could be found to make it more open than was originally proposed.  I personally favor a Review Board  that operates from the Information Security Oversight Office.  This is where challenges are made to the classification of a document when two agencies disagree about it, and they have responsibility for resolving  that kind of issue.  One way or another, a person who has difficulty should have an appeal process that is  trusted and outside the agencies that are slow to respond.  There should be a way to make them show cause for this kind of behavior, without getting an attorney. Most of all, I don’t like the feeling that this has given me.  After 45 years of working for the government, I  know what government is for.  You don’t have to be Left Wing or Right to see that.  It is not for protecting itself, covering up its mistakes, and papering over its use of money that was given to them by people who work just as hard as they do.  We deserve better than that from people calling themselves  “public servants”.  It may take me a little while to get this approved for public release, but I know I can tell the difference between people who are free, and ones who are not. [The Pre-Publication Review Office of the Director of National Intelligence approved this paper the same  day it was submitted for public release.] [1]Catherine Herridge, Exclusive:  Pentagon Attempts to Block Book on Afgan War, September 10, 2010 http://www.foxnews.com/politics/2010/09/09/military-intelligence-attempts-block-book-afghan-war/ [2] Dombey, Daniel, CIA admits errors led to Afghanistan attack,  http://www.ft.com/cms/s/0/ac0408f4-dbe5-11df-af09-00144feabdc0.html#ixzz161DdkWgs and Windren, Robert and Engel, Richard, NBC News, http://www.msnbc.msn.com/id/34687312/ns/world_news-south_and_central_asia [3] Windren, Robert and Engel, page 2 [4] Frederick W. Whately, Reagan, National Security, and the First Amendment:  Plugging Leaks by  Shutting Off the Main, 8 May, 1984, Copyright Cato Institute,  http://www.cato.org/pub_display.php?pub_id=903 [5]Whately, page 3 [6] 466 F. 2d 1309 - United States v. L Marchetti, United States Court of Appeals, Fourth Circuit, See 93 S. Ct. 553 [7] Whately, page 3 [8] Whately, page 8 [9] Steven Aftergood, Court Rebuffs FBI Censorship of Manuscript, http://www.fas.org/blog/secrecy/2009/05/court_rebuffs_fbi_censorship.html