Director of National Intelligence (DNI) James R. Clapper, Jr. thinks intelligence community (IC) employees should be like his grandchildren: seen but not heard. Unfortunately, that means his IC community “grandchildren” could witness government crimes, waste, fraud, abuse, or dangers to health and public safety, and never report them.

Intelligence community employees have no meaningful whistleblower protections. They are exempted from the Whistleblower Protection Act. IC Inspectors General are more often than not either absent or completely corrupted. And, congressional oversight is completely ineffective or complicit in wrongdoing. (Just look at Congress’ complicity with the National Security Agency’s (NSA) warrantless wiretapping scandal).

Yesterday, Clapper announced he is responding to the “leak hysteria” plaguing Washington with a new administrative crackdown for suspected “leakers.” While Clapper’s desire to stop unauthorized disclosures of information that could harm national security makes sense in the abstract, a better practical approach to stopping leaks would be to institute whistleblower protections, curb rampant overclassification (which all experts agree undermines legitimate secrets), and curtail the “authorized leaks” by “anonymous officials.”

Clapper’s new rules include requiring IC employees answer polygraph questions about revealing restricted information. Perhaps Clapper should start with putting himself and all of the high-level officials in the situation room during the Osama Bin Laden raid through a polygraph, as the Bin Laden raid is quite possibly the most discussed “covert operation” in American history.

Forgive my skepticism about these new “tools” to stop supposed “leaks,” but it is based on how the Obama administration has approached suspected “leaks” using the existing tools. Despite the option of less-severe measures – both criminal and administrative – the Obama administration has used the heavy-handed Espionage Act to bring more prosecutions against so-called “leakers,” who are usually whistleblowers, than all past presidents combined.

NSA whistleblower Thomas Drake is the perfect example. Drake reported illegality, fraud and billions in waste through the all of the proper internal channels available to IC employees: to his superiors, to the Inspector General, and to the Congressional Intelligence Committees. The system failed him so miserably, that his reward of following the rules was an Espionage Act indictment. (Rightfully, the Justice Department’s case against Drake collapsed in spectacular fashion days before trial).

Then there’s the Espionage Act case against Central Intelligence Agency (CIA) whistleblower John Kiriakou, who blew the whistle on waterboarding and torture. Kiriakou’s defense team moved for dismissal accusing the Justice Department of selective and vindictive prosecution:

The United States is prosecuting Mr. Kiriakou because he expressed views which are not popular with the government.

As Steven Aftergood of the Federation of American Scientists put it:

. . .  there is no known indication that Mr. Kiriakou, a former CIA counterterrorism operations officer, had a bad faith purpose to harm the United States, and every indication of the opposite.

Meanwhile, torture apologist Jose Rodriguez brazenly admitted destroying torture interrogation tapes in violation of a court order on national television, and there is no rumor of even a “leak” investigation, much less a prosecution.

According to the New York Times:

[The new rules] were developed amid a bipartisan outcry in Congress over recent disclosures in several news outlets — including The New York Times — about matters like the use of a computer virus to sabotage Iranian nuclear equipment, drone strikes and the foiling of a bomb plot by Al Qaeda’s Yemen branch. . . . The Obama administration has already prosecuted six leak-related cases, twice as many as were brought under all previous presidents combined. But Congress is pressuring it to do more.

What the mainstream media misses is the fact that not all “leaks” are created equal.

As I’ve explained, there is a fundamental difference between “leaking” national security information that has no intrinsic public interest value for political gain and disclosing what is reasonably believed to be government illegality, waste, fraud or abuse, a.k.a. whistleblowing. The leaks about the Stuxnet Virus, drone strikes, and foiled bomb plot that supposedly sparked DNI’s new administrative rules appear to have come from high-level government officials in order to make the Obama administration look good, while the six Espionage act prosecutions target low and mid-level officials, who are usually whistleblowers.

Stuxnet is the most blatant example of politically-motivated “leaking,” yet, former CIA officer Jeffrey Sterling is being prosecuted for allegedly disclosing that the CIA botched an attempt to sabotage Iran’s nuclear programs and in the process gave Iran valuable nuclear intelligence.

The solution to suspected “leaks” is not more leak prosecutions or punitive workplace practices (like polygraphs), which will not stop high-level officials from leaking for political gain, but will have a chilling effect on potential whistleblowers. A more practical solution is to recognize the difference between whistleblowing and politically-motivated “leaking” that has no public value, and create safe channels for the former while discouraging – not participating in – the latter.


Jesselyn Radack is National Security & Human Rights Director for the Government Accountability Project, the nation’s leading whistleblower protection and advocacy organization.