DATE IMPORTED:June 09, 2017Reality Winner (C), the U.S. intelligence contractor charged with leaking classified National Security Agency material is shown in this courtroom sketch during her hearing at the U.S. District Courthouse in Augusta, Georgia, U.S

U.S. Senate report on leaks and national security is deeply flawed

July 10, 2017

Last week, Republicans on the Senate Committee on Homeland Security and Governmental Affairs released a report on leaks to the media. The report, which was led by Chairman Ron Johnson, asserts that "an avalanche" of leaks under the Trump Administration is harming national security. It lists at least 125 news articles and their bylines - meaning a group of Senators has publicized the names over 100 reporters whom they allege have harmed U.S. national security.

According to Politico, the report was sent on July 6 to Attorney General Jeff Sessions, who has repeatedly threatened to find and prosecute leakers. "Whenever a case can be made, we will put people in jail," Sessions said in April. He has since said that multiple investigations are underway.

Under the Obama administration, charges were brought against at least eight government employees or contractors accused of leaking information to the media, and several journalists were snared in the process through subpoenas to testify or surveillance of their records. After public outcry, the Department of Justice released revised standards for subpoenaing reporters.

Sessions has said that he is unsure whether he would abide by those revised standards. And an associate of former FBI Director James Comey has alleged that President Trump asked Comey to put journalists in jail for publishing classified information.

Here are some of the problems with the report:

1. The report's methodology is not scientific and at times seems baldly political

The report compares leaks during Donald Trump's first 126 days in office with the number of leaks under Barack Obama and George W. Bush in the same period of their respective mandates. The Republican staffers of the committee used a Lexis Nexis search of keywords like "U.S. officials" or "people familiar with" to identify unauthorized disclosures. While the report claims to exclude stories of palace intrigue, it also complains that "many stories presented President Trump in a negative and often harsh light, with some seemingly designed to embarrass the administration."

There very well may be more leaks under Trump than under previous administrations, but the Senate committee report does not compare the magnitude of leaks or any actual harm to national security. As a standard for judging harm, the authors use the language of an executive order on classification--despite widespread criticism from both major political parties about over-classification.

In making their claim that there were only eight leaks of classified information in Obama's first 126 days, the authors say that they excluded leaks related to the "torture memos"--Justice Department documents authorizing interrogation techniques such as waterboarding for terror suspects--because those memos referred to activities that took place under the Bush administration. This is a giveaway that the standards of the report are based more on harm to the reputation of an administration that on release of sensitive intelligence information.

The report also seems to veer from its stated methodology when it includes Comey's unclassified memos of his conversations with Trump, saying the leak of those memos was nonetheless "problematic given the overall controversy involving leakers undermining the administration." (Never mind that the controversy over leakers is promulgated by the administration itself.)

2. The report creates a false paradigm between national security and the free flow of information

While the First Amendment must be respected and a free press is vital to an accountable democracy, the federal government's foremost mission must be to keep Americans safe from harm. As Deputy Attorney General Rod J. Rosenstein put it: 'Releasing classified material without authorization threatens our nation's security and undermines public faith in government.'"

Of course there are leaks with potential to harm national security, but to paint security and press freedom as opposing values is misguided and dangerous, relying as it does on the argument that the American public is safer when kept in the dark about the actions of its elected government. Would the U.S. be safer as a country if we never learned of the Pentagon papers? Or of CIA-sponsored torture, or of drone strikes in Pakistan?

By revealing abuse of powers, violations of civil liberties, and misleading statements to the public, leaks give us the information needed to hold the government to account and to weigh the costs and benefits of military action. In the lead-up to the Iraq War, a team of enterprising reporters at Knight Ridder used anonymous sources to sound the alarm about dissent within the intelligence community. Ultimately, these reports were drowned out by others--sometimes also citing anonymous information--but it's hard to argue that Knight Ridder's reporting wasn't in the public interest. The officials that leaked to the reporters did so out of concern for national security, not a desire to undermine it.

New York Times reporter Scott Shane, whose byline was among those included in the report's list of articles that allegedly harmed national security, told CPJ in an interview last month that there is frequently not a bright line between classified and unclassified information.

"There is this grey area, and traditionally what has happened is the reporter meets the source in this grey area. It's a kind of awkward system, but that's sort of the de facto system that worked for decades and I don't think you can make the case that grave harm was done to national security. You can certainly point to individual leaks that did some harm, but the net gain for national security I think greatly exceeds the net loss for national security," Shane said. "If you talk to the national commission looked into the 9/11 attacks, they will tell you that excessive secrecy and compartmentation of secrets by the national agencies made the U.S. much more vulnerable than any kind of leaks."

3. Listing individual reporters who allegedly harmed national security is something that illiberal nations do

Whether the list of articles and bylines was a tone-deaf attempt to show the work behind the report or was meant to single out individual stories for investigation, a Senate committee's accusation that over 100 reporters harmed national security with their work is particularly chilling considering that Trump has repeatedly maligned the media and that journalists critical of the administration have been exposed to online threats and harassment and violence.

"I was a little confused at first to hear I'd been listed by Congress individually as a member of the media that had threatened national security by reporting on 'leaks' within the White House. When I read through the list and saw the names and titles of other reporters and their stories, many of whom I admire immensely, I immediately thought that this record is reflective not of those who are a danger to society but instead have done their jobs and fulfilled their responsibility to the American people by reporting on the activity within this administration and past ones," Foreign Policy reporter Jenna McLaughlin told CPJ.

Lists of reporters allegedly harming national security is the type of measure CPJ sees in less liberal countries. In Ukraine, the government has kept a list of banned reporters who allegedly threaten national security since 2015. Many journalists in Egypt are on the government's list of 1,500 alleged terrorists. In its most recent global census of journalists in jail, CPJ found that 182 of 259 journalists are imprisoned on anti-state charges.

4. On the bright side, the report compiles some excellent arguments in favor of the free flow of information

"It is also apparent that the arguments often used to justify leaks that are at odds with the Trump administration--that leakers are bringing to light potential illegality, unwise policies, or concerns about the President's temperament--have no legal basis. According to the non-partisan Congressional Research Service (CRS), no accused leaker "has ever been acquitted based on a finding that the public interest in the released information was so great that it justified an otherwise unlawful disclosure."

Most leakers are prosecuted under the Espionage Act, a WWI-era law that was meant to prosecute spies and saboteurs, and that the courts have interpreted to exclude a public interest defense. Prosecutors don't need to prove that information has the potential to harm national security, and courts have said that alleged leakers can't talk about intent. In the espionage case against NSA whistleblower Thomas Drake, which was eventually dismissed, the government filed motions to exclude the words "whistleblowing" and "overclassification" from trial. Edward Snowden has said that he would face trial in the U.S. if he could present a public interest defense, something that many other countries around the world allow, according to the Open Society Foundation.

The Espionage Act turned 100 last year and it is overdue for scrutiny.

The report also inadvertently reveals the importance of leaks, according to Trevor Timm, the executive director of Freedom of the Press Foundation.

"The report is certainly convincing that there have been more leaks reported on by investigative journalists during the start of the Trump administration than at the start of the two previous administrations, but in the vast majority of cases, this is a good thing. The stories cited in the article reveal public officials lying to the public, alleged collusion with a foreign power over our elections, financial corruption, potential obstruction of justice by the president, information about NSA hacking tools wreaking havoc on public institutions, and even a handful of stories on the president *himself* giving highly classified information to foreign powers--which the report blames on the journalists for reporting after the fact. All of this information is vital to the public interest, yet the report treats all of these facts as 'damaging' to national security," Timm told CPJ.

The final line of the report rails against leaks, saying, "History will judge the consequences of these actions."

On that front, at least, there is agreement.