Documents declassified on Tuesday reveal that the Justice Department aggressively sought to impose administrative penalties on whistleblowers, rather than pursue criminal penalties.
The documents, which were obtained by the Federation of American Scientists' through the Freedom of Information Act, include comments made by Robert Litt, general counsel of the Office of the Director of National Intelligence (ODNI), during his February 2012 testimony before the Senate Select Committee on Intelligence. According to Litt's testimony National Intelligence director James Clapper issue a directive to federal intelligence agencies in May 2011 to seek “administrative investigations and sanctions against identified leakers wherever appropriate.”
The number of federal employees who received administrative penalties for leaking classified information has not been disclosed. These administrative sanctions could include firing, fines, or suspension without pay.
The Justice Department under the Obama administration has infuriated government transparency and privacy advocates for its aggressive use of the Espionage Act to prosecute government whistleblowers. Seven individuals were prosecuted under the Espionage Act by the Justice Department under the Obama administration.
“They probably looked at it and said, ‘The effort we put into charging whistleblowers – and it was only seven – we must have a more scalable model,' ” said WhiteHat Security founder Jeremiah Grossman.
“Do they have a legitimate reason for keeping things secret, or are they trying to keep things secret because they're trying to avoid looking bad? There can be completely legitimate reasons for keeping these situations secret, such as important issues related to national security,” Tor Ekeland, a defense attorney whose practice handles federal computer law cases, told SCMagazine.com.
“This Administration has been historically active in pursuing prosecution of leakers, and the Intelligence Community fully supports this effort,” said Litt, during his closed testimony before the Senate committee. “As we have discussed before, however, prosecution of unauthorized disclosure cases is often beset with complications, including difficult problems of identifying the leaker, the potential for confirming or revealing even more classified information in a public trial, and graymail by the defense. And looming over this entire process is an inherent tension between protecting secrecy and fundamental Constitutional guarantees of free speech and a fair trial.”
In the aftermath of these leaks, the intelligence community conceded the need for a national debate about privacy.
“These people work for us,” said Ekeland. “We're a democracy, not a military rule.”