The Central Intelligence Agency last week told a federal judge, in response to a lawsuit, that it had a right to leak classified information to selected journalists and then to deny release of exactly the same information to other journalists requesting it under the Freedom of Information Act.
The suit was filed by independent journalist Adam Johnson, whose work is frequently published in The Nation, Alternet, and on other progressive sites. Johnson noticed that in a 2012 information release request to the CIA by then-Gawker journalist John Cook for correspondence between the CIA and a number of prominent journalists, many of the responses to those journalists were redacted. Why, Johnson wondered, would the CIA send emails to some journalists and then withhold the same information from others? Why was preferential treatment being given?
For the record, the journalists who received preferential treatment were Jo Becker and Scott Shane of The New York Times; David Ignatius of The Washington Post; Ken Dilanian and Brian Bennett of the Los Angeles Times; Matt Apuzzo and Adam Goldman of the Associated Press; and Siobhan Gorman and Evan Perez of The Wall Street Journal. Most have since moved on to other outlets.
In one example that Johnson cited in his suit, The Wall Street Journal's Gorman wrote to the CIA's Office of Public Affairs, "I'm told that on runs, Director Petraeus's security detail hands him bottles of water, relay-style, so as not to slow him down. And you mentioned the director's running a 6-minute mile, but I was told that the agency-wide invitation was that if you could run a 7-minute mile, you can come run with the director. I wanted to make sure both are is [sic] accurate. On the chart, it's accurate to say that the congressional gym and the Pentagon gym ranked high, right? And I was just told that the facilities at the black sites were better than the ones at CIA. Don't know whether that's something you want to weigh in on, but I thought I'd see if you did."
The CIA responded the same day. "Siobhan ..." The rest of the document is redacted. In closing, the CIA added, "We can chat more on Monday, hope this helps." That's it. The entire response was deemed to be too classified for you and me. But it was okay for Siobhan Gorman. She quickly responded, "Thanks for the help. I hope I wasn't the cause of your dental appointment delay. This is very helpful as I try to tie up loose ends on this story. Sometimes 'fun' stories take as much work as their 'less fun' brethren. Sorry for all the qus [sic]."
The CIA argued that limited, selective disclosures of classified information to journalists are perfectly legal. The National Security Act of 1947, they said, only requires protection of intelligence sources and methods from "unauthorized" disclosure, not from authorized disclosure. And because the disclosures at issue were actually intended to protect intelligence sources and methods, they were fully authorized.
That was nonsense, according to Chief Judge Colleen McMahon. She said that Johnson's question "is a good one. The issue is whether the CIA waived its right to rely on otherwise applicable exemptions to FOIA disclosure by admittedly disclosing information selectively to one particular reporter or to three." She ordered the CIA to prepare a "more rigorous" justification of its legal position. Johnson may then respond to the CIA's response by March 1.
The CIA has a long and ugly history with journalists. From the early 1950s to the mid-1970s, the CIA carried out something called "Operation Mockingbird." The purpose of the operation was, in part, to recruit journalists and to manipulate the news media for propaganda purposes, including the propagandizing of the American people. Then-CIA director George H.W. Bush restricted the program in early 1976, and by the time the Church Committee was ready to release its report on CIA wrongdoing around the world, Operation Mockingbird was over.
But routine and regular contact with journalists never ended.
If the CIA wants to be an equal opportunity leaker, well, I guess there's not much to stop it. But the issue is far more serious, and that's because the legal definition of espionage is "providing national defense information to any person not entitled to receive it." That came from Judge Leonie Brinkema in US v. Kiriakou. She couldn't have been any more clear about it.
So why does the CIA get to commit espionage? Because there's nobody to stop them. I've said countless times in this venue that the Congressional oversight committees are cheerleaders and lemmings and will never challenge the CIA on these issues, at least not with the current lineup. Meanwhile, the CIA can leak whatever it wants to whomever it wants with impunity. There won't be any espionage trials for the CIA's Office of Public Affairs.
We can talk in more detail about former CIA director Leon Panetta leaking classified information to a Hollywood producer and writer and getting away with it. We can talk about Panetta publishing his memoir without putting it through the CIA's Publications Review Board, leaving it chock full of classified information and paying no price. We can talk about former CIA director David Petraeus leaking classified information, including the names of 10 covert operatives, to his girlfriend, who was writing his hagiography. He pleaded to a misdemeanor. And the list goes on and on.
But what good would that do? The fix is in. The CIA can do whatever it wants. The rest of us have to follow the rules. There is one glimmer of hope, though. It's Judge Colleen McMahon and those jurists like her. Maybe she'll use this case to give Washington a lesson in respect for the law, freedom of the press, and separation of powers. Maybe.
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