SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2016, Issue No. 39
May 3, 2016

Secrecy News Blog: http://fas.org/blogs/secrecy/

PUNISHING LEAKS THROUGH ADMINISTRATIVE CHANNELS

The Obama Administration has famously prosecuted more individuals for unauthorized disclosures of classified information to the media than all of its predecessors combined. But behind the scenes, it appears to have sought administrative penalties for leaks -- rather than criminal ones -- with equal or greater vigor.

"This Administration has been historically active in pursuing prosecution of leakers, and the Intelligence Community fully supports this effort," said ODNI General Counsel Robert S. Litt in testimony from a closed hearing of the Senate Intelligence Committee in 2012 that was released last week in response to a Freedom of Information Act request.

But, he said, "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."

Therefore, Mr. Litt said, in 2011 Director of National Intelligence James Clapper ordered intelligence agencies "to pursue administrative investigations and sanctions against identified leakers wherever appropriate. Pursuant to this DNI directive, individual agencies are instructed to identify those leak incidents that are ripe for an administrative disposition...."

Administrative penalties could include termination of employment, loss of security clearance, fines, or other adverse consequences. The number of individuals who were in fact sanctioned as a result of the ensuing "emphasis on administrative dispositions of leak investigations" was not disclosed. But "by advocating for administrative action in appropriate cases, the DNI hopes that more leakers will be sanctioned, and others similarly situated will be deterred," he said at that time.

The 2012 Senate Intelligence Committee hearing pre-dated the classified disclosures in 2013 by Edward Snowden, who was obviously not deterred.

In a 2014 memorandum, Homeland Security Advisor Lisa O. Monaco said that "Recent unauthorized disclosures have unfortunately underscored the need to vigilantly safeguard our Nation's most sensitive intelligence information." The memo detailed numerous "near-term measures... aimed at further reducing the risk of additional high-impact disclosures."

Yet "technical fixes alone cannot fully mitigate the threat posed by a determined insider," she wrote. "As a result, [the corrective steps] include measures to improve business practices, enhance the security culture across the workforce, and reduce the unique risks associated with 'privileged' users."

See "Near-term Measures to Reduce the Risk of High-Impact Unauthorized Disclosures," memorandum from Homeland Security Advisor Lisa Monaco, February 11, 2014:

The actual efficacy of the measures described, some of which are still being gradually implemented, has not been publicly reported.

JUDGE GARLAND'S JURISPRUDENCE, AND MORE FROM CRS

A new report from the Congressional Research Service examines Judge Merrick Garland's approach to various domains of the law in an attempt to assess what the impact would be if his nomination to the U.S. Supreme Court were ever confirmed by the U.S. Senate.

"The report focuses on those areas of law where Justice Scalia can be seen to have influenced the High Court's approach to particular issues, or served as a fifth and deciding vote on the Court, with a view toward how Judge Garland might approach that same issue if he were to be confirmed."

The report begins addresses Judge Garland's treatment of 14 topical areas of law, including civil rights, environmental law, and freedom of the press. See Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court, April 27, 2016:

Other new and updated reports from the Congressional Research Service include the following.

The First Responder Network (FirstNet) and Next-Generation Communications for Public Safety: Issues for Congress, updated April 28, 2016:

Dominican Republic: Update on Citizenship and Humanitarian Issues, CRS Insight, April 27, 2016:

Oman: Reform, Security, and U.S. Policy, updated April 26, 2016:

Private Flood Insurance in the National Flood Insurance Program (NFIP), CRS Insight, April 25, 2016:

Clean Power Plan: Legal Background and Pending Litigation in West Virginia v. EPA, April 27, 2016:

Corporate Expatriation, Inversions, and Mergers: Tax Issues, updated April 27, 2016:

The Buy American Act--Preferences for "Domestic" Supplies: In Brief, updated April 26, 2016:

Zika Response Funding: In Brief, updated April 28, 2016:

Traditional and Roth Individual Retirement Accounts (IRAs): A Primer, updated April 27, 2016:

U.S. Manufacturing in International Perspective, updated April 26, 2016:

The Regional Greenhouse Gas Initiative: Lessons Learned and Issues for Congress, April 27, 2016:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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