Secrecy News

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.