DNI Clapper: Transparency is the Way Forward

The primary lesson that emerges from the unauthorized disclosures of classified intelligence information by Edward Snowden is that U.S. intelligence agencies must be more transparent in their operations, said Director of National Intelligence James R. Clapper yesterday.

“The major takeaway for us, certainly for me, from the past several months is that we must lean in the direction of transparency, wherever and whenever we can,” DNI Clapper told the Senate Intelligence Committee.

“With greater transparency about these intelligence programs the American people may be more likely to accept them,” he said, promising “further declassification.”

Another possibility, he acknowledged, is that even with greater transparency the American people will choose not to accept certain kinds of intelligence programs.

“If dealing with reduced capacities is what we need to ensure the faith and confidence of the American people and their elected representatives, then we in the intelligence community will work as hard as we can to meet the expectations before us,” DNI Clapper said.

Already, the Snowden disclosures have caused “profound damage” to U.S. intelligence, the DNI said.

“What Snowden has stolen and exposed has gone way, way beyond his professed concerns with so-called domestic surveillance programs. As a result, we’ve lost critical foreign intelligence collection sources, including some shared with us by valued partners.”

“Snowden claims that he’s won and that his mission is accomplished. If that is so, I call on him and his accomplices to facilitate the return of the remaining stolen documents that have not yet been exposed to prevent even more damage to U.S. security,” the DNI said.

The use of the word “accomplices” appeared to suggest that the DNI views the journalists who possess and report on the Snowden documents as Snowden’s partners in crime, and even as criminals themselves.

“Is it now the official view of the Obama administration that these journalists and media outlets are ‘accomplices’ in what they regard as Snowden’s crimes? If so, that is a rather stunning and extremist statement,” wrote Glenn Greenwald, who first reported on the Snowden releases last June.

But though it has never yet figured in an actual prosecution, the issue of criminal liability for journalists in this area is embedded in the law.

It’s true that there is no general legal prohibition on publication of classified information. (Congress passed such a statute in 2000, but President Clinton vetoed it.)

But there is a clear and specific prohibition on the willful disclosure of classified communications intelligence information. And that prohibition, in 18 U.S.C. 798, extends also to anyone who “publishes” such information.

What is “stunning,” or at least noteworthy, is that the Obama Administration has apparently made a strategic decision not to attempt to enforce this provision of the law against publishers of the Snowden documents. (It was invoked against Snowden himself as one of the three counts in a June 14, 2013 criminal complaint.)

It seems that even what the DNI called “the most massive and most damaging theft of intelligence information in our history by Edward Snowden and the ensuing avalanche of revelations published and broadcast around the world” is not sufficient to trigger the use of the criminal statute against publishers of classified communications intelligence. So that provision is effectively a dead letter, even if it still finds a faint echo in the DNI’s testimony before Congress.