AP Photo/Susan Walsh
Three weeks after President Donald Trump abruptly fired FBI director James Comey, his administration’s Russia controversy continues to unfold, in large part because of a series of leaks of sensitive information to the media.
While some contend that the leaks are necessary to inform the public of the activities of what critics call an opaque administration, national security experts are increasingly torn over whether they’re a public good or a security risk.
The one thing those in the national security and intelligence communities agree on, however, is the accelerated rate at which information is being disseminated to the press.
“This is the leakiest administration in recent memory, no doubt,” said Robert Deitz, a veteran of the CIA and National Security Agency who worked under presidents Bill Clinton and George W. Bush, referring to leaks coming out of the White House, as well as those that have reportedly come from current and former intelligence officials.
And that’s not a good thing, Deitz said. “As a former intelligence official, I’m opposed to leaks. As a general rule, [intelligence] leaks are harmful.”
What are the risks?
“By definition, when someone leaks information, they’re betraying the trust and confidence that was placed in them when they were given a clearance and access to classified information,” said Charles Price, a former FBI agent who worked at the bureau for nearly three decades.
Leaks also inhibit the free and candid exchange of information within the government, Price added, leading people to question who they can trust.
Some experts argue that leaks, though they may have been justified before, aren’t justified now because officials have a number of avenues to report sensitive information, including the FBI and congressional investigations into Trump-Russia ties.
Susan Hennessey, a Brookings national security fellow and former NSA counsel, wrote on Lawfare about particularly risky leaks of information collected through signals intelligence, called SIGINT for short. SIGINT refers to information gleaned from intercepting communications between parties of interest. All information collected in this manner is deemed classified.
SIGINT leakswere included in reports that Trump’s adviser and son-in-law Jared Kushner discussed setting up a secret communications back channel between Trump and Moscow; reports that Russian officials discussed having “derogatory” information about Trump; and reports that former national security adviser Michael Flynn discussed US sanctions in a conversation with Russian ambassador Sergey Kislyak during the transition period.
Such revelations mark an “alarming” departure from proper legal and security protocol, Price said – and they could compromise American spycraft.
The target of a SIGINT operation may have thought they had a secure communications device, “but all of a sudden, they’re reading in the paper about information collected from the device they thought was secure,” Price said. “Now they realize their network isn’t so secure after all.”
SIGINT releases can reveal who the US is targeting on what devices, alerting adversaries to fix the problem, Price added. And that can risk national security by compromising US intelligence operations.
Leaks can also pose constitutional challenges. Shortly after Flynn’s conversation with Kislyak was released to the press, Lawfare’s Tim Edgars argued that the leak may have violated Flynn’s civil liberties.
His conversation with Kislyak was obtained through a Foreign Intelligence Surveillance Act (FISA) warrant, which allows for the monitoring of any individual in the US, including foreign agents. FISA warrants are designed in order to protect the Fourth Amendment rights of US persons like Flynn who converse with foreign intelligence targets like Kislyak. And “publicly disclosing or disseminating such information for purposes other than foreign intelligence almost certainly violated that order, and possibly Flynn’s constitutional rights,” Edgar wrote.
“I cannot recall any other time in which the contents of FISA intercepts were disclosed to the media in this manner,” Hennessey said.
‘We are not in normal times’
But others argue that it isn’t so cut-and-dry. Given current circumstances and the unique challenges posed by the Trump administration, leaks pertaining to the president’s and his associates’ ties to Russia “are acts of profound patriotism in defense of the republic,” said Glenn Carle, a CIA veteran and former spy.
“Normally, of course leaks are harmful,” he said. “But we are not in normal times.”
REUTERS/Yuri GripasTrump has been hounded by the issue of Russian election interference since he took office. The controversy picked up steam in March, when Comey confirmed to Congress that the FBI was investigating the Trump campaign’s potential ties to Russia and collusion with the Kremlin during the 2016 election.
Things heated up further in May, when Trump abruptly fired Comey, who was spearheading the FBI’s probe. Though the White House initially said the decision had been driven entirely by the recommendation of Deputy Attorney General Rod Rosenstein, Trump later said that “this Russia thing” had been a factor in his decision to fire Comey.
In the days and weeks that followed, a number of explosive reportsraised further questions about the president’s motives in firing the man investigating him; his dealings with Russian officials; and his possible efforts to impede an active counterintelligence investigation into his campaign associates.
Soon after, the Department of Justice appointed former FBI director Robert Mueller as special counsel in charge of the Russia investigation. Some of the latest revelations involving Kushner’s reported communications with Kislyak seem to indicate that the investigation may now reach the highest levels of the White House.
These developments, fueled in large part by leaks from the intelligence community, highlight the “existential crisis” intelligence officials may find themselves in, Carle said.
“You take an oath to protect the Constitution against all enemies, domestic and foreign. That’s what we do to serve the country. But now you’re faced with a chief executive who acts in ways that betray that oath,” Carle said. “If you serve the state, you betray your oath. If you betray the state, you betray your oath. So, what do you do?”
If you serve the state, you betray your oath. If you betray the state, you betray your oath. So, what do you do?
Claire Finkelstein, a professor and national security expert at the University of Pennsylvania Law School, echoed Carle’s concerns.
“The country is in a serious crisis with regard to leaking. On the one hand, it’s very important that the president is the commander-in-chief and we owe him a duty of loyalty,” Finkelstein said. “But on the other hand, when the president is himself the source of danger to the nation, because is not safeguarding the nation’s interest, then that duty of loyalty is severely tested. That’s where we are right now.”
Finkelstein added that when intelligence officials have “divided loyalties,” in which their pledge to the Constitution “conflicts with their duty to the president, they choose the Constitution. They choose the country. And that’s why we have leaks.”
‘A very slippery slope’
Above all, some former intelligence officials believe the surge of leaks points to the use of an instrumentalist argument that could set “dangerous” precedent.
“Leakers basically make the judgment call that it’s OK to divulge sensitive information,” Deitz said. “When information is classified, then one ought to obey the law in that respect and not leak it. You can’t just say, ‘It’s OK for me to leak, but it’s not OK when someone else leaks’ for purposes that don’t suit you.”
The countervailing point, he said, is that intelligence of a sensitive nature will typically go to the Gang of Eight, the Democratic and Republican congressional members who are regularly briefed on classified information.
“And they’re able to speak if they think something’s important. They can do it anonymously by leaking to the press, or they can hold hearings,” Deitz said. “There’s no need for intelligence officials to intervene in that respect.”
Price echoed that assessment and added that intelligence officials who leak are “concluding on a fundamental level that the rules don’t apply to them.” But that type of analysis, he argued, “is fueled at its base by abject arrogance and hubris.”
“When you leak information because you think someone has a right to know, you’re starting down a perilous road with a very slippery slope,” Price said. “You’ve compromised your integrity, the agency you work for, and the intelligence. And that’s incredibly disconcerting.”
‘No happy way forward’
The existence of a more credible Senate investigation and Mueller’s appointment as special counsel should serve as a bulwark against more leaks, some experts said.
“The investigations do make a difference, because it would mean that there are ways through which the information can be brought forward without having to make it public,” Finkelstein said. “In that case, the information should be directed up the chain of command.”
Carle disagreed. “Look at what happened during the campaign,” he said. “The intelligence community and the CIA, in particular, had multiple sources of information about Russian intelligence activities that took place to undermine our democracy and support Trump.”
“So they did the proper thing, which was to brief the Gang of Eight in a series of tightly-held briefings because the information was so sensitive,” he continued. “What was the consequence? The Senate majority leader and Speaker of the House both said, ‘You will not go forward with this. You will not publicize this.'”
The Democrats, Carle said, reacted with alarm and tried to take steps on the issue. “And the Republicans blocked it. The acts of the intelligence community were effectively neutered. So, what do you do then? It’s only through the press that information can come out. And sometimes sunlight is the best disinfectant.”
Carle also touched on former acting attorney general Sally Yates as an example of how information was brought up through the chain of command and ultimately ignored, until the press reported on it.
Yates warned the White House in January about Flynn’s conversations with Russia’s ambassador so that the Trump administration “could take action” amid concerns Flynn could have been subject to blackmail by the Russians.
Yates did the right thing, Carle said. “She went through the chain of command, she did her job, she reported the dangers of collusion and coercion on General Flynn to her superiors. And no action was taken – until the press got involved.”
Yates “did the normal thing, but this is not a normal circumstance,” Carle said. “You can either commit treason, or you leak to the press. There’s no happy way forward.”
You can either commit treason, or you leak to the press. There’s no happy way forward.
“So, you choose the lesser of two evils, and that’s why there are leaks.”
Finkelstein stressed the importance of keeping classified information – like that involving Kushner’s alleged conversation with Kislyak about a Russian back channel – from being leaked to the press, but also noted that the current situation posesa unique circumstance.
This may be a “rare instance” during which leaking classified information is justified, Finkelstein said, “given the danger the country faces from [Russia], the unwillingness of our government to oppose Russianefforts, and the possible collusion between members of Trump’s inner circle and Russian operatives.”
She added that Kushner’s reported proposal to Kislyak “exposes the risk” the US faces by giving Kushner continued access to classified information.
“Some information is classified because revealing it would pose a serious national security threat,” she said. “Some information is classified because its revelation could compromise intelligence sources and methods.” SIGINT regarding Kushner’s and Flynn’s contacts with Russians was classified because of the latter.
Finkelstein continued: “But on the other hand, the failure to bring that information to the public eye can impact national security quite a bit. And that’s my concern with Trump’s ties to Russia.”
‘This is not a political tiff’
Despite their disagreements on the issue of leaking information, those in the national security apparatus agree that Trump’s potential ties to Russia and his fraught relationship with the intelligence community pose a unique threat to the US.
“When the administration gives three or four reasons for firing the FBI director, that’s disconcerting,” Price said, adding that it raised questions about whether Comey’s firing was a political move.
AP Photo/Alex Brandon
Comey’s ouster was “shocking” and the motivations behind it were troubling, Price said, because the FBI is “an apolitical organization that follows the evidence wherever it goes, and doesn’t really care where it ends up, because they don’t have a dog in the fight.”
He continued: “And when the public thinks the FBI has a dog in the fight, it essentially ends the FBI’s reputation for being an effective law enforcement organization, because we rely on the trust and confidence of the public.”
“Comey may have made mistakes, but he was an honest, honorable, and apolitical man. And you can tell because he was getting rocks thrown at him from both Democrats and Republicans.”
Finkelstein said she feels Trump “is unfit to be president” for a number of reasons, especially his efforts to hide information about his associates’ ties to Russia in order to preserve his administration.
“The president and his administration are unable to protect us,” Finkelstein said, “both because of his misguided relations with a country that is an enemy to the US, and because he himself is under a cloud.”
The consequences intelligence officials face for leaking information about the Trump-Russia investigation are “grave,” Carle said, so their desperation also shows the “depth of concern in the community as a whole.”
He added: “For many, many people, this is not a political tiff. This is a threat to the foundations and the very function of the republic.”