Criminal Justice & the Rule of Law Intelligence

Leaks Aren’t the Real Story, But They Shouldn’t Be Ignored

Susan Hennessey
Tuesday, May 30, 2017, 4:05 PM

This morning, CNN reported that

Russian government officials discussed having potentially "derogatory" information about then-presidential candidate Donald Trump and some of his top aides in conversations intercepted by US intelligence during the 2016 election, according to two former intelligence officials and a congressional source.

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This morning, CNN reported that

Russian government officials discussed having potentially "derogatory" information about then-presidential candidate Donald Trump and some of his top aides in conversations intercepted by US intelligence during the 2016 election, according to two former intelligence officials and a congressional source.

One source described the information as financial in nature and said the discussion centered on whether the Russians had leverage over Trump's inner circle. The source said the intercepted communications suggested to US intelligence that Russians believed "they had the ability to influence the administration through the derogatory information."

This is potentially very significant for the ongoing investigations into ties between Trump’s campaign and Russia. A foreign adversary claiming to believe it could influence a presidential administration—contrary to President Trump’s prior claims—is on no set of facts less significant than the fact that such information was disclosed to the press. So, no, the leaks aren’t the “real” story here.

However, we can’t ignore the leaks either.

This marks at least the second time highly-specific information regarding signals intelligence collection has been publicly revealed in the Trump-Russia affair. The first was back in February, when media outlets reported that—contrary to express denials by the White House—former National Security Advisor Michael Flynn had discussed sanctions with Russian ambassador to the United States Sergei Kislyak. That information was probably known because Kislyak, as the agent of a foreign power, was subject to communications monitoring. The revelation lead to Flynn’s forced resignation.

At the time, both Adam Klein and Tim Edgar wrote about the troubling nature of the Flynn disclosures on Lawfare. Certainly both were right about the extraordinary nature of those disclosures and the difficult questions they raise. I cannot recall any other time in which the contents of FISA intercepts were disclosed to the media in this manner. The Flynn disclosure posed security risks to sources and methods by revealing that a precise communication channel had been compromised. And, as both Tim and Adam noted, it violated laws and guidelines designed to protect not only security but civil liberties as well.

Even among the security-minded, however, that particular episode posed a countervailing set of extraordinary circumstances. As Sally Yates testified, there were individuals in the US government who believed Flynn was in a position to be compromised by Russia, posing a grave national security risk. And despite the information’s being reported through the ordinary channels, no protective action was taken and White House officials were making materially false statements on the matter to the American public. Helen Murillo and I previous wrote on the law of leaks, situating the Flynn disclosures in the motivational typologies offered by David Pozen:

Pozen suggests that although leakiness is “often taken to be a sign of institutional failure, “[i]t may be better understood as an adaptive response to key external liabilities—such as the mistrust generated by presidential secret keeping and media manipulation—and internal pathologies—such as overclassification and fragmentation across a sprawling bureaucracy—of the modern administrative state.”

It may be true in a functional system that leaks ease secrecy restrictions to mitigate issues of public trust. With the Trump administration, however, the liability is not external, with the leakers aiming to fortify the President and federal bureaucracy against public perceptions of illegitimacy. Instead, the bureaucracy mistrusts and fears President Trump himself.

One need not condone the leaks in that instance to view them at least in part as an adaptive response to a system failure. Rightly or wrongly, those who viewed Flynn as a national security threat may have justified the leaks as the only available response to the failure of the President to take action to mitigate the threat and the compounding failure of the White House lying to the public.

Whatever mitigating circumstances might have been offered in defense of the Flynn leaks, however, simply don’t exist here.

There are now two viable channels available to individuals who might be concerned about the Trump administration’s improperly interfering to prevent this information from being investigated or addressed. There are active congressional investigations, one of which is credible, and there is the Russia investigation headed by Special Counsel Robert Mueller. Those inquiries have the ability to investigate the underlying claims in a way that is insulated from White House interference. The Senate investigation also has mechanisms to bring appropriate information to the public should extraordinary need arise. This means that people in possession of important but sensitive information can share it with those who have the capacity to intake and handle it securely as well as the ability to take necessary action.

The existence of available alternative channels makes it especially difficult to justify these particular disclosure, which involve signals intercepts information regarding Americans. Information to, from, or about “US persons” is treated with extraordinary care by the statutes and guidelines governing signals intelligence. The nature of foreign intelligence surveillance requires different standards for collection than we are accustomed to in domestic law enforcement. Because US citizens information is sometimes acquired in contexts where the ordinary procedures safeguarding constitutional rights are unavailable, requiring that the information be handled with particular care is one way to mitigate the heightened risks. One of the most important protections is that information is not shared outside the proper channels or for purposes that are not consistent with foreign intelligence or law enforcement.

To publicly reveal this kind of US persons information for political purposes is an abuse. To the extent there were open debates over whether that is what happened to Michael Flynn, it seems clear that this newest information was leaked in order to increase political pressure on the President. That sets a dangerous precedent.

Disregarding the sanctity of information collected for foreign intelligence purposes, risks eroding the important civil liberties protections embodied by that sanctity. The strongest protection is rooted in broad principles about how this type of information should be used, not personal assessments about the greater good. Those who feared that the extraordinary circumstances surrounding the Flynn episode would invite a general loosening in the degree of care are being vindicated by both the newest leaks and the current climate generally. It is now open season on leaks of classified information. Despite Trump’s finger pointing, the worst offenders seem to be within his own White House. Yet, this latest story is clearly sourced to former intelligence officials, and it implicates a category of intelligence in which the breach of faith with the American people is especially grave. The response to leaks is always more leaks, as various actors seek to clarify or even mitigate harm. While ultimately the issue here is at the top, it is a mistake for current and former intelligence officials to play the White House’s game and respond by becoming careless with the protection of secrets we keep for very good reasons.

For individuals who have serious concerns regarding the conduct of the President and his inner circle, it is tempting to turn a blind eye to these disclosures. The President’s statements about leaks give rise to concerns that he is seeking to distract from questions about his own behavior and relationships, questions about which the American people are entitled to have answers. And there is genuine risk that the White House will seek to use investigations into leaks as a pretext for engaging in political retaliation against those they percieve as opponents. The result is a perception that acknowledging the gravity of these leaks legitimizes or plays into the White House’s false and dangerous narrative.

These are perilous times. We face questions regarding the intentions, conduct, and honor of our own President and his inner circle that bear—without exaggeration—on the future health of our Republic. That is why it is now more important than ever to insist that individuals entrusted with access to sensitive information be worthy of that trust.

Susan Hennessey was the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She was a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.

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