Citing “law enforcement and intelligence sources who have been briefed on the case,” Michael Isikoff reports that the government has identified “the second leaker” — a source of information on drone targeting and terrorist watchlisting for The Intercept.
The FBI has identified an employee of a federal contracting firm suspected of being the so-called second leaker who turned over sensitive documents about the US government’s terrorist watch list to a journalist closely associated with ex-NSA contractor Edward Snowden, according to law enforcement and intelligence sources who have been briefed on the case.
The FBI recently executed a search of the suspect’s home, and federal prosecutors in Northern Virginia have opened up a criminal investigation into the matter, the sources said.
Because it raises questions about whether the Administration has the “appetite” to prosecute another source for journalists, the article seems designed to generate pressure to do just that — to get Congress (among others) to demand that the Justice Department prosecute this source.
But the case has also generated concerns among some within the US intelligence communitythat top Justice Department officials — stung by criticism that they have been overzealous in pursuing leak cases — may now be more reluctant to bring criminal charges involving unauthorized disclosures to the news media, the sources said. One source, who asked not to be identified because of the sensitivity of the matter, said there was concern “there is no longer an appetite at Justice for these cases.”
While Isikoff outlines the content of The Intercept’s watchlist story, he leaves out several details that may make DOJ less interested in prosecuting this leak.
First, two courts have ruled that people on the No Fly List receive due process regarding their status. Significantly, in June, an Oregon judge presiding over an ACLU lawsuit on behalf of 13 people on the No Fly List ruled the process unconstitutional and ordered the government to come up with a more meaningful redress system for people on the list.
In [the] ruling, the court agreed with us that the redress procedure “falls far short of satisfying the requirements of due process,” and is “wholly ineffective.” The court warned that “without proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the No-Fly List” – precisely what has happened to our clients and many others on the List.
[snip]
The court ultimately concluded that the lack of any meaningful opportunity to contest their placement on the No Fly List violates our clients’ constitutional due process rights. The government now has to come up with a new process that satisfies the Constitution, including officially telling our clients whether they are on the No Fly List, providing reasons for their inclusion, and giving them the ability to contest the basis for that inclusion before a judge.
Earlier this month, 7 of ACLU’s clients in that lawsuit got cleared to fly. The government will have to start providing ACLU’s other clients some kind of redress process by January.
Whatever process the government develops going forward, it will bring more transparency to precisely the system disclosed in The Intercept’s watchlisting story.
At the same time, a number of other disclosures have raised questions about the watchlist. Most notably, Dick Cheney’s biographer, Stephen Hayes, briefly got put on the Selectee watchlist requiring additional screening; he believes that’s because he booked a one-way flight to Turkey for a Mediterranean cruise. Hayes is probably correct: as the document disclosed by The Intercept make clear, the government may, in fact, watchlist a person for “Travel for no known lawful or legitimate purpose to a locus of TERRORIST ACTIVITY.” Just this week, Hayes announced he appears to have gotten off the list.
Additionally, senior officials have had to explain that the numbers — in the hundreds or even thousands — routinely offered for the number of Americans who have traveled to fight with ISIL are inflated for precisely that reason: anyone who travels to Turkey without a known reason gets watchlisted — and counted as an ISIL fighter. In reality, there are maybe 20 to 30 Americans fighting in Syria.
Perhaps most amusing is the story behind the “Jetsetting Terrorist,” a blog started in June. As Forbes recently revealed, the “terrorist” is Peter Young, an animal rights activist convicted of a misdemeanor for freeing minks in 3 states in 1997. Young’s blog documents the he gets as a frequent flier on the Selectee treatment, including how he invoked his Selectee status to jump to the front of a very long TSA security line. Young has also provided more significant details (details that mirror those in the leaked document), such as that TSA Agents have to call the FBI every time a selectee flies.
The point is, many more details about the No Fly and Selectee processes will be coming out in upcoming months — both through the ACLU lawsuit and related new redress policy and through Young’s blog (unless blogging about being a Selectee gets one removed from the list!). Those details will be coming out against the absurd background of Cheney’s biographer being branded a terrorist because he took a Mediterranean cruise.
Not only will aspects of these lists become less justifiable, but they will become public, one way or another.
That likely provides another reason why DOJ may hesitate to charge The Intercept’s alleged source: by the time any case went to trial, the alleged source’s disclosures would look banal by comparison. Any such prosecution would look like overkill.
That may well be true. But it appears that those requesting and carrying out the investigation want to push for precisely that kind of overkill.
Truthout Is Preparing to Meet Trump’s Agenda With Resistance at Every Turn
Dear Truthout Community,
If you feel rage, despondency, confusion and deep fear today, you are not alone. We’re feeling it too. We are heartsick. Facing down Trump’s fascist agenda, we are desperately worried about the most vulnerable people among us, including our loved ones and everyone in the Truthout community, and our minds are racing a million miles a minute to try to map out all that needs to be done.
We must give ourselves space to grieve and feel our fear, feel our rage, and keep in the forefront of our mind the stark truth that millions of real human lives are on the line. And simultaneously, we’ve got to get to work, take stock of our resources, and prepare to throw ourselves full force into the movement.
Journalism is a linchpin of that movement. Even as we are reeling, we’re shoring up all the energy we can to face down what’s coming, because we know that one of the sharpest weapons against fascism is publishing the truth.
There are many terrifying planks to the Trump agenda, and we plan to devote ourselves to reporting thoroughly on each one and, crucially, covering the movements resisting them. We also recognize that Trump is a dire threat to journalism itself, and that we must take this seriously from the outset.
Last week, the four of us sat down to have some hard but necessary conversations about Truthout under a Trump presidency. How would we defend our publication from an avalanche of far right lawsuits that seek to bankrupt us? How would we keep our reporters safe if they need to cover outbreaks of political violence, or if they are targeted by authorities? How will we urgently produce the practical analysis, tools and movement coverage that you need right now — breaking through our normal routines to meet a terrifying moment in ways that best serve you?
It will be a tough, scary four years to produce social justice-driven journalism. We need to deliver news, strategy, liberatory ideas, tools and movement-sparking solutions with a force that we never have had to before. And at the same time, we desperately need to protect our ability to do so.
We know this is such a painful moment and donations may understandably be the last thing on your mind. But we must ask for your support, which is needed in a new and urgent way.
We promise we will kick into an even higher gear to give you truthful news that cuts against the disinformation and vitriol and hate and violence. We promise to publish analyses that will serve the needs of the movements we all rely on to survive the next four years, and even build for the future. We promise to be responsive, to recognize you as members of our community with a vital stake and voice in this work.
Please dig deep if you can, but a donation of any amount will be a truly meaningful and tangible action in this cataclysmic historical moment.
We’re with you. Let’s do all we can to move forward together.
With love, rage, and solidarity,
Maya, Negin, Saima, and Ziggy