The legal principles are clear, but this is a very difficult game to play.
The nuts and bolts of Mr Kiriakou’s conviction are straightforward.
The New York Times
On Jan. 25, Mr. Kiriakou is scheduled to be sentenced to 30 months in prison as part of a plea deal in which he admitted violating the Intelligence Identities Protection Act by e-mailing the name of a covert C.I.A. officer to a freelance reporter, who did not publish it. The law was passed in 1982, aimed at radical publications that deliberately sought to out undercover agents, exposing their secret work and endangering their lives.
Those thirty months could have been a lot longer but for the plea deal. Mr Kiriakou had become a minor celebrity as an ex-CIA operative, speaking about waterboarding and other issues. Kiriakou didn’t think he was doing anything wrong, and didn’t even bother to try to hide his moves. A line, however, was definitely crossed in giving the name of the CIA officer.
On principle, the CIA deals in information. What information is given, where it’s received and what risk information poses is the working currency of CIA business. From the nature of the case, which is generally considered to have created no risk or done any real injury, it looks like the CIA is redrawing its line about giving information to the media. There’s a clear legal interest in obtaining a conviction.
That’s pretty much standard, although a high profile agency can naturally expect to receive a lot of flak in the process of cases of this kind. Advocates of open government and CIA accountability say that the conviction simply makes an almost invisible organization more invisible. The NYT has taken the understandable line that in this case the information wasn’t dangerous, wasn’t misused, and added several statements by ex-senior CIA people to that effect.
While that may be true in this case, any theory that releasing information classified at any level to the media is OK is way off target. Journalists doing research in the intelligence field know they’ve only got part of the picture by definition and what they get will be in bits and pieces to be assembled. They’re not able to do risk assessments beyond what they know.
Information, and a lot of it, can move in real time. It’s still current when it moves. The CIA has taken the quite reasonable position of creating a legal framework for dealing with this and making the rules clear to its operatives. “Loose talk costs lives” is truer now than it was in the 1940s.
Unlike other intelligence agencies, the CIA also gathers a lot of “collateral” information. If you’ve ever seen the CIA publications, you’ll know how wide ranging the information gathering is. That collateral information, in its classified forms, can be extremely valuable. It’s also an actual commodity in the intelligence sector, and there are strong dollar and other incentives for getting it. The CIA is effectively sitting on a virtual commodities market of information.
If that environment sounds like a recipe for creating a potentially very insecure, gigantic information base, that’s exactly what it is. Hence the CIA’s clear objective of shutting down the whole idea of releasing classified information of any kind.
The media problem
This case also cuts straight to the heart of a major ongoing legal issue for journalists- Sources. Journalists can go to jail for refusing to reveal sources to a court, even when acting in the public interest. This already muddy situation becomes even less clear when dealing with intelligence information. The built-in lack of understanding of issues when assessing intelligence information is also a built-in liability to both quality of information and people’s safety.
Journalists sometimes forget they don’t know what other people know about their subjects. Hostile interests can recognize names, places and issues easily enough. They can join the dots very easily.
This is a two-way relationship. Intelligence routinely obtains information from media. Basic news often relates to intelligence issues. Economics and business relate to intelligence. So what gets published can be far more valuable than publishers realize. They don’t know it’s important.
That creates a serious dilemma: Public interest vs. real public risk. Intelligence information is like C4 explosives. Add a detonator to an otherwise inert material, and it turns into a highly destructive force. It can even do that literally, with the right information about the right subjects.
So what do you do about it?
1. You don’t allow your sources to put themselves at risk. (Talk about counterproductive- Get the source to cut its own throat is not best practice, to put it very mildly.)
2. You get a clear picture of what’s sensitive. (If you don’t know what’s sensitive, why don’t you? Check everything.)
3. You check classifications. (Why wouldn’t you?)
4. You talk to intelligence media officers about the issues if necessary, preferably at publisher level. They can get information and tell you what’s OK and what’s not faster than you can.
5. You realize you’re not James Bond and acknowledge what you don’t know.
Freedom of information and civil rights issues
The fact, whether media likes it or not, is that it’s not a court. Civil rights are sacred, and rightly so, but if you’re talking about own goals, releasing information which can lead to terror attacks and assassinations is taking liberties with civil best interests.
Yes, accountability makes sense- But not at the expense of serious risk.
Yes, transparency is a good working model- If it works. Cosmetic transparency, which is what’s likely to happen if not based on operational realities, is the worst possible outcome for advocates of transparency. You can get something which is called “transparent” and is basically a vast mine of non-information.
Putting an ideological wall between the intelligence agencies and the public interest describing their role as anti-public, simply makes it worse. The advocates sometimes remind me of the useless polemicists who used to make getting the environmental argument across impossible by starting their monologues by accusing everyone else of anything and everything.
Anyone in the intelligence community, or anyone like me who’s studied it (almost unwillingly/unwittingly, through military intelligence research) for years will tell you that healthy skepticism covers a wide and very useful range of options. Facts are facts- To a point. Rumours can be facts- But they’re also often systematic disinformation.
Information quality is the core issue for media. SOP in intelligence is to spread fake information. Real information is guarded and rarely easily assembled. Respect the public interest in the first instance by checking correlations and supporting evidence. Don’t go looking for information “on principle”, because anyone can feed you anything you want to hear. Shut up about what you’re really looking for, and do a risk assessment of every bit of information you find. You probably don’t know which bit is the detonator.
Love it or hate it, the CIA has raised the right questions. Getting the right answers is the problem.