Whistlegate Reveals Some Very Chatty Minders of State Secrets

As Democrats in Congress assess a CIA analyst’s “whistleblower” allegations against President Trump regarding Ukraine, one thing already seems clear: There has been a breakdown within the government of traditional restrictions against sharing intelligence beyond those with a need to know it.

Unlike most whistleblowers, the CIA analyst was not a witness to events. Instead, he functioned as a kind of investigative reporter who worked sources to develop the information detailed in the complaint. While some have praised the informer for unearthing questionable behavior by the president, some experts in national security law say that the whistleblower and his sources may have violated regulations aimed at preserving state secrets.

Experts also say this breakdown was almost inevitable. Restrictions on information sharing were reinforced in response to some of the biggest spy breaches in U.S. history – involving Robert Hanssen, Aldrich Ames and Harold James Nicholson, among others. But they were undermined after 9/11 when government officials concluded that closer communication among various agencies might have helped it prevent the attacks.

Robert Eatinger, former senior deputy general counsel at the CIA who now leads the national security law practice at Dunlap, Bennett & Ludwig, said the basic rule is two-fold: 1) you don’t share classified information with someone who doesn’t have a sufficient level of clearance; and 2) you don’t share with someone who doesn’t have an official need to know the information.

This helps explain why “most whistleblower complaints are about first-hand experience,” says attorney Sean Bigley, who specializes in such whistleblower actions and in defending those at risk of losing their security clearances. He says that is preferable not just because an eyewitness is generally more credible, but because the sharing of classified information can itself be against the law. For example, it could matter where the information was discussed. If the information was classified top secret, for example, any conversation about it would have to take place in a surveillance-proof room called a Sensitive Compartmented Information Facility, or SCIF. Bigley says that’s not a problem when someone with direct experience files a whistleblowing complaint, and he wonders why none of the whistleblower’s sources were willing to come forward.

In his complaint, the CIA analyst states that he “was not a direct witness to most of the events described.” If the whistleblower had a “need to know” the information that was troubling, he could have accessed the transcript and intelligence himself. Instead he was told about it by anonymous “officials” at the White House and State Department.

The CIA analyst claims that he came by the information legitimately, claiming “the information provided herein was relayed to me in the course of official interagency business.” But though a meeting may have an official purpose, that doesn’t mean that it’s free game to share any and every piece of classified information.

His complaint also makes clear that he was not passively accepting reports from others but actively pursuing information. “Over the past four months,” he writes, “more than half a dozen U.S. officials have informed me of various facts related to this effort [to pressure Ukraine].” These seven-some officials are fonts of information:

“Multiple White House officials with direct knowledge of the call informed me…”
“Based on multiple readouts of these meetings recounted to me by various U.S. officials…”
“I also learned from multiple U.S. officials that…”
“U.S. officials characterized this meeting…”
“Separately, multiple U.S. officials told me that…”
“I was told separately by multiple U.S. officials that…”

There are more examples – page after page of them — perhaps an effort to make the chorus of chatty officials seem more compellingly numerous than they are. In “almost all cases,” according to the whistle-blowing complaint, “multiple officials recounted fact patterns that were consistent with one another.”

How have officials with clearances become so casual in sharing classified information? Widespread disdain for President Trump within the federal bureaucracy, particularly within the intelligence agencies, may be a factor. But apparently something else was happening as well, namely a long-standing failure to rein in the rumor mill. It seems that security clearances are rarely revoked for over-sharing with colleagues.

Eatinger says that there are many reasons one might lose a security clearance. “It runs the gamut from psychological issues to the salacious,” he says.

One of the most common reasons government workers are stripped of their clearances is that they have been caught lying about when they got to work and when they left. Time and attendance fraud is vigorously policed and ruthlessly punished. Losing one’s security clearance over T&A (as it is known to federal employees) is a “career death sentence,” Eatinger says.

By contrast, in handling years’ worth of cases involving loss of clearances, “I haven’t seen anything to do with talking out of school” or anything to do with discussing secret information with a fellow official who lacks a need to know that information.

That’s consistent with the experience of lawyer Elaine L. Fitch, who practices security clearance law at Kalijarvi, Chuzi, Newman & Fitch, and who co-authored the fourth edition of the book “Security Clearance Law and Procedure.” “The biggest issues we see are financial,” she says. Workers are considered insufficiently reliable for a clearance if they have “too much debt” in their personal lives, potentially making them vulnerable to offers of cash for secrets.

The fact that few government officials are losing their clearances because of inappropriate sharing doesn’t mean that everyone is holding classified information close. Instead, it suggests that the lines are often blurred and, as has been revealed in cases involving former FBI Director James Comey and others leaking classified information to the press. The government is hesitant to punish top officials who share information, who under law are subject to reprimand, suspension without pay, or removal, among other penalties.

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