Ethics of journalism vs. intelligence
- posted July 11, 2020
This post part of a series:
Whether journalism is a profession, and not merely an occupation, is a matter of debate. While journalism has a public mission and social role like traditional professions (namely, the law and medicine) it does not require an academic degree or specialized education; nor is journalism licensed or legitimized by the government. And, no organization holds sway over journalists like the American Medical Association or the American Bar Association does over doctors and lawyers respectively.
Former director of Central Intelligence Allen Dulles wrote in 1963 that the "only influence previous studies or experience" had on a prospect's intelligence career was "to direct him more towards the analytical or collection side…or more towards one geographic area of the world…or, if he is a technical expert, into some specialized area of intelligence."
While intelligence practitioners have traditionally been educated in the humanities, social and hard sciences, and engineering, a pronounced shift has occurred in the last decade. Doctoral degrees among Top Secret workers have increased in "professional studies like business administration, information technology management, and various homeland security practices," according to an examination of the resumes of Intelligence Community practitioners by William M. Arkin and myself. The proportion of doctoral degrees in hard sciences and engineering have also seen a decline.
Although efforts were undertaken to professionalize intelligence disciplines, like analysis, after the terrorist attacks on September 11, 2001, "most of what is currently called education is arguably more akin to training," notes the same study. Intelligence analysis is a "craft masquerading as a profession," writes scholar Stephen Marrin, adding it lacks have "its own unique body of knowledge."
Ethics of journalism v. intelligence
One aspect of the professionalization for any discipline is the establishment of ethical standards regarding its practice.
There are seven principles of professional ethics for the U.S. Intelligence Community:
- Mission in service to the American people requiring selfless dedication to the security of the nation;
- Seeking the truth, speaking truth to power, and obtaining, analyzing, and providing intelligence objectively;
- Being responsible stewards of the public trust by using intelligence authorities and resources prudently, protecting intelligence sources and methods diligently, reporting wrongdoing through appropriate channels, and remaining accountable to the community, oversight institutions, and through those institutions, ultimately to the American people;
- Excellence; and
Journalism as a profession also has ethics standards regarding its practice. These are determined by both individuals and the profession as a whole, according to the Society of Professional Journalists. For example, after four years of research, including 20 public forums and a national survey of journalists, a task-force affiliated with the Columbia School of Journalism and now the Pew Research Center identified ten principles of journalism:
- Journalism's first obligation is to the truth;
- Its first loyalty is to citizens;
- Its essence is a discipline of verification;
- Its practitioners must maintain an independence from those they cover;
- It must serve as an independent monitor of power;
- It must provide a forum for public criticism and compromise;
- It must strive to make the significant interesting and relevant;
- It must keep the news comprehensive and proportional;
- Its practitioners must be allowed to exercise their personal conscience; and finally
- Citizens (including those who are pro-amateur journalists or social media users) have rights and responsibilities when it comes to the news.
The Code of Ethics for the Society of Professional Journalists also identifies four corresponding primary principles for the profession:
- Seek truth and report it;
- Minimize harm;
- Act independently; and
- Be accountable and transparent.
Mores and ethics standards since WWII
During world war II, the U.S. press almost unilaterally participated in "voluntary, domestic self-censorship which was overseen by the Office of Censorship," according to two scholars. Only one journalist, during the entire 43 months that the Code of Wartime Practices for the American Press was in effect, "deliberately violated" it by "briefly refus[ing] to create scripts for and [to] monitor his Spanish-language radio broadcasts in 1943."
In 1944, an Associated Press executive news editor, who headed the Office of Censorship, even won a special Pulitzer Prize for his creation and administration of newspaper and radio codes.
Two years prior, however, the administration of Franklin Roosevelt had attempted to indict journalists at the Chicago Tribune for espionage. The criminal probe resulted from a front-page story about the battle of Midway. The article implied that the U.S. had broken Japanese naval codes, which was true, but at the time of publication closely held intelligence.
The criminal probe into the Chicago Tribune journalists was one of a few known instances where the U.S. Department of Justice attempted to indict members of the news media for espionage. The administration of Richard Nixon also convened a grand jury in 1971 to investigate reporters, who obtained a Top-Secret study of the Vietnam War from an ex-military analyst at the RAND Corporation. Then, in 2010, after WikiLeaks published tens of thousands of Secret battlefield reports from the war in Afghanistan containing the names of individuals, who had cooperated with the U.S. military, the Justice Department under Barack Obama convened a grand jury to investigate the website's "founders, owners, or managers" for espionage and other offenses related to computer crimes. The Obama administration ultimately declined prosecution.
One of the Chicago Tribune journalists under investigation, who co-authored the 1942 Midway story was, like Assange, born and raised in Australia. Stanley Johnston emigrated to the U.S. as an adult and became a naturalized citizen. Assange is a foreign national.
Johnston also co-authored the 1942 Midway story with his managing editor, J. Loy Maloney. Neither Johnston nor Maloney witnessed the battle of Midway. The Justice Department at the time alleged that the Chicago Tribune story contained a near verbatim transcript of portions of closely held intercepts of Japanese naval communications concerning enemy ship movements. And, although Johnston and his editor wrote the story when they were physically located in Chicago, Johnston likely obtained the closely held intelligence while he was embedded with the U.S. Navy in the Pacific. So, Johnston and the Chicago Tribune were subject to military censorship based on security agreements that embedded journalists signed during world war II.
Due to those security agreements, legal counsel for the Chicago Tribune neither had, nor ever intended to prepare a First Amendment defense, according to research by Michael Sweeny and Patrick Washburn. Moreover, the two Chicago Tribune journalists, unlike Assange, testified before the grand jury investigating them. That grand jury failed to return an indictment of the Chicago Tribune journalists. In March 2018, however, a grand jury indicted Assange for conspiracy to commit computer intrusion for allegedly agreeing to an attempt to crack the administrator password on his source's classified Defense Department computer, so that his source could obtain closely held intelligence and provide it to his website for publication.
Additionally, neither Johnston, nor his editor Maloney had cleared the information contained in their 1942 article with the U.S. Navy. The Chicago Tribune journalists provided conflicting accounts as to how their article was drafted and edited. That article dissembled both its authorship and sourcing. Maloney admitted that he had not byline Johnston, even though the latter was a co-author. Scholars suggest that Maloney did so to avoid military censorship.
Given that the closely held information in the Chicago Tribune article concerned enemy ships in enemy waters, it arguably skirted the boundaries of the explicit guidance from the Office of Censorship, according to Sweeny and Washburn. But, Johnston and Maloney misattributed their sourcing to the U.S. Navy. Both journalists later admitted to investigators that the sourcing for their article was not true. Johnston’s account of how the article was written and edited changed so many times that scholars suspect that he was attempting to protect his source.
The founder of WikiLeaks, Julian Assange, also obtained closely held information from an enlisted member of the U.S. armed forces, an army junior intelligence analyst, Chelsea Manning, who was deployed in Iraq. Unlike Johnston, Assange was not embedded with U.S. forces. Assange obtained that intelligence from a classified defense department network that Manning had accessed while she herself was physically located in an area of hostility by Congressional declaration of war.
Moreover, like Johnston, Assange did not approach the U.S. Department of Defense prior to the July 25, 2010 publication of the Afghanistan Significant Activities reports (SIGACTS).
WikiLeaks' publication of tens of thousands of Secret Afghanistan SIGACTS, which contained the names of cooperative military sources, not only triggered the Defense Intelligence Agency's review of all 740,000 documents known or believed to be in WikiLeaks possession, it also catalyzed the FBI officially joining the multi-agency probe into the website. Moreover, three days before WikiLeaks published the Afghanistan SIGACTS, the FBI obtained information that civilians were allegedly involved in the intelligence breach in Iraq (on July 22, 2010).
The DIA review specifically assessed risks from the breach to U.S. and allied forces, host nation partners, and private individuals named in the releases. It was used by CENTCOM to mitigate harm to those individuals, who had cooperated with the U.S. military and whose identities were now public. The assessment alone cost $6.2 million.
Only after WikiLeaks published the Afghanistan SIGACTS did Assange approached the Defense Department under the guise of harm minimization for a subsequent release of hundreds of thousands of SIGACTS from war in Iraq (published on October 22, 2010).
In other words, WikiLeaks approached the Defense Department when the U.S. knew what to expect (and after the FBI had formally opened a criminal investigation into the organization). When Assange finally made his approach, the Pentagon's general counsel accused WikiLeaks' interlocutor of being a "no show" for a scheduled telephone conference.
These omissions and seemingly incompetent maneuvers are just a few of the methods that WikiLeaks uses to maintain plausible deniability, collect intelligence on its targets, and achieve strategic surprise, as I will discuss shortly.
Sources and methods
Generally, information that may be subject to secrecy includes military plans, weapons or operations; foreign government information that might impact relations with another country; methods that safeguards U.S. nuclear material or facilities, or intelligence activities and sources and methods, among others.
The DIA completed a full review of all the material leaked by Manning weeks before WikiLeaks published the Iraq SIGACTS on October 22, 2010. A Pentagon spokesperson said at the time of that publication that the material did not contain sources and methods (a determination based on the previously discussed DIA review triggered by WikiLeaks publication of raw or unredacted Afghanistan SIGACTS).
Sources and methods refer to the collection capabilities of the U.S. Intelligence Community, some of the nation's most protected secrets. Long-serving intelligence practitioner and scholar, Mark Lowenthal, notes that security classifications are driven largely by the impact that a disclosure could have on targets evading collection. For this reason, Edward Snowden's leaks of U.S. signals intelligence capabilities (or SIGINT) and WikiLeaks' acquisition and publication of CIA cyber-exploits were said to have either deleteriously impacted operations or been catastrophic to the U.S. and allies. Without such capabilities the Intelligence Community is deaf, dumb, and blind, so to speak. Furthermore, the Japanese naval codes that the U.S. intercepted prior to the battle of Midway were SIGINT. By breaking Japanese encryption the U.S. obtain the actual content or the communication intelligence (or COMINT) regarding Japanese ship movements and its order of battle.
Tactics, techniques, and protocols
While Manning releases did not contain sources and methods, the Pentagon warned WikiLeaks that the publication of the Afghanistan SIGACTS continued to pose a "threat to the lives of coalition forces in Afghanistan and to the lives of local Afghan nationals," and that the "enemy [was] accessing the WikiLeaks website…to pursue…terrorist aims." Therefore, the Pentagon would "NOT negotiate some 'minimized' or 'sanitized' version…of additional U.S. Government classified documents."
As previously mentioned, WikiLeaks' publication of the tens of thousands of Secret Afghanistan SIGACTS, not only triggered the Defense Intelligence Agency's review, it also catalyzed the FBI officially joining the multi-agency probe. That is, at this point the leak was also a law enforcement matter. Three days before WikiLeaks published the Afghanistan SIGACTS, which triggered the DIA review, the FBI obtained information that civilians may have been involved in the intelligence breach (on July 22, 2010). (See my analysis of the U.S. government's case against Assange.)
In addition to sources and methods, U.S. military tactics, techniques, and protocols may be considered closely held because they relate to military plans, operations, or weapons. Notably, a Pentagon spokesperson said at the time that WikiLeaks published the Iraq SIGACTS that the "danger is now exponentially multiplied as a result of this leak[,] because it gives our enemies the where withal to look for vulnerabilities in how we operate and to exploit those opportunities and potentially kill our forces."
A heavily redacted 2011 red team analysis by the Joint IED Defeat Organization concluded, for example, that the publication of raw intelligence about improvised explosive devices (or IEDs) contained in the SIGACTS would lead to the compromise of countermeasure used by U.S.-led Coalition forces against IEDs and that it would "facilitate the migration" of such practices "throughout theaters of operations and across various worldwide insurgent groups."
While Pentagon data for the injuries or deaths of U.S. forces from IEDs in Afghanistan after publication of the SIGACTS showed a decline, the number of deployed troops in that area of operation also declined. Furthermore, U.S. forces withdrew from Iraq in 2011, so comparable data does not exist.
The final DIA impact assessment, according to national security journalist and author, William M. Arkin concluded that risk from the leaks to U.S. and allied forces (and nation-state partners) was moderate to low. Secretary Gates added, however, in testimony before the Senate Armed Services Committee in 2011 that the DIA review was not a damage assessment, reiterating that the it was intended to judge risk and not impact.
Up until Manning's leaks, WikiLeaks' publications were heavily focused on U.S. tactics, techniques, and protocols in CENTCOM’s area of responsibility. After Manning, the organization turned its focus to U.S. SIGINT capabilities, as I will discuss shortly.
Notably, of the nine documents known to be charged against Assange under the Espionage Act (that is, Counts 15 and 16, which are narrowly tailored to the dissemination and then publication of the names of cooperative Iraqi and Afghans who cooperated with the U.S. military) at least one is known to be a Secret SIGACT that contains reporting about an IED attack. "Classified Document D1 named local human sources who provided information on the attack," notes a classification review conducted by CENTCOM for Manning’s court-martial.
Personal identifying information
The unclassified or unredacted portions of the 2011 red team report also articulate that the "[l]ives of cooperative Afghans, Iraqis, and other foreign interlocutors [were] at increased risk" from WikiLeaks publication of raw SIGACTS, and that the "personal identifying information for 23 U.S. military personnel, including full names and social security numbers" were also contained in the source documents. While testimony about the names contained in the Afghanistan SIGACTS was given at Manning's court-martial, testimony about the same for the IRAQ SIGACTS was not, at least not in open-court. This may be because the testimony is classified.
The 2011 heavily redacted red team report also states that WikiLeaks initially held back approximately 15,000 Secret battlefield reports from the war in Afghanistan, and that the subset was "deemed to be of minimal significance." Raw and unredacted Afghanistan SIGACTS that were published by WikiLeaks on July 25, 2010, however, did contain the names of individuals or other personal identifying information of cooperative military sources. At the time, human rights groups urged WikiLeaks to remove the names of individuals from the release.
Voluntary redactions of the Afghanistan SIGACTS, were, as WikiLeaks described them, "occasional."
An CNN analysis of the Iraq SIGACTS, however, which were published by WikiLeaks on October 22, 2010, suggests that, that dataset appeared to withhold more information than the Pentagon, based on a freedom of information request by news channel. According to Assange, the organization took a more vigorous approach, "not because we believe [the prior] approach [to the Afghanistan SIGACTS] was particularly lacking [but] rather just to prevent those sort of distractions from the serious content by people who would like to try and distract from the message."
Finally, WikiLeaks publication of U.S. diplomatic cables did not redact all the the names of people, who had provided the U.S. with foreign intelligence. Regardless, an encrypted archive of the unredacted dataset was accessible online in early 2011, and the password was publicly available by spring that year.
While the prevailing narrative is that a Guardian (U.K.) editor accidentally publishing the password in his book, others suggest that Assange's password lapse was a "pretense to release the unredacted [diplomatic] emails without taking blame for doing so." In this and other respects, deception to obtain plausible deniability are a pattern for the organization vis-a-vis harm minimization and redactions, as I will discuss shortly. By September 2011, WikiLeaks removed any existing redactions from the diplomatic cables on its website.
Two days after WikiLeaks began publishing the diplomatic cables, Gates told the press: "Now, I've heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer, and so on. I think — I think those descriptions are fairly significantly overwrought. […] Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest."
Reuters, citing an anonymous Congressional official, reported that "[i]nternal U.S. government reviews [had] determined that a mass leak of diplomatic cables caused only limited damage to U.S. interests abroad, despite the Obama administration's public statements to the contrary." The official added that "the [Obama] administration felt compelled to say publicly that the revelations had seriously damaged American interests in order to bolster legal efforts to shut down the WikiLeaks website and bring charges against the leakers."
WikiLeaks plausible deniability and strategic surprise
U.S. government interests are arguably served when it engages and even negotiates with the media about the publication of closely held information. Those interests include strategic communications; mitigating harm to both national security and private individuals; and, from a counter-intelligence and law enforcement perspective, ascertaining the scale and nature of the compromised information.
While a prominent perspective is that the U.S. government did not engage with WikiLeaks. That is, it failed to treat the organization as media or unfairly as a co-conspirator, and that it exaggerated harm to U.S.-foreign relations to bolster a prosecution. It was WikiLeaks, however, which failed to liaison with the U.S. prior to the publication of raw, unredacted Afghanistan SIGACTS.
In fact, it was only after the U.S. determined what material the organization had in its possession that WikiLeaks approached the Defense Department under the guise of harm minimization for a subsequent release. In other words, WikiLeaks approached the U.S. once the government knew what to expect.
It was also after WikiLeaks published raw unredacted Afghanistan SIGACTS, which contained the names of cooperative military sources, that the FBI officially joined the multi-agency probe. The FBI also concurrently obtained credible investigative information that Manning's associates were WikiLeaks volunteers or staff and may have aided the soldier in her theft of material.
The organization's theatrical ploys, to include: not showing up to scheduled meetings, password mishaps, and voluntary self-described occasional redactions, which left names of cooperative U.S. military sources in its releases, provides WikiLeaks with plausible deniability.
The organization has admitted or been shown to employ deception, signaling, and promulgating conspiracy theories when conducting its operations. Incidentally, in 2006, Assange wrote about information asymmetries and so-called deceiving conspiracies and their impact on governance (and by reference, elections).
WikiLeaks' publications of U.S. intelligence, both before and after Manning, indicate these tactics are an organizational pattern. First, WikiLeaks arguably uses encounters with the U.S. under the guise of harm minimization to collect intelligence for an upcoming release. Second, its stage-crafted redactions then provide the organization with plausible deniability, but do not minimize harm. These methods, in turn, support the organization's objective towards strategic surprise.
In 2007, WikiLeaks published lists of all the military equipment deployed in Afghanistan and Iraq by U.S. forces. In 2008, an army signals technician notified WikiLeaks that the Iraq related material contained sensitive information. That is, one of the thousands of web pages that WikiLeaks published in that release needed to be removed. WikiLeaks denied the request and published the email, identifying the sensitive information for all to see.
The publication of lists of deployed equipment is what triggered the 2008 army counterintelligence report on the organization that Manning eventually leaked to Assange in 2010. The identification of the military vehicles of U.S. forces "could be used to select specific types of emplacements for IEDs," according to testimony at Manning's court-martial by a person who tasked that report.
At the time that WikiLeaks published the lists of deployed equipment used by U.S. forces, the vast majority of causalities or maimings of soldiers in Iraq were from IEDs. These devices were planted on equipment and vehicles intended for shorter deployments and especially vulnerable to such attacks. It wasn’t until late 2007 that the Defense Department began deploying the first mine-resistant, ambush-protected vehicles (or MRAPs) in Iraq and later Afghanistan, which would eventually reduced both fatal and non-fatal injuries of U.S. armed service members.
After Manning leaked the 2008 army counterintelligence report, WikiLeaks published it as the "U.S. Intelligence planned to destroy WikiLeaks." The report, however, primarily identified intelligence gaps with regard to the organization from a counter-intelligence perspective, as evidenced by the question mark in its actual title: (U) Wikileaks.org — An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist Groups? One in every six deaths of U.S. troops in Iraq were the result of Iranian back militias using means that included explosively formed penetrators (EFP) and other IEDs.
In the first half of WikiLeaks existence, its publications were heavily focused on U.S. military intelligence, especially the CENTCOM and SOUTHCOM areas of responsibility. In its second-half, WikiLeaks' operations and publications have been similarly focused on U.S. SIGINT capabilities. This may be in part due to the skill sets and expertise of its staff members on whom the organization increasingly relies for its operations.
WikiLeaks' submission system is arguably a cover of sorts for the organization. Even when WikiLeaks has had a publicly facing collection apparatus, much of the material published by the organization has been collected (that is, transmitted to the organization) by other means, based on a review of court filings from the prosecutions of WikiLeaks sources and other open-source material.
Nevertheless, during the period when the organization lacked an anonymous submission system (that is, between June 2010 and May 2015) WikiLeaks was instrumental in Edward Snowden's evasion from U.S. law enforcement, advising and abetting him in his escape to Russia. Snowden then leak NSA SIGINT capabilities to two journalists, who were trusted by the organization. One of them lived with WikiLeaks staff (see my own disclaimer) six months before Snowden reportedly made his first contact with her; while she was filming a documentary about surveillance. She later admitted to having a romantic relationship with one of WikiLeaks’ long-term staff member and volunteers.
Furthermore, during this period when WikiLeaks ostensibly lacked cover for its other collection capabilities due to the lack of an anonymous submission system, U.S. SIGINT capabilities that were leaked by unattributed source(s), who were not Edward Snowden were predominately published by outlets where WikiLeaks staff or volunteers also consulted.
Notably, just two months after WikiLeaks’ public facing anonymous submission system became operational again, and arguably with its cover in place (in May 2015), the organization began publishing its own leaks of U.S. SIGINT capabilities that were not attributed to Edward Snowden (in July 2015).
In the wake of the 2016 dumps of closely held U.S. SIGINT capabilities by Shadowbrokers, analysts began to see associations between an August 2016 Shadowbrokers leak and U.S. SIGINT capabilities leaked in December 2013 by (an) unattributed source(s) published in Der Spiegel, a project that Jacob Appelbaum contributed to. As just mentioned, the publications of unattributed SIGINT capabilities between 2013 and 2017, were either published by WikiLeaks or elsewhere at outlets predominately associated with several WikiLeaks staff or volunteers.
It was during this period, a time when the Intelligence Community was facing Shadowbrokers' dump of NSA SIGINT and in the wake of WikiLeaks publication of COMINT hacked from the servers of a major U.S. political party by Russia, that Assange attempted to parlay his favor with the new administration to ostensibly seek a pardon.
WikiLeaks signaled that it was already in possession of NSA cyber-exploits that Shadowbrokers began releasing in August 2016. And, Shadowbrokers signaled back in January 2017 that it wanted the Intelligence Community to know that WikiLeaks had made that claim to possess Shadowbroker NSA exploits. This happened right before WikiLeaks published its own CIA SIGINT tasking orders related to France. All of this happened right before Assange's U.S. approach.
The parlay for a pardon could arguably be viewed as an opportunity for WikiLeaks, an aspirant intelligence agency for the public (one that does not possess legitimate authority, as I have previously discussed) to collect intelligence on its quasi-counterpart, the U.S. government, about a yet unknown release of CIA cyber-tools the organization had acquired, which were eventually published in March 2017.
Official reporting indicates that the CIA was unaware of the theft of its own cyber-tools until March 7, 2017, when Vault 7 appeared on the WikiLeaks' website. Other reporting suggests that the CIA became aware, because Assange told them. WikiLeaks had already published CIA tasking orders for France in February 2017. Either way, the Intelligence Community was beset on all sides by NSA and CIA SIGINT capabilities leaked by both Shadowbrokers and WikiLeaks at a time when Assange made his approach under the guise of seeking a pardon (and it was later claimed harm-minimization).
Prior to the March 2017 Vault 7 release of the CIA's cyber-arsenal, WikiLeaks had published CIA tasking orders related to France, as just discussed. Similarly, the day after Russian began spearfishing a major U.S. political party, WikiLeaks published a searchable archive of State Department emails obtained by other journalists from their own freedom of information requests.
WikiLeaks also made much about its redactions related to the Vault 7 cyber-exploits. Yet, while redacting or witholding the names of individuals minimizes potential harm, holding onto cyber-tools does not. WikiLeaks not only continues to sit on CIA material, it has not engaged with partners in either civil society or the private section regarding consensus as to how to handle that material.
Intelligence gaps to non-state hostile intelligence service
The public record reflects that the Intelligence Community's assessment of WikiLeaks has evolved.
In March 2008 the U.S. Army Counterintelligence Center, as just discussed, identified intelligence gaps regarding WikiLeaks.
U.S. law enforcement began to "seriously investigat[e]…ties between WikiLeaks and Russia after Edward Snowden" escaped there in 2013. By 2015, that investigation turned towards conspiracy and Wikileaks as a "potential intelligence agency when U.S. intelligence obtained information that WikiLeaks had obtained a collection of documents on Saudi Arabia from Russian intelligence," according to William M. Arkin.
While there had been an internal push by law enforcement and intelligence officials to regard WikiLeaks as an information broker and not a member of the news media, the Obama administration ultimately declined to prosecute Assange, as previously discussed.
WikiLeaks became a high-priority requirement for the Intelligence Community soon after Michael Pompeo became CIA director in January 2017. "Intent on finding out more about Mr. Assange's dealings with Russian intelligence, the CIA began…to conduct traditional espionage against the organization, according to American officials," notes a 2018 New York Times report.
While law enforcement officials had once been willing to offer Assange immunity in exchange for his testimony about "WikiLeaks’s interactions with Russian intelligence officers," their position reportedly changed when WikiLeaks began publishing documents about CIA cyber -tools in March 2017.
According to a November 2019 filing by federal prosecutors in the criminal case against WikiLeaks' alleged source for Vault 7, who is an ex-CIA employee, the organization is in possession of CIA information that the organization has not published, to include "source code for at least one CIA cyber-tool."
Soon after, the director of the CIA publicly called the organization "a non-state hostile intelligence service often abetted by state actors like Russia." That translates to a non-state intelligence agency that is sometimes state-supported.
Terrorist organizations can also be non-state actors who are state supported at times. Espionage, in the age of information technology is more decentralized and flatter, as well as cheaper and more accessible to a larger number of actors, as I have previously discussed in this series. In like manner to terrorism, states may support non-state terror groups to further their own covert policy agendas.
Similar to the Executive branch, the U.S. Senate Select Committee on Intelligence provided a sense of Congress that "WikiLeaks and the senior leadership of WikiLeaks resemble a non-state hostile intelligence service often abetted by state actors and should be treated as such a service by the United States."
Steven Aftergood, an expert on expert on government secrecy notes:
“The provision had originally stated that WikiLeaks and its leadership 'constitute' a non-state hostile intelligence service. But this was amended…with 'resemble'. [sic] That move might have attenuated the provision's significance except that it went on to say — whether WikiLeaks constitutes or merely resembles a non-state hostile intelligence service — that the U.S. should treat it as such.”
Two U.S. Senators expressed concern with the phrasing for its lack of definition. One of them proposed striking the phrase altogether:
“[T]he novel phrase 'non-state hostile intelligence service' may have legal, constitutional, and policy implications, particularly should it be applied to journalists inquiring about secrets. The language in the bill suggesting that the U.S. government has some unstated course of action against 'non-state hostile intelligence services' is equally troubling.””
At present, all but the U.S. Judiciary has made an assessment of sorts about WikiLeaks. Judgement by that branch would presumably be at Assange’s criminal trial.
What a "non-state hostile intelligence service" is or what authorities the U.S. government might possess to countermeasure such a threat is unclear.
Pompeo reportedly told Congressional officials that the CIA was "conducting counterintelligence collection, which can include developing informants and penetrating computers overseas, officials said."
Unlike in the Chicago Tribune espionage investigation, grand juries convened under the Trump administration returned multiple indictments; the latest, the second superseding alleging that WikiLeaks is a self-admitted non-state intelligence agency and Assange is a spymaster and hacker. As such, Assange conspired with his recruits to target and hack a U.S. government network and the protected computers of U.S. entities to steal classified intelligence and other information to published that restricted material on the organization's website.
News media organizations and press advocates have expressed concern that the espionage and hacking statutes as written and subsequently applied to Assange could render as criminal otherwise ethical and typical activities by national security investigative journalists. None have taken on WikiLeaks' description of itself as an aspirant intelligence agency. As I wrote last week, that Assange's prosecution by the U.S. is a threat to the press and society, may be true. However, an intelligence agency posing as journalistic outfit is also a threat to the press and society. (Read my analysis of the the U.S. case against Assange here.)
Prior to the second superseding indictment (which is markedly different than its predecessors in the language it employs to describe the organization and Assange's overt acts), the executive editor of the Washington Post, wrote that the case "criminalizes common practices in journalism that have long served the public interest. Meantime, government officials continue to engage in a decades-long practice over classifying information, for reasons that have nothing to do with national security and a lot to do with shielding themselves from the constitutionally protected scrutiny of the press."
The director of the American Civil Liberties Union, Ben Wizner, even suggested that by prosecuting a foreign publisher as a spy under the Espionage Act, the U.S. was setting a precedent that could lead to China and Russia to doing the same to the U.S. press, which is reminiscent of critics of U.S. indictments of foreign hackers, who argue they open U.S. government employees to criminal charges by foreign governments.
In addition to Manning, the Justice Department has successfully prosecuted other WikiLeaks sources, including the Chicago-based political and social hacktivist, Jeremy Hammond, who breached the information system of a private Austin-based intelligence firm, Stratfor, Inc. Hammond was also convicted of hacking federal, state, and local government websites. Hammond and his co-conspirators, which the U.S. alleges includes Assange, publicly disclosed confidential and personal identifying information about thousands of private individuals as well as current and retired law enforcement. WikiLeaks published the hacked Stratfor emails in 2012.
Another WikiLeaks source, Joshua Schulte, is currently undergoing a retrial in the Southern District of New York for stealing CIA cyber surveillance and operation-tools as well as transmitting them to WikiLeaks, as previously discussed.
In the end, the unsuccessful attempt to indict the Chicago Tribune and the possible prosecution of Assange undoubtedly turn on nuanced legal interpretations of the relevant criminal statutes, case law, as well as evidence, facts, and definitions that are adjudicated or impeached. A trier of fact finds or renders a verdict of guilty if there is moral certainty (that is, beyond a reasonable doubt) that a criminal offense has been committed.
The Courts, like the Intelligence Community, and journalism, each undertake to pursue a functional or practical truth, not an absolute one. That functional truth serves the respective mission of each discipline, all of which have a social context. "Citizens and societies depend, out of necessity, on accurate and reliable accounting of events to function," write two experts on the ethics of journalism [italics added].
"Journalistic truth" is "reactive," write the two experts. It isn't "philosophical." It also isn't like intelligence analysis. That is it isn't provident in a manner that reduces uncertainties or that supports operations related to the national defense.
Moreover, news media practitioners generally acquire, aggregate, vet, analyze, and disseminate information to the public that is on-the-record concerning events (or related subjects) that are happening or that already have happened. According to the Society of Professional Journalists, "audiences and conventional wisdom expect sources to be fully identified as a way of assigning media credibility…Use of anonymous sources is a decision demanding careful consideration."
On the other hand, intelligence practitioners, as previously discussed in this series, collect, process, analyze, and disseminate knowledge, assessments, and forecasts to policymakers in response to requests or requirements, including crafting products that reduce uncertainties or that rely on secret information that must be stolen.
"Intelligence refers to information relevant to government's formulation and implementation of policy to further its national security interests and to deal with threats from actual or potential adversaries," including friendly competitors, write Abram Shulsky and Gary Schmitt.
Intelligence, even when it is based on open-source information, therefore, depends on and involves secrecy, as well as denial and deception. Intelligence disciplines are also "inherently connected to the competition among nations" and "a regular tool of statecraft," the same scholars note.
Professions that have a social context, like intelligence and journalism, for which the principle of truth is primary to their mission have ethics that concern themselves with guarding against bias.
As previously discussed, professional ethics for the Intelligence Community demand that practitioners understand and mitigate cognitive, as well as voluntary biases like perseverance, groupthink, and "intelligence to please." Biases like these lead to incorrect judgments and deontological failures (or failures to one's duty) and other negative consequences for the nation.
Similarly, functional or practical truth for journalists requires more than mere accuracy, as experts on the ethics of journalism note. Facts by themselves can be used to mislead, writes the 1947 Commission on Freedom of the Press, which studied the function of the media in democracies. News reports may be “[f]actually correct but substantially untrue,” the same Commission notes. Facts can be used as a means of propaganda. Journalism's social role, therefore, requires accuracy as to facts, as well as to overall interpretation and context. This is especially relevant to large scale leaks of raw intelligence and private communications.
Ethical limits on transparency and secrecy
Moreover, the "public's right to know the truth" is not a right in the epistemological sense, notes American ethicist, Sissela Bok [italics added]. "How can one lay claims to a right to know the truth when even partial knowledge is out of reach…and when bias and rationalization and denial skew and limit knowledge still further?" Bok asks. In other words, human knowledge by its nature is limited, and therefore humans do not have a right to all knowledge in either the philosophical or the ethical sense.
The public also does not have a moral right to all information (as distinct from knowledge), since such a prospect violates the moral rights of other individuals and the welfare of societies. (I will discuss moral rights theory in the next post in this series).
While often presumed to be inherently good, transparency is not neutral, notes Bok. "Publicity…can be used as a tool of injustice and manipulated to skew public opinion," Bok continues, for example, by public officials who surreptitiously leak private information on their opponents.
Secrecy can also be beneficial. Publicity can negatively impact deliberation and policymaking, and in that way, government administration; much like surveillance in civic society can chill speech or influence behavior. Secrecy in military intelligence and law enforcement operations can also permit the government to use the element of surprise to their advantage against adversaries, enemies, and criminals. Moreover, secrecy, in criminal investigations, may protect the innocent.
Secrecy (or willful concealment) and transparency both protect and destroy human beings and political communities, notes Bok.
Secrecy and transparency are both required to create and preserve "identity, plans, action, and property."
Without the power to control information, human beings and societies would never be "sane or free," Bok also writes.
Therefore, secrecy and transparency are limited and always involve ethical or moral choice.
Whistle-blowing v. Leaking
Ethically speaking, whistle-blowing is distinct from leaking.
Whistle-blowers is a term used to describe those who "make revelations meant to call attention to negligence, abuses, or dangers that threaten the public interest," writes Bok . Whistle-blowers make claims "based on their expertise or inside knowledge, often from within the organizations they work," Bok continues.
Whistle-blowing has three elements and associated ethical responsibilities, according to Bok. Those are "dissent, breach of loyalty, and accusation. Their corresponding ethical responsibilities for the would-be whistle-blower are "judgement and accuracy in dissent," "exploring alternative ways to cope with improprieties that minimize the breach of loyalty," and finally "fairness in accusation."
Dissent in terms of whistle-blowing involves disclosing a disagreement with an authority within an organization about "negligence or abuse" involving an "imminent threat" for the purpose of "alerting the public to a risk," and also "assigning responsibility for that risk," Bok also writes.
If no one is responsible, like in the case of a warning about a natural disaster, then the act of disclosure would not be whistle-blowing. Moreover, the dissent of whistle-blowing requires "revelations of neglect and abuse," and not simply "dissent on the grounds of policy," Bok continues. Although, Bok argues that the both may converge.
Finally, since the whistle-blowing involves an "accusation" by an insider, it also involves a "breach of loyalty," which may involve a breach of hierarchy, although the dissent may also be with a "majority view" within an organization, Bok notes. In addition, it may require a breach of promised confidentiality or an oath of secrecy.
On the other hand, leaking, as compared to whistle-blowing, has to do with the public disclosure of administrative secrets that does not concern imminent "danger, negligence, or abuse." Moreover, while leaking may in limited circumstances be used as a "surreptitious form of whistleblowing," writes Bok, more often leaking is a "tool of governing" and "bureaucratic maneuvering." Bok notes:
“"”Administrators may leak stories as trial balloons, to deflect attention from recent failures, or to smear political opponents. And civil servants who want to combat policies or particular decisions may leak selected compromising facts. If a secret plan is sufficiently sensitive, those who learn about it may, in this way, exercise veto power over its execution.”
Undoubtedly, journalism has played a central role as being a conduit of bringing leaks of such information to public attention. More recently, documents are increasingly leaked directly onto the internet, and journalists have become consumers of such information, just like the public. In December 2019, for example, Reddit, a social media site, stated that classified U.K.-U.S. trade documents associated with a previous social media disinformation campaign had been posted on its platform. In instances of influence operations, websites and platforms that enable the publication of raw or hacked intelligence or information are like vulnerabilities in supply chain attacks. In other words, they are the weak nodes of third-party providers and partners that adversaries exploit to penetrate and gain control of the networks and systems during cyber-operations, but here applied to information or influence ones.
Individuals and the public have a legitimate interest in some types of information that journalists have a duty to reveal, notes Bok. In such cases, secrecy can deleteriously impact public welfare, for example, in cases that involve evidence of fraud, waste, or abuse from the government; or in cases that present threats to public safety from, for example, business entities. Such cases may involve instances where relevant information has been made or kept inappropriately secret.
Social pact between government and journalism
Journalists are not merely exercising free speech or engaging in commerce, note experts on the ethics of journalism. The intention to protect society by "provid[ing] citizens with the information they need to be free and self-governing" is where the news media draws its ethical power. The intention and authority to "protect the political community against threats and risks" is also the source from which the Intelligence Community "draws much of its" own, writes intelligence scholar, Ross Bellaby.
The ethics for professions with social contexts, like journalism and intelligence, which rely on practical or functional truths obligate practitioners to balance that pursuit against others ethical interests that preserve society. This is oft-cited as the balance between the transparency required for self-government, including informed consent (the mission of journalism) and the secrecy required for self-defense (the mission of the Executive, the Intelligence Community, and arguably all citizens. Citizenship, after all is a public office, as one constitutional scholar notes).
Part of the ethical calculus for journalists, therefore, includes the "recognition that Constitutional [or legal] protection must not knowingly be socially destructive," notes the Society of Professional Journalists. "[F]or a society to protect a class of people who are hastening its destruction" would be absurd, the Society of Professional Journalists also notes.
The journalist, like the intelligence practitioner, "bears a strong moral obligation to avoid social damage."
Domains of war and peace.
Part of the current dispute regarding the social pact between government and journalism derives in part from the complexity of current day intelligence operations, warfare, and the media vis-a-vis information technology and its role in seemingly eroding boundaries and multiplying force and influence over physical distances.
For example, Assange is a foreign national, who never embedded nor was subject of a security agreement with the U.S. military. Assange, therefore, is arguably not subject to military jurisdiction in Iraq even when he agreed to crack the password on his source's classified Defense Department computer.
War correspondents, who embedded with U.S. forces during World War II, like those who embed today, are subject to military censorship under the Law of War and security agreements, based on current Defense Department policy.
Journalists have also been subject to the Uniform Code of Military Justice (U.C.M.J) during a time of war since the founding of the U.S. There are two punitive articles of the U.C.M.J. that apply to any person during a time of war. That is Article 104 (or aiding the enemy) and Article 106 (or spying).
During world war II, U.S. war correspondents, who were embedded with the armed forces, were subject to the U.C.M.J. In the 1950s, the Supreme Court of the U.S. upheld that "military jurisdiction over civilians 'in the field' during 'time of war'" rests on the "government’s 'war powers.'" During the 1960s, however, the Supreme Court narrowed such jurisdiction for civilians during peacetime.
Then in 2006, "Congress resurrected military-criminal jurisdiction for the tens of thousands of U.S. civilians working for, with, or perhaps even in proximity to the armed forces in Iraq, Afghanistan, and other locations designated as 'contingency operations' by the Secretary of Defense," writes an expert on the Law of War. Contingency operations do not require a formal declaration of war. The amendment may be applicable to embedded journalists, notes the same expert. While such an application would be extreme, it remains plausible, given the legislative history of the U.C.M.J. at the time of its enactment.
However, such an application would rest on civilians, including embedded journalists, agreeing to submit to military jurisdiction in signed writing. Such an application remains more uncertain and dependent on existing case law, as well as Department of Defense policy. It would be more likely embedded journalists would be referred to the Justice Department or host nation for prosecution, according to Phillip Carter of Georgetown Law. Assange's prosecution somewhat echoes such a circumstance.
Yet, part of the calculus for society given information technology's impact on intelligence operations, warfare, and the media, is that journalists have fewer chances to embed, in part because U.S. warfare has increasingly become dominated by airpower and smaller contingents of ground forces.
With fewer opportunities to embed, whether from the lack of U.S. or friendly ground forces, or the increasing violence against journalists by belligerents, or socio-economic trends impacting news coverage of armed conflict (for example, declining foreign bureaus, staff, and budgets, as well as the rise of digital technology), journalists are increasingly reporting on war remotely.
That airpower permits the "incursion of less bodily risk" by the U.S. and its allies, and removes the "politically onerous requirement" or obtaining public consent "for deploying overwhelming ground forces," does not remove the harm from a lack of war reporting.
The resulting information asymmetry, previously discussed in this series, can impact expectations regarding not only informed consent by the public for such activities by the government, but also military objectives on the ground, because the deficit of public information and oversight cedes the information space to the adversaries of the U.S. and its allies. Former U.S. intelligence officials interviewed in a study I conducted with my co-author, Luis Rodriguez, about their role in the public and political discourse noted that the same was the case "in the aftermath of the recent mass leaks of classified information or influence operations."
Writing in his memoir about the changing expectations from the U.S. public regarding secrecy and espionage, former CIA and NSA director, retired U.S. Air Force Gen. Michael Hayden, writes: "Now the governed are reconsidering how they want to grant that consent. And many are saying that fully and currently informing the intelligence committees in Congress is no longer enough. 'That’s [sic] consent of the governors,' they seem to be saying, 'not of the governed. You may have told them, but you did not tell me.'"
Yet, determining if the status quo quasi-truce between the press and the U.S. government has changed since world war II remains somewhat anecdotal, in part because much of the information required to quantify that analysis is Secret.
The Obama administration oversaw "nine criminal cases involving unauthorized disclosures of government secrets for public consumption," writes journalist and author Charlie Savage. "[U]nder all previous presidents combined, there had been only about four such cases, depending on how they are counted," Savage continues. "[I]t was virtually unheard of, until very recently, for the government to treat as a crime the unauthorized public disclosure of military and intelligence information," Savage concludes.
According to former Attorney General Jeff Sessions, under the Trump administration, the "Justice Department is pursuing about three times as many leak investigations as were open at the end of the Obama era."
Yet, it is remains unclear whether the proportion of administrative and criminal investigations into unauthorized disclosure of classified information for public consumption has actually increased or decreased relative to the volume of classified information created or obtained by the federal government since 1947, when the classification system was established.
 Evidence suggests did so from U.S. Navy Commander Morton T. Seligman.
 Gates stated, "The [DIA] IRTF did not conduct a full damage assessment due to the interagency nature of the disclosed material and of the risk incurred. The Office of the National Counterintelligence Executive in the Office of the Director of National Intelligence (DNI) has the mandate to conduct damage assessments in these circumstances."
Here is my disclaimer on post about WikiLeaks.
This post part of a series: