Thanksgiving Fun: The Prez’s Memo on Insider Threats…and Anti-Whistleblowing Pursuits?

Updated below.

Last Wednesday was Nov. 21, the day before a long Thanksgiving weekend when most journalists, employees, and majority of the American populace are distracted by traveling or preparations. On that day, the POTUS signed the below Presidential Memorandum.

National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs

This Presidential Memorandum transmits the National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs (Minimum Standards) to provide direction and guidance to promote the development of effective insider threat programs within departments and agencies to deter, detect, and mitigate actions by employees who may represent a threat to national security. These threats encompass potential espionage, violent acts against the Government or the Nation, and unauthorized disclosure of classified information, including the vast amounts of classified data available on interconnected United States Government computer networks and systems.

The Minimum Standards provide departments and agencies with the minimum elements necessary to establish effective insider threat programs. These elements include the capability to gather, integrate, and centrally analyze and respond to key threat-related information; monitor employee use of classified networks; provide the workforce with insider threat awareness training; and protect the civil liberties and privacy of all personnel.

The resulting insider threat capabilities will strengthen the protection of classified information across the executive branch and reinforce our defenses against both adversaries and insiders who misuse their access and endanger our national security.

BARACK OBAMA

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In light of the breathless pursuit of whistleblowers under the Obama Administration,the significance of the memo appears clear in some ways. But in other ways, its added benefits to the voracious pursuit of Executive power by POTUS and his DOJ staff are as of yet hard to pinpoint.  Still, from the first paragraph to the last, this 183 word document is short, ambiguous and pointed in its wording.  It refers to a “National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs (Minimum Standards).” I haven’t been able to find a copy of the Minimum Standards Policy: but it appears to be a template by which to shield the national intelligence apparatus from classified information leaks by high-level employees, who presumably have access to “vast amounts of classified data on available on interconnected United States Government computer networks and systems.”

The Program appears to be authorized to monitor and intercept all “classified” communications by national intelligence employees for the purpose of pre-empting1. National security threats or 2. Whistleblowing. Or both.

As noted above, the memo’s timing is noteworthy. Also of note: exactly one week before this memo was signed, Sen. Ron Wyden of Oregon blocked the passage of NDAA 2013 through Congress without a public debate. Wyden cited several serious concerns about sections 505, 506, and 511, all of which involve internal national security threats.  As most news junkies will remember, NDAA 2012 was controversial for Sec. 301, which gave POTUS the authority to direct the arrest and detention of any US citizen or foreign nationals anywhere in the world on suspicion of terrorist activity. It was hotly discussed in the month before its passage and signing into law by POTUS, who initially insisted that he was not interested in such expansive executive authority. The blatant falsity of that position was revealed by Sen. Carl Levin, who pointed out before the Senate that in fact, the White House had threatened to veto the bill unless it explicitly included the section for expansive indefinite detention powers by the Executive.

This year’s NDAA pursues a similar expansive, pre-emptive power on the part the US state. Wyden explains his objections to sections 505 and 506 here. Section 506 is more troubling than 505: according to Wyden, it would prevent unauthorized, unclassified briefings form intelligence agency experts unless they were on the record. This section does 2 things: it prevents intelligence experts from informing the press about issues that they and the public should be given an inkling about. Second, it buttresses the DOJ’s legal authority to go after unauthorized leaks. Wyden’s objection to Sec. 506 stems from his view that “authorized, unclassified background briefings from intelligence agency analysts and experts are a useful way to help inform the press and the public about a wide variety of issues, and there will often be good reasons to withhold the full names of the experts giving these briefings.”

The third section that gives Wyden pause—correctly—is Sec. 511, which would authorize the head of National Intelligence to punish wayward whistleblowers by shutting down their pensions—an effective obstacle to airing wrongdoings, to say the least, especially by lifers who are close to retirement.

So, how does the Thanksgiving memo fit in? Hard to say, given the strange decisive yet ambiguous wording of the memo and the unknown details of the Minimum Standards Program. But this memo appears to break down the obstacle correctly created by Wyden’s opposition to NDAA 2013.  In effect, it seems to imprint an Executive decree that allows National intelligence officials to legally monitor all cyber-doings by its employees so as pre-empt them from passing on any unfavorable, unethical, or unseeming information to any sources outside the agency—even if for the purposes of ethical accountability:

“These elements include the capability to gather, integrate, and centrally analyze and respond to key threat-related information; monitor employee use of classified networks; provide the workforce with insider threat awareness training; and protect the civil liberties and privacy of all personnel.

Still, it feels a bit redundant. Is it? Or Is it a new angle on espionage-prosecution policy to augment all the hard work and efforts of DOJ over the last 4 years?

It’s not too coy to point out that the document comes on the heels of a protracted prosecution of John Kiriakou, a former CIA agent who blew the whistle on torture. It is also signed as the military trial of Pfc. Bradley Manning on charges of espionage and “aiding the enemy,” begins in Fort Meade, MD. Manning, who has been kept in solitary confinement continuously since May 2010, while deprived of multiple basic humanitarian needs all for turning over classified documents to Wikileaks. It was an act that, in different proportions, has created havoc for both Manning and Wikileaks founder Julian Assange.  Manning’s trial has gotten little notice, but is being covered by excellent advocacy journalists such as Kevin Gosztola and Nathan Fuller.

One final point: This memo appears to cement or clamp down even further on potential whistleblowers. By contrast, as financial regulator and anti-fraud expert William Black mentioned to me last night, the recently passed Dodd-Frank bill seems to lean in the other direction. It puts forth a strong anti-retaliatory provision, known as the “Bounty Hunter provision,” which allows whistleblowers in private corporations to sue for millions if they can provide the SEC with solid evidence that their activities were met with attempts to fire them.

Speculatively, what better way to pound another nail in the defilement of Constitutional checks and balances than to sign a deliberately ambiguous memo enabling National Intelligence officials to monitor and police their employees–using some new lens? Or just to police even more closely for signs of conscience or morality? We know both sides of that coin: leaks and threats to national security are how government officials, who are only a knife’s edge away from complete immunity, describe the moral calls to accountability on the parts of still concerned citizens and government public figures.

The persecution and prosecutions of Thomas Drake, John Kiriakou, Bradley Manning, were part of a series of never-ending moments designed to find new ways to expand the immunity of government officials, who continue to engage in wanton wrongdoing and who want the unencumbered capacity to monitor, police, and threaten anyone in their offices who dares to disagree. This memo—at the risk of being underdramatic—seems to be another ode to the expansion of executive authority.  Kudos to POTUS. Another year, another splintering of the few fenceposts remaining that were meant to restrain him and his posse. Check, mate.

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Update (9:51 am EST): Here’s another speculation about the weird timing and wording of the memo:

Marcy Wheeler has this compelling argument about the timing of the public “release” of the “Drone Rule Book.” In the last paragraph of her post, she argues, it might have to do with backdating the logic behind targeted killings in the event that someone down the line like the Hague might order some accountability. I agree, and wonder if this Memo isn’t part of some effort to keep closer tabs on what National Intelligence employees release, so as to avoid inconsistencies between an Administrative effort to backdate the logic behind the Rule book and emails or other classified communications?

From the post over at emptywheel:

These awkward targetings are almost certainly precisely the reason the Administration refuses to make more information about its targeting program public: because they prove the program was never as orderly or legally sound as the Administration publicly claims. So the “rule book,” purporting to show the reasoned deliberations behind these screw-ups, might be one way to spin them as reasoned (and legal). I have suggested that some of the public statements about the drone program might have served as legal cover if ever anyone thought to prosecute Administration officials for killing civilians. Perhaps this “rule book” was designed to do the same?

Thus far, most of the treatment of the “rule book” has presumed it was meant to be prescriptive, and it might well have been. But it’s also possible the “rule book” was meant to be (falsely) descriptive, an effort to spin the program just as a group of potential critics got read into the program.

Update: Matthew Aid’s take on this seems to support my suspicions: this “rule book” is about the eventual review of this program.

A State Department official who recently left his post for a better paying job in the private sector admitted that there is deep concern at State and Justice that sooner or later, a court in the U.S. or in The Hague will issue a ruling on the question of the legality of these missions, which many in Washington fear will go against the U.S. government position that these strikes are legal.