The Intercept has obtained new data that adds significant detail to the information we already have about Donald Trump's incessant campaign against whistleblowers, leakers, and members of the intelligence community. According to a trove of records that the Department of Justice released to Project On Government Oversight (POGO) in response to a Freedom of Information Act suit, Trump's administration referred more media leaks to criminal investigation every year than any of his predecessors. The CIA was responsible for the majority of these leaks. The DOJ records give unprecedented detail about media leak referrals. They include the source agency, date and classification of suspected disclosure. Records also reveal that the CIA accounts for over 64 percent of all referrals. Only 15% of all referrals were made to the National Security Agency, which is second most popular agency. These documents show a dramatic rise in leak referrals, also known as crime reports from CIA, since 2017, when Mike Pompeo was the head of the spy agency. Many of these referrals were for leaks that occurred months or even years before the Obama administration. This raises questions about their validity. The Intercept previously reported that criminal leak referrals rose to 120 in 2017, a level not seen since 2005. In 2018, Trump's Justice Department received 88 referrals, while 71 were made in 2019. This is still a significant increase from the years prior to Trump becoming president. 55 referrals were received in the first three quarters 2020. More leak referrals were received by the Justice Department in the first three years under Trump than any other period over the past decade-and-a half.A database of leaks and unauthorized disclosures of information that has been referred to the National Security Division at the Justice Department since January 2007. This data was released in a FOIA lawsuit by the Project on Government Oversight. Chart: Soohee Cho/TheInterceptAccording to former and current national security officials, there are likely many reasons why the CIA is so prominent in leak referrals. Some of these reasons may be more benign than others. One former CIA official cited the high number of leaks related to Russia. One former CIA official pointed out the frequency of media leaks related to the Russia investigation. The former CIA official recalled that agency officials were in general agreement that the leaks came not from Langley, but from the House Intelligence Committee. This oversight committee had access to CIA intelligence. Another explanation for the CIA's prominence in leak referrals is, as a former FBI official bluntly stated, that the CIA fucked the [Aldrich] Ames cases so badly that the embarrassing spy scandal led to the FBI's permanent presence at the CIAs counterintelligence centre. While the military can contribute referrals to the CIA, it prefers, according to a senior Pentagon official, to keep leak investigations in the military justice system. These factors are not responsible for Trump's rise in referrals.The new DOJ documents, which reveal the most comprehensive picture of a leak-hunting operation, dwarfing those of previous administrations, are revealed amid recent revelations about the Trump administration's attempts to obtain communications records from reporters at CNN, New York Times and Washington Post. The secret subpoenas were withheld by gag orders in the cases recently disclosed. Joe Biden, the President, declared that he wouldn't allow the seizure records of reporters. He was apparently unaware that the Justice Department had sought to do the same thing and had issued a gag order against The New York Times. The Biden White House claimed it did not know anything about the Times gag order and soon the Justice Department announced a new policy for reporters involved in leak investigations. Gabe Rottman (a program director at the Reporters Committee for Freedom of the Press) said that we need an accurate accounting of these three cases and how these secret record seizures are connected to the 2017 anti–leak initiative. Rottman has been following the government's attempts to prosecute journalists and spy on them. While only a few leak referrals result in investigations and only a fraction of them will lead to criminal charges, Rottman has been tracking the government's attempts to prosecute sources and spy on journalists. The Trump administration's raw numbers could indicate that there will be more prosecutions. Even if there is no formal prosecution, an investigation by the government can have a serious impact on a federal employee's personal and professional lives. It can also cost a significant amount in defense fees and discourage others from disclosing any information. Although the government had a lot of information removed, including names of news articles and the suspected disclosures, we were able identify articles that led to referrals. Some referrals led to indictments. Many seem to align with the Trump administration's prosecutions of Reality Winner, Terry Albury and Daniel Hale.Political Prosecutions Trump has made no secret about his animosity towards the media and his desire to prosecute any suspected leakers since the beginning of his presidency. Trump stated that he had called the Justice Department to investigate the leaks during a press conference in February 2017. Trump said that he had called the Justice Department to investigate the leaks. Sessions stated this during a February 2017 press conference. Sessions also noted that 27 investigations were currently being opened by the Department of Justice against nine that were open in the past three years under President Barack Obama. According to a former FBI official, the FBI created a media-leaks unit in 2017 to address the complex nature of media leak threats and unauthorized disclosure. William Barr, Sessions' successor as attorney general, held a news conference about the Mueller report. He explained again how Trump still felt animus toward those who revealed information to the media, particularly in relation to Russia. Barr referred to Trump's actions that are described in Mueller report as possible examples of obstruction of justice. He said that Trump was frustrated and angry by the Mueller investigation, and that he was fueled by political enemies.Data taken from DOJ records on leaks and unauthorized disclosures between 2007 and 2019. The leaks attributed the CIA may have been from other government agencies and branches that deal with information related to the CIA. Chart by Soohee Cho/TheInterceptPompeos Surge Trump's obsession with leakers was evident to his subordinates. Eight days before Trump's inauguration, former Rep. Mike Pompeo (R-Kan.) testified before Senate Intelligence Committee. He was presenting his nomination as CIA director. When Sen. Angus King (I-Mass.) asked him a question about media reports that Trump campaign contacts were made with the Russians, Pompeo swiftly retorted, saying, "There are a lot of very serious things that have occurred." Pompeo stated that preventing leaks is a top priority in his first interview since being confirmed as CIA director in July 2017. Pompeo told Washington Free Beacon the insatiable media demand for leaks poses enormous risks to America. He said that he was confident that the administration will do its best to find those responsible once all the secrets are released. This was not just rhetoric. Under Pompeos leadership, the CIA sent a flood of criminal leak referrals (Juvenile Department) regarding news stories it believed were based on classified information. The CIA submitted 75 media leak crime reports (75 more than any year since 2007) to the DOJ in 2017. However, a closer look reveals that most of the CIA's media leak referrals to the DOJ under Pompeo were based upon alleged leaks that occurred during the Obama administration. In the 10 years preceding 2017, 93 per cent of CIA referrals to Justice Department were made in the same year as the CIA opened a case on a possible leak to the media. This only happened 41 percent of times in 2017, suggesting that Pompeo conducted a lookback investigation to find leaks. Although he couldn't speak specifically to CIA referrals, David Laufman, a former Justice Department official said that there was a spike in referrals in 2017. The department asks agencies to answer 11 questions in order to determine whether it should open an investigation. This list asks questions like whether the published material can be trusted and whether it can be used in a prosecution. An investigation could confirm the truth of a news story, while a prosecution could lead to further public revelations. These potential disincentives could be discouraged by the government from investigating and prosecuting. The majority of older media leak cases that the CIA sent the Justice Department in 2017 were opened originally by the spy agency back in 2016, although some dates back to 2014 or 2015. Older cases can be more difficult to prosecute because witnesses' memories and suspects may fade, and evidence may be more difficult to find.Mike Pompeo, former director at the CIA, and U.S. Secretary of State nominee under President Donald Trump, listens to the confirmation hearing of Senate Foreign Relations Committee in Washington, D.C. on April 12, 2018. Photo: Andrew Harrer/Bloomberg via Getty ImagesPompeo was appointed secretary of state in April 2018. His senior aides began leak investigations within months after news reports about internal discussions at the State Department surfaced, according to Axios reporting. This despite the fact the information in question was not classified. Pompeos spokesperson stated that the State Department is always concerned about unauthorised release of classified information. According to POGO, there were no criminal referrals made by the State Department under the Trump administration. In 2018, and 2019, the CIA shifted to the normal of sending media leak referrals back to the Justice Department in the same year it opened a case regarding the suspected classified leak. The CIA declined comment. A Constitutional Collision Political pressure was intense on the Justice Department. The Counterintelligence and Export Control Section of the DOJ, which is the central point for criminal leak investigations when classified information is involved in government efforts, reports frequent high-level meetings about leaks. Laufman, who oversaw the Justice Department's investigation of media leaks between late 2014 and early 2018, said that while the Justice Department pursued leak investigations with great vigor, the Trump administration has made it more difficult. Laufman stated that he doesn't condone the unauthorised disclosure of classified information to media. However, the tension between national security secrets and First Amendment activity is a classic collision with two important constitutional interests that can prove difficult to navigate in normal times. Laufman stressed that he does not recall any instances during his time at Justice Department when there was pressure to change the assessment of a career lawyer in a case involving the unauthorised disclosure of classified information to press. He said that we did not change our standards for evaluating these referrals or for deciding whether to open investigations. I am confident that the National Security Division's career attorneys, the line attorneys who review leak referrals and assess their prosecutorial merit, and their supervisors will not allow political considerations intrude upon their work.The president's complaints about leaks may have encouraged agencies to file more DOJ criminal referrals about suspected leaks.Laufman felt that agencies wanted to show that they were part of the team supporting the crackdown on leaks. Political appointees who are generally eager to please the White House can influence the composition of cases before the Justice Department's career prosecutors who investigate leaks. According to David Pozen, a Columbia Law School professor who published a study on leaks in government in Harvard Law Review 2013, it appears that many agencies have politically connected appointees. Pozen noted that the DOJ consults often with agencies referring cases to determine if an investigation is necessary. This can provide an effective veto for the leaders of critical agencies. According to Steven Aftergood, an expert in government secrecy at the Federation of American Scientists, the drumbeat of leak complaints from the president and senior officials might have encouraged agencies to file more criminal referrals to DOJ regarding suspected leaks. He has previously received a large number of referrals. The Department of Justice's National Security Division did not respond to our request for comment. Digital Disclosures and Electronic Evidence Trump's war against leakers is not new. For leaking sensitive information to the press, the Obama administration was heavily criticized. The national security establishment supported Obama's crackdown with broad support. Only a few of the FOIA records' referrals appear to be related to the publication of material by former Army Pvt. Chelsea Manning provided WikiLeaks with the information, and Edward Snowden provided it to journalists. These episodes demonstrated that insiders could quickly download and distribute large numbers of government records. This is a far cry than the days of Anthony Russo and Daniel Ellsberg, who photocopied thousands upon thousands of pages from the Pentagon Papers before having to physically transport the multivolume secret history about the Vietnam War. The State Department issued one of the few criminal referrals it made in the time period 2007-2019, four days after WikiLeaks' first cable about Iceland published by Manning. The Guardian's first story based upon Snowden's NSA records, which showed how surveillance programs were obtaining huge amounts of American communications information, was published on February 22, 2010. On June 6, 2013, two days after WikiLeaks published its first State Department cable regarding Iceland. These bulk leak cases in which many secret documents from the government were revealed angered many members of Congress and the national security apparatus. These cases led to Espionage Act prosecutions that resulted in Manning's conviction. Snowden fled the U.S. after his role in disclosing records became public. He currently resides in Russia, which is out of reach for U.S. law enforcement agencies.The Guardian published its first Snowden-based story on the same day, and two criminal referrals were made by the NSA. Document: Department of JusticeThe Justice Department has always been cautious about using the Espionage Act against journalists. Jeffrey Sterling, a former CIA case officer, was indicted for allegedly leaking material to James Risen (then at the New York Times) and facing prison time. Although the Bush-era subpoena was renewed by the Obama administration, the case was eventually dismissed. This set a worrying precedent for many in the press freedom community. The Justice Department indicted Julian Assange (head of WikiLeaks) for violating the Espionage Act as well as an anti-hacking statute. Assange was charged with helping Manning crack a Defense Department password. The FOIA records also show other referrals that seem to match articles that haven't led to indictments. The DEA, for example, sent a criminal referral in May 2015 to the Justice Department. This was the first criminal referral it had filed between 2007 and the end of 2019. USA Today's story highlighted that not all of the intelligence program exposed by USA Today was classified. For instance, less than a month after USA Today revealed new details about a massive secret warrantless surveillance program conducted by the Drug Enforcement Administration, the DEA sent a criminal referral to the Justice Department in May 2015. This was the only one it filed from 2007 through the end of 2019.USA Today published details about a large DEA surveillance program shortly after. The agency then sent a criminal referral directly to DOJ. Document: Department of JusticeTechnology has made it possible to make bulk disclosures by people such as Manning and Snowden, but it has also made leak investigations easier, according to Paul Rosenzweig (a former federal prosecutor). Agency computer systems record when users access and print documents. Video surveillance systems also track employees' movements at work. These insider threat programs grew in popularity under Obama, particularly after the Manning-Snowden revelations. This has boosted agency electronic surveillance efforts. It is now possible to track people's location using their mobile phones. There are also many forms of digital communication such as email and social media. Leak investigations that were previously difficult have become much simpler thanks to the electronic trail left by web browsers. Rosenzweig, co-editor of a 2015 book about whistleblowers, stated that all the tools available to track dissidents can be used to find out who is leaking, and who their journalist contacts are. Although the agencies have been quick to defend insider threats programs as vital to national security, these surveillance programs and the prosecutions that result from them often confound whistleblowers who expose government wrongdoings with terrorists or spies. In 2018, a federal watchdog warned that they could stop lawful whistleblowing as well as investigations into corruption and other government wrongdoing. Obama's Crackdown Although there has been criticism of Obama's crackdown for many years, it reached its peak in 2013 when one particularly alarming leak investigation was revealed. Obama's Justice Department took steps to reduce its criminal enforcement of media leak cases due to bipartisan outrage. Between April 2012 and May 2012, more than 20 Associated Press telephone lines were secretly wiretapped by the Justice Department (FBI) and FBI. The department did not explain why they wiretapped the phones. However, the Associated Press published a May 7th 2012 report detailing how U.S. intelligence prevented a terrorist attack on civilian aircraft using bombs concealed in underwear. Reuters reports that although an investigation was already in progress, the CIA filed a media leak crime report to the Justice Department after reading the APs story. The news of the wiretapping was made public in the following year. A court filing revealed that the Obama Justice Department had unindicted a Fox News reporter in an Espionage Act case. These revelations indicate a pattern in intimidation by Obama's administration, according to Rep. Eric Cantor, a Republican majority leader in Virginia. This criticism prompted the Justice Department's to change its position. Eric Holder, Attorney General, stated in a July 2013 report that the DOJ would work with other Administration officials to examine ways in which intelligence agencies can, in the first instance to address information leaks through administrative means such as the removal of security clearances or imposition of additional sanctions. This appears to be a shift. New FOIA records reveal a decline in media leak referrals to Justice Department over the past two years, especially from the CIA. However, this did not mean that investigations and prosecutions were not possible. Although the cases were fewer, they were still referred and ongoing investigations continued. Some of these investigations had been years in the making. Retired Marine Corps Gen. James Cartwright was the focus of an Obama-era investigation. He was accused of disclosing classified information to Newsweeks Daniel Klaidman and New York Times reporter David Sanger about a cyberattack on Iran's nuclear program. According to records POGO obtained, two weeks after Klaidman published his February 13th 2012 article, the NSA referred three cases to the Justice Department. The NSA claimed that Top Secret Codeword information was being disclosed to the media. Holder assigned the case, a U.S. Attorney whose jurisdiction included the NSA, to Rod Rosenstein a week after Klaidman published the article in the Timess Sanger on February 13, 2012.Two weeks after Newsweek published a story about a cyberattack on Iran's nuclear program, three criminal referrals were sent by the NSA to the DOJ. They claimed that Top Secret Codeword information was had been divulged. Document: Department of JusticeIn October 2016, four-and-a half years later, the Justice Department released a press release in which Cartwright pleaded guilty in connection to the unauthorised disclosure of top secret information to journalists. Cartwright's case and the one against David Petraeus, former CIA director, were among very few leak investigations that resulted in criminal charges. Commentators have noted the disparity between lower-ranking employees who reported concerns and those who were charged, as well as the impunity of senior appointees who leak seemingly self-serving information. One case involved a high-ranking Obama appointee releasing classified material to Zero Dark Thirty's filmmakers. This film, which depicted the Osama Bin Laden manhunt and showed the Obama administration as positive, was a good example of this. McClatchy reported that the Pentagon had sent the Justice Department a referral back in September 2012. The records obtained by POGO confirm this. This case did not result in an indictment. Mike Zummer, an ex-FBI agent and founder Protect the FBI, a whistleblower advocacy organization, stated that the Justice Department's internal investigations are intended to serve the department's own interests and those of its top-ranking officials. Therefore, DOJ internal investigators hide wrongdoing by high-ranking officials unless they are under pressure from Congress or the media. They also abuse their authority to intimidate and stop them from disclosing embarrassing department misconduct. In a statement made October 2012 by Rosenstein, Rosenstein stated that anyone who gains access to classified information after promising to not disclose it should be held responsible. Obama pardoned Cartwright three days before Trump's inauguration. Obama commuted Manning's 35-year sentence. Many had criticised Mannings harsh sentence for being too long after she had served seven.Retired General James Cartwright, left, arrives at a hearing with Greg Craig, left, in Washington, D.C., Oct. 17, 2016. Photo by Mark Wilson/Getty ImagesShaping public perception. The full impact of Trump's crackdown on leaks classified information may take many years to realize. Many of the cases that led Obama to indictments, such as the one involving NSA whistleblower Tom Drake, began while George W. Bush was president. It took many years to investigate. Recent revelations about the Trump administration's attempts to seize digital communications records of journalists and call records that were connected to members Congress have prompted calls for greater transparency and accountability. The Justice Departments inspector general has launched a review. Every government attempts to manipulate and manage public opinion and perception. Perhaps nowhere is the president's power to influence public awareness more than in the area of national security. Aftergood, a Federation of American Scientists expert, stated that the purpose of the national safety classification system is to protect national intelligence from any potential damage from disclosure of sensitive information, such as the identities of intelligence sources and pending military operations. However, the power to classify information is largely determined by the president's authority. This also means that the ability to influence and shape public awareness.It is important to see reality clearly. Sometimes, leaks can be helpful.
