Marcy Wheeler: Are FBI and NCTC Trying to Pressure Prosecutors to Charge the Second Intercept Source?

Citing “law enforcement and intelligence sources who have been briefed on the case,” Michael Isikoff reports that the government has identified “the second leaker” – a source of information on drone targeting and terrorist watchlisting for The Intercept.

The FBI has identified an employee of a federal contracting firm suspected of being the so-called second leaker who turned over sensitive documents about the U.S. government’s terrorist watch list to a journalist closely associated with ex-NSA contractor Edward Snowden, according to law enforcement and intelligence sources who have been briefed on the case.

The FBI recently executed a search of the suspect’s home, and federal prosecutors in Northern Virginia have opened up a criminal investigation into the matter, the sources said.

Because it raises questions about whether the Administration has the “appetite” to prosecute another source for journalists, the article seems designed to generate pressure to do just that – to get Congress (among others) to demand that the Justice Department prosecute this source.

But the case has also generated concerns among some within the USintelligence community that top Justice Department officials – stung by criticism that they have been overzealous in pursuing leak cases – may now be more reluctant to bring criminal charges involving unauthorized disclosures to the news media, the sources said. One source, who asked not to be identified because of the sensitivity of the matter, said there was concern “there is no longer an appetite at Justice for these cases.”

While Isikoff outlines the content of The Intercept’s watchlist story, he leaves out several details that may make DOJ less interested in prosecuting this leak.

First, two courts have ruled that people on the No Fly List receive due process regarding their status. Significantly, in June, an Oregon judge presiding over an ACLU lawsuit on behalf of 13 people on the No Fly List ruled the process unconstitutional and ordered the government to come up with a more meaningful redress system for people on the list.

In [the] ruling, the court agreed with us that the redress procedure “falls far short of satisfying the requirements of due process,” and is “wholly ineffective.” The court warned that “without proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the No-Fly List” – precisely what has happened to our clients and many others on the List.

[snip]

The court ultimately concluded that the lack of any meaningful opportunity to contest their placement on the No Fly List violates our clients’ constitutional due process rights. The government now has to come up with a new process that satisfies the Constitution, including officially telling our clients whether they are on the No Fly List, providing reasons for their inclusion, and giving them the ability to contest the basis for that inclusion before a judge.

Earlier this month, 7 of ACLU’s clients in that lawsuit got cleared to fly. The government will have to start providing ACLU’s other clients some kind of redress process by January.

Whatever process the government develops going forward, it will bring more transparency to precisely the system disclosed in The Intercept’s watchlisting story.

At the same time, a number of other disclosures have raised questions about the watchlist. Most notably, Dick Cheney’s biographer, Stephen Hayes, briefly got put on the Selectee watchlist requiring additional screening; he believes that’s because he booked a one-way flight to Turkey for a Mediterranean cruise. Hayes is probably correct: as the document disclosed by The Intercept make clear, the government may, in fact, watchlist a person for “Travel for no known lawful or legitimate purpose to a locus of TERRORIST ACTIVITY.” Just this week, Hayes announced he appears to have gotten off the list.

Additionally, senior officials have had to explain that the numbers – in the hundreds or even thousands – routinely offered for the number of Americans who have traveled to fight with ISIL are inflated for precisely that reason: anyone who travels to Turkey without a known reason gets watchlisted – and counted as an ISIL fighter. In reality, there are maybe 20 to 30 Americans fighting in Syria.

Perhaps most amusing is the story behind the “Jetsetting Terrorist,” a blog started in June. As Forbes recently revealed, the “terrorist” is Peter Young, an animal rights activist convicted of a misdemeanor for freeing minks in 3 states in 1997. Young’s blog documents the he gets as a frequent flier on the Selectee treatment, including how he invoked his Selectee status to jump to the front of a very long TSA security line. Young has also provided more significant details (details that mirror those in the leaked document), such as that TSA Agents have to call the FBI every time a selectee flies.

The point is, many more details about the No Fly and Selectee processes will be coming out in upcoming months – both through the ACLU lawsuit and related new redress policy and through Young’s blog (unless blogging about being a Selectee gets one removed from the list!). Those details will be coming out against the absurd background of Cheney’s biographer being branded a terrorist because he took a Mediterranean cruise.

Not only will aspects of these lists become less justifiable, but they will become public, one way or another.

That likely provides another reason why DOJ may hesitate to charge The Intercept’s alleged source: by the time any case went to trial, the alleged source’s disclosures would look banal by comparison. Any such prosecution would look like overkill.

That may well be true. But it appears that those requesting and carrying out the investigation want to push for precisely that kind of overkill.

Investigative journalist Marcy Wheeler writes the “Right to Know” column for ExposeFacts. She is best known for providing in-depth analysis of legal documents related to “war on terrorism” programs and civil liberties. Wheeler blogs at emptywheel.net and publishes at outlets including the Guardian, Salon, and the Progressive. She is the author of Anatomy of Deceit: How the Bush Administration Used the Media to Sell the Iraq War and Out a Spy. Wheeler won the 2009 Hillman Award for blog.

Reprinted with permission from ExposeFacts.