The War On Whistleblowers Claims Another Casualty

Failures

from the stop-telling-people-how-the-government-is-fucking-with-them dept

Another whistleblower will be going to jail. Thanks to the application of the Espionage Act, former FBI special agent Terry Albury wasn’t able to defend his leaking of FBI internal documents to journalists (most likely The Intercept) by claiming he leaked to expose noxious FBI tactics and behavior. Defenses predicated on public interest aren’t allowed in Espionage Act trials, meaning Albury’s decision to plead guilty is there to limit the number of years he’ll spend incarcerated, rather than an indication his leaks were meant to harm the government.

Albury’s attorneys released this statement to the Columbia Journalism Review shortly after his court hearing.

Terry Albury is a good and honorable man. His conduct in this case was an act of conscience. It was driven by his belief that there was no viable alternative to remedy the abuses he sought to address. He recognizes that what he did was unlawful and accepts full responsibility for his conduct, which he has demonstrated by reaching an agreement with the government to plead guilty.

Albury’s statement while entering his plea pointed to internal FBI problems that personally affected him. These apparently pushed him towards leaking documents, as the issues described likely made use of proper channels impossible. When the problem is systemic racism, there’s little hope an African-American agent is going to find anything more than vindictive behavior and recrimination by staying within the walls of the Bureau.

In his plea, Mr. Albury acknowledged that the facts outlined by the government were accurate and that he had acted with the knowledge that he was breaking the law. His lawyers, JaneAnne Murray and Joshua Dratel, said in a statement that he viewed his disclosures as “an act of conscience” in the face of racism at the F.B.I.

“It has long been a critique of the F.B.I. that it consists of and reflects a predominantly white male culture, which, as a result, has often treated minority communities with suspicion and disrespect,” the statement said. It added that Mr. Albury — who was the only African-American field agent in the Minneapolis office — had decided to act after he was assigned to the bureau’s counterterrorism team and “was required firsthand to implement F.B.I. investigation directives that profiled and intimidated minority communities in Minnesota and other locations.”

The leaks cited here are only part of the set of documents given to journalists. They detailed the FBI’s internal rules for finding and developing informants. Agents are given a lot of latitude to pursue people they want to turn into informants. The lack of controls or oversight led to plenty of profiling by the agency, resulting in the targeting of marginalized groups disproportionately. This process allowed FBI agents to leverage anything and everything against targets to turn them into confidential informants. This included the threat of deportation or blocked visa applications if the target was a foreign citizen in the United States. As the article at The Intercept notes, the FBI would routinely deport informants whenever they ceased being useful.

But there’s more to the leaks than pursuing Muslims or black teens or whoever the FBI felt would be most-easily leveraged or likely to have criminal contacts. The leaked documents also contained info about the FBI’s surveillance of journalists — all part of the Obama Administration’s war on leakers.

In 2015, after several scandals involving the surveillance of reporters from the Associated Press and Fox News during the Obama administration, former Attorney General Eric Holder announced an update to the Justice Department’s “media guidelines,” which implemented strict rules for when the government is allowed to use subpoenas, court orders, or warrants to spy on reporters’ communications. However, the guidelines conspicuously exempted NSLs from the rules, meaning the FBI or Justice Department could use NSLs to circumvent the strict media guidelines and spy on reporters without any court oversight.

This may look like a crackdown on FBI spying, but in reality, it allowed the FBI to misuse NSLs to obtain records pertaining to journalists’ contacts, presumably in hopes of sniffing out leakers and whistleblowers. The only check against abuse is internal: an agent deploying an NSL targeting a journalist must obtain permission from the FBI General Counsel or a supervisor in the national security division. Considering both the GC and NatSec brass would be just as interested in finding and exposing whistleblowers and leakers, obtaining permission for an NSL is likely laughably easy.

What Terry Albury exposed was the FBI’s abuse of internal rules to target certain demographics and surveil journalists. This was classic whistleblowing but it’s being treated as classic espionage, despite the absence of malicious motive or the direct delivery of documents to an enemy foreign power. But that’s the way this law rolls. And as long as it can be used to punish whistleblowers, it will never be changed.

Filed Under: espionage act, fbi, leaks, racism, terry albury, whistleblowers