ANALYSIS: Did The Intercept Bungle the NSA Leak?

The Intercept launched in early 2014 in part to publish and explain documents previously released by famous onetime National Security Agency (NSA) contractor Edward Snowden. The idea was to appeal to whistleblowers throughout the government, and indeed, over the past few years, the digital magazine has brought forth significant stories on the U.S. intelligence and national security apparatus.

On its site, the Intercept provides a tutorial to prospective leakers throughout U.S. officialdom. It advises them to take advantage of its SecureDrop server, for instance, and warns them to be careful about their internet habits. “If you have access to secret information that has been published, your activities on the internet are likely to come under scrutiny, including what sites (such as The Intercept) you have visited or shared to social media,” reads the guidance. “Make sure you’re aware of this before leaking to us, and adjust your habits as needed well before you decide to become our source. Tools like Tor (see above) can help protect the anonymity of your surfing.”

Also: “Don’t contact us from work.”

Based on U.S. government documents released on Monday, it’s fair to say that Reality Leigh Winner didn’t apparently follow all those warnings. According to the Justice Department, 25-year-old Winner, of Augusta, Georgia, has been charged with removing classified material and mailing it to a news outlet. She was arrested on Saturday; since February, Winner, previously on active duty with the Air Force, was working as a contractor for Pluribus International Corp. and assigned to the NSA.

Though the charging documents related to the case don’t identify the news outlet, The Washington Post and NBC News have confirmed that the Intercept has published the material allegedly leaked by Winner. Very recently, in fact: On Monday, the digital organization published a rather eventful exclusive under the headline, “Top-Secret NSA Report Details Russian Hacking Effort Days Before 2016 Election.” The piece detailed a complicated and industrious effort by Russian military intelligence to hack into a company that supports voting systems in various states. “The report indicates that Russian hacking may have penetrated further into U.S. voting systems than was previously understood,” write Matthew Cole, Richard Esposito, Sam Biddle and Ryan Grim.

The federal documents in the case provide a window into how that scoop evolved. Winner, according to a search warrant affidavit, was found to have printed the NSA report on May 9, just four days after its publication date. Authorities determined how many workers had printed the report – six, it turned out. A search of her computer, too, turned up email correspondence with the Intercept.

The subject matter in the report, according to the document, is unrelated to Winner’s job duties, for which she maintained a Top Secret clearance.

It’s what happened about two weeks later that places the Intercept’s handling of the case in sharp relief. Here’s part of a paragraph from the document:

“On or about May 24, 2017, a reporter for the News Outlet (the ‘Reporter’) contacted another U.S. Government Agency affiliate with whom he has a prior relationship. This individual works for a contractor for the U.S. Government (the ‘Contractor’). The Reporter contacted the Contractor via text message and asked him to review certain documents. The Reporter told the Contractor that the Reporter had received the documents through the mail, and they were postmarked ‘Augusta. Georgia.’ WINNER resides in Augusta, Georgia. The Reporter believed that the documents were sent to him from someone working at the location where WINNER works. The Reporter took pictures of the documents and sent them to the Contractor. The Reporter asked the Contractor to determine the veracity of the documents. The Contractor informed the Reporter that he thought that the documents were fake. Nonetheless, the Contractor contacted the U.S. Government Agency on or about June 1, 2017, to inform the U.S. Government Agency of his interaction with the Reporter. Also on June 1, 2017, the Reporter texted the Contractor and said that a U.S Government Agency official had verified that the document was real.”

Journalistic tradecraft has a way of appearing ham-fisted, awkward and ill-advised when it surfaces in hacked emails, hot mics and federal court documents. It’s ever so easy to look back at a reporter’s decisions and mock them. With that luxury, we can question the wisdom of telling the contractor about the Augusta postmark, not to mention sending the documents to the contractor. Did the contractor then feel implicated and thus obligated to report this incident?

Perhaps. Consider, however, that these steps were taken toward the goal of authenticating a leaked document. A fine imperative.

It just so happens that in this case, an act of due diligence appears to have turned into a lead for a leak investigation. The Intercept also passed along a copy of the document to the government as part of its reporting process – and that apparently contained some clues as well. “The U.S. Government Agency examined the document shared by the News Outlet and determined the pages of the intelligence reporting appeared to be folded and/or creased, suggesting they had been printed and hand-carried out of a secured space,” says one of the court documents.

Yet the mistakes of the leaker before the Intercept even received the document would likely have sealed her fate, regardless of any clumsiness by the reporter in verifying the scoop. It’s apparent that the document came straight out of the blue, with little or no instructions as to sensitivity and handling. The Intercept’s story itself indicates that the document was supplied “anonymously” to the Intercept. “The Intercept has no knowledge of the identity of the source,” says the website in a statement.

According to reporting that surfaced this year, President Donald Trump at one point encouraged then-FBI Director James B. Comey to jail reporters who published classified information. That’s not the American way. Here, federal law enforcement officials indeed pursue government officials and contractors who mishandle classified information, though news outlets have First Amendment protections for publishing the disclosures. The Obama administration distinguished itself in this department, as it pursued nine leaker-whistleblower cases.

In none of those cases did the Justice Department cross the line into prosecuting journalists, though in one case it came a bit too close, as a document in one case identified Fox News correspondent James Rosen as a “co-conspirator” in a criminal leak.

A widespread crackdown on leakers in the Trump administration could nonetheless have a crippling effect on accountability journalism inside the Beltway. During the heyday of the Obama leak investigations, there was a great deal of chatter that killer sources would clam up. Yet they appear to be thriving based on their work in the opening months of the Trump administration. The Washington Post, The New York Times and CNN – to name just a few – have used well-placed anonymous sources to substantiate unflattering stories about Trump and his aides, even as the White House professes hostility toward leakers.

Is the Winner prosecution the opening salvo in a Trump administration criminal justice war against leakers? We won’t know for a year or two. Let’s just say that the pursuit of this brazen and bush-league leak of a highly sensitive NSA document – which reveals no U.S. government wrongdoing and whose revelations are newsworthy though not earth-shaking – feels more like the routine work of the national-security bureaucracy, rather than the beginning of a petty crusade of Trump. Though in these times, of course, anything is possible.