A veteran FBI agent's rules for how to get a juicy leak in the Obama era -- and not get caught.
The Department of Justice case against Fox News journalist James Rosen took an ugly turn last week when it was revealed that three years ago, in an application for a search warrant targeting his Gmail account, an FBI affiant alleged that Rosen was a "co-conspirator and/or aider and abettor" in the crime of espionage. Having read the affidavit, I personally think that the allegation and the evidence presented as probable cause is a bit of a stretch. And taken on top of the revelation that the same DOJ attorneys subpoenaed the telephone records of the Associated Press, along with those of White House and National Security Council staff, the paranoia and outrage being expressed by the Washington press and across the nation is palpable, to say the least.
Rosen has been described in the media as an expert on Watergate and an aficionado of Bob Woodward's tradecraft in meeting with "Deep Throat," revealed by Vanity Fair in 2005 to have been FBI Associate Director Mark Felt. In arranging their meetings, Woodward would signal Felt that he wanted to meet by placing a flowerpot on his balcony, which could be seen by Felt as he walked by. Conversely, Felt would signal Woodward by making a note on page 20 of the copy of The New York Times delivered to Woodward's door in the morning. They would then meet in an underground garage, often at 2 a.m. Not bad tradecraft for its time.
Things, however, have changed. National security reporting in Washington is a cat-and-mouse game. Reporters try to develop sources to provide information about controversial government programs so that they can write about them. Classified information is, of course, the sexiest and most valued of all national security information. When stories containing classified information are published, however, a massive counterintelligence enterprise is sometimes set into play by the government's house cat to catch the mouse and determine if the information was leaked at the behest of a hostile foreign intelligence service. Reporters are often caught in the middle, targeted by the FBI because they are easier to catch than the leakers and the foreign spies. In the past, the point of catching the reporters was to prosecute the leakers, not the reporters, and embarrass the papers into future voluntary compliance with the law. It appears the present administration has changed the rules of the game.
As a public service to enterprising journalists, below are my top ten tradecraft lessons for those interested in protecting contact with their sources. They are based on my 28 years in the FBI as a counterterrorism/counterintelligence agent and are not meant as a primer for aspiring spies, because spying is illegal and all of the techniques described can be overcome though perseverance and enterprise by the FBI. But if you want to make the FBI earn its pay as it tries to determine where you got your information, here are some words to live by:
1. Take a lesson from the Mafia and never use phones for anything other than the most innocuous conversations -- i.e., "Meet me at our usual spot" or "We need to talk." Better yet, "I'm going out for pizza, so I won't be around to meet you today " -- the last part being previously arranged code for "Meet me at our usual spot."
Members of La Cosa Nostra are notorious for suspecting that the FBI has everything around them bugged, and modern-day gangsters typically go for public walks to discuss mafia business. John Gotti was famous for his walks with his consigliore Salvatore "Sammy the Bull" Gravano. Others, like Bill Bonanno, would only call from public phones to other pre-designated banks of public phones so that law enforcement would never know which phone was going to be used.
Some, like Paul "Big Paul" Castellano, head of the Gambino family, would only conduct business at the kitchen table of his well-guarded Long Island mansion. All of these techniques can be defeated, of course, but it takes a much higher level of investigative activity on the part of the FBI. Houses, cars, kitchens, restaurant tables, and individuals can all be bugged. Castellano's Rottweilers succumbed to a daily bribe of cheeseburgers offered by an enterprising agent, proving that even highly trained guard dogs cannot resist a dose of grease.
2. Like the phone, the Internet is a sieve, and a goldmine for lawful and unlawful penetration through technical means by law enforcement. Never use the Internet or email for any kind of contact with a source if your beat is national security because it creates too many electronic trails, all of which are traceable and usually recoverable by even the newest rookie FBI cyber-agent. Social media outlets like Twitter and Facebook are the worst because they are public, and even though you may direct message your source or delete a contact tweet, it can be recorded by any number of interested followers, including the FBI, and preserved for all time on Google.
3. Take a tip from the Mossad and never meet or recruit a source in a public place where you can be observed by law enforcement, fellow journalists, or jealous spouses. The only exception to this rule would be large-scale public events where meeting a source could be described as a random chance encounter, like at a sporting event.
Hotels are only marginally better, particularly if you use the same hotel or pre-book a room. If the FBI knows the hotels you like to use, there are ways to ensure that you get the room that the bureau wants you to get -- i.e., the pre-wired room.
That goes for bars and taverns as well. Some of my best sources while in the FBI were bartenders, but then I was of a different generation. Today's FBI agents tend to develop sources at gyms, not bars. So perhaps random bars wouldn't be so bad after all. Just watch for the lone 28-year-old in a cheap suit drinking soda water all alone.
4. Use the U.S. mail. Many journalists are unaware of the existence of mail covers, which are formal requests to the Postmaster that allow the postal service to record certain information -- but only that information on the outside of the envelope. To get at its contents requires probable cause that evidence of a crime is contained within the envelope and a search warrant. Of course, "accidental" openings can and do occur. So be careful what you say in your letter. See rule #1.
5. Variety is the spice of life. If nothing else, vary your routine. Every day. All day long. The technical term for directed or dedicated random activity designed to spot surveillance is a surveillance detection route, or SDR.
6. Look over your shoulder occasionally. Surveillance comes in a variety of levels of sophistication and expertise. Routine criminal surveillance might be conducted by detectives in their G-rides, or even uniformed police officers in a marked patrol car. The highest level of national security surveillance is conducted by teams of agents and specialists who do surveillance for a living and will generally not be detected, except possibly by trained foreign intelligence officers. Criminals are notorious for acting "hinky" when engaged in illegal activity, so try not to look obvious or uncomfortable. You should assume you are being photographed, so dress well.
7. If your source is engaged in illegal activity, such as the dissemination of classified defense information, STOP AND THINK. There are a lot of reasons why leakers leak classified information to the press. Be careful that you don't get caught up in someone else's criminal fantasy of getting back at the government through you, all for the sake of a story. Even if you believe that the documents deserve to be published, I would caution you to think long and hard, in consultation with corporate counsel, before you do so. You could wind up in jail. Even if you are ultimately vindicated and hailed as a hero for your actions, you may first have to go through many years of (expensive) litigation.
Anger at the government, disagreement with foreign policy, revenge, and ideology are all possible motives for providing classified information. While the lure of a story may overwhelm common sense, take a moment to evaluate the source's true motivation, and if you and your editor/publisher think you can "fade the heat," then go ahead and publish. But don't express moral outrage when you are accused of a crime and threatened with prosecution. It is part of the dangerous game you are playing. After all, unauthorized possession of classified information, even without publication, is still a crime.
8. Don't wear wigs or disguises, carry recruitment letters offering money in exchange for information, or use electronic surveillance detection equipment. These things don't work and will just subject you to ridicule from the FBI, your colleagues, and many others if you are caught. (My apologies to my friends in other government agencies who use and believe in these techniques. We still make fun of you.)
9. If you don't want to be charged with conspiracy, then don't conspire with your source. Legal opinions differ on what constitutes criminal conspiracy, but the threshold is much lower than actual commission of the crime being planned -- in fact, the overt crime need never be committed at all. (Think bank robbery. If you and a source talk about robbing a bank, and then the source actually robs a bank and says you talked him into it, you can be charged with conspiracy to rob a bank.) And, once you become a criminal target, the rules for the DOJ and FBI change, and they can utilize the full force of the U.S. government to investigate the leak. Make sure you know the law and what you are willing to risk before you publish.
10. Finally, remember that publishing articles on national security can often have unintended consequences. The danger of revealing a sensitive source or method is very real and can have deadly consequences for the human source at the other end. It is my personal opinion that there is a classified backstory that remains untold in both the Rosen and the AP cases that would explain the aggressive pursuit of the leaks. I don't know what it is, but I look forward to the day when I can hear the story reported by James Rosen, Matt Apuzzo, Adam Goldman, and others at Fox, the AP, and the New York Times. Go get ‘em, fellas.
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