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Intelligence Official Cited for “Unauthorized Disclosure” to Congress: Oversight on the Rocks

Just over a year ago, an official at the Defense Department gave congressional oversight committees a document that had the potential to embarrass the Secretary of Defense and the Pentagon’s Office of Inspector General. The document, a report the IG’s office had drafted but not released, reflected negatively on then-Secretary of Defense Leon Panetta because it said that, when he was director of the CIA, he mishandled highly classified information about the raid that killed Osama Bin Laden. And it spelled trouble for the IG, a Pentagon watchdog, because it showed that the IG had been sitting on politically sensitive information.

Now, the IG, an authority whose responsibilities include investigating executive branch misconduct and protecting the rights of whistleblowers, maintains that sharing that document with Congress was prohibited.

The IG’s office has asserted that, in giving the unclassified report to Congress, Dan Meyer, who now holds a sensitive post in the intelligence community, made an “unauthorized disclosure,” according to a document obtained by the Project On Government Oversight and to people familiar with the matter.

At a time when major national security controversies are testing the Constitutional system of checks and balances and the ability of whistleblowers to expose problems, a memorandum from the IG’s office concerning Meyer’s disclosure to Congress lays out principles that constrain Defense employees from giving Congress information it needs to perform its oversight role.

The Project On Government Oversight reported in June 2013 that the IG’s office had been on the verge of releasing the report discussing Panetta in late 2012 but instead was sitting on it. POGO also posted a version of the unpublished report on the Web.

The IG then conducted a probe to determine which of its employees, if any, had given the report to POGO. Sources said the IG was unable to determine that any of its employees did so.

In the course of the probe, Meyer acknowledged giving a draft to a Senate Intelligence Committee staffer and to the chief of staff of the Senate Armed Services Committee, according to the IG memorandum and people familiar with the matter.

The memorandum from Brett A. Mansfield, Deputy Chief of Staff at the IG’s office, refers to “the unauthorized disclosure of an OIG draft report” without identifying the report; people familiar with the matter said that was a reference to the investigation involving Panetta. The memorandum also spelled out strictures against sharing unpublished IG reports with Congress.

For example, it says, “In general the OIG does not provide draft reports to outside stakeholders to include members of Congress and their staff.” It adds that Meyer was “reminded of his responsibility to ensure the protection of sensitive information to include information marked For Official Use Only (FOUO),” a designation commonly employed to keep various kinds of unclassified material from public release. It says that “the lack of FOUO markings does not make information automatically releasable”—implying that releasing information to Congress is not an official use. It discusses restrictions on “draft and pre-decisional information.” And it says that the only people who had the authority to approve Meyer’s disclosure to Congress were the Inspector General or a particular subordinate.

The memo seems to convey that sharing information with Congress is subject to some of the same restrictions as releasing information to the public.

The restrictions laid out in the memo have parallels in an ongoing dispute between the Senate Intelligence Committee and the CIA. The committee is locked in a battle with the CIA over access to information about highly controversial CIA activities—the detention of prisoners in secret overseas jails and the use of interrogation techniques widely regarded as torture. Committee Chairman Diane Feinstein (D-CA) recently described the conflict as a “defining moment” for congressional oversight.

Feinstein said that the CIA had tried to assert that some of the CIA documents her committee was reviewing had been labeled “deliberative” and “privileged,” a designation she rejected.

“We have discussed this with the Senate Legal Counsel who has confirmed that Congress does not recognize these claims of privilege when it comes to documents provided to Congress for our oversight duties,” Feinstein declared on the Senate floor.

For people with information about government misconduct, Dan Meyer’s disclosure to Congress shows pitfalls of working within the system.

President Obama and senior intelligence officials have said former National Security Agency contractor Edward Snowden should have aired his concerns about intelligence-gathering within governmental channels instead of divulging information to the media. Unlike Snowden—or Panetta—Meyer is not accused of spilling Top Secret information. Meyer has been faulted for releasing a politically sensitive but unclassified document to congressional offices statutorily required to conduct oversight of intelligence and defense activities. The document addressed the alleged mishandling of classified information by the head of his department, the secretary of Defense.

Ironically, Meyer’s current job in the office of the Director of National Intelligence involves helping to create safe channels for whistleblowers as envisioned in a directive by President Obama.

Meyer is a former Navy officer who became a whistleblower decades ago, when he informed the Senate Armed Services committee of misconduct by investigators looking into an explosion on the battleship Iowa. Since then, his career has involved protecting whistleblowers and helping the government field information from them. When he gave the report involving Panetta to Congress, he was working in the Defense Department IG’s office in a job requiring him to advocate on behalf of employees who believed they had uncovered wrongdoing or had been retaliated against for reporting it. Currently, he is detailed to a similar post as Executive Director for Intelligence Community Whistleblowing and Source Protection at the Intelligence Community Inspector General (ICIG), a watchdog for the Director of National Intelligence.

Contacted by POGO, Meyer referred questions to the ICIG, which offered no comment. The Defense IG also declined to comment.

The report Meyer shared with Congress said that, as CIA director, Panetta exposed highly classified information related to the raid that killed Bin Laden to a producer of the movie Zero Dark Thirty at a June 2011 CIA event honoring participants in the raid and others who contributed to the hunt. The report also accused Deputy Secretary of Defense for Intelligence Michael Vickers of giving filmmakers the protected name of a special operations planner involved in the mission.

At a time when the government has been cracking down on whistleblowers and national security leaks, the Zero Dark Thirty case showed a security lapse at the highest levels of the CIA. It showed members of the Obama Administration going to substantial lengths to help the makers of a Hollywood movie about a national security success. And it showed the Pentagon’s Inspector General, an internal watchdog, sparing leaders at the Pentagon from the public accountability that could result from a potentially damaging report.

The Defense IG inquiry into Zero Dark Thirty was prompted by an August 2011 request from Representative Peter King (R-NY), then chairman of the House Committee on Homeland Security, who said he was concerned that Hollywood filmmakers had reportedly received “top level access to the most classified mission in history.”

More than a year later, by which time a presidential campaign had run its course, the Defense IG had yet to release the results of its probe.

Meyer received a copy of the unpublished Zero Dark Thirty report in December 2012 and soon after gave it to congressional oversight committees, sources said.

In June 2013, days after POGO published a copy, the Defense IG released a final version of the report that included no mention of Panetta’s disclosure of classified information or of Vickers’ disclosure.

Though the final version made no mention of the Panetta findings, CIA documents released under the Freedom of Information Act to Judicial Watch show that the Defense IG believed them strongly enough to refer them to the CIA.

“We are referring to you for appropriate action the unauthorized disclosures of DoD information by the former Director of Central Intelligence Agency (CIA) to a movie producer not authorized to receive the information,” James R. Ives, the Defense Department’s acting deputy inspector general for Intelligence and Special Program Assessments, said in an undated memo to the CIA’s deputy inspector general.

While it is unclear when the Ives memo was sent to the CIA, it is clear from the contents of the memo that the Defense Inspector General’s office had established by September 2012 that Panetta’s remarks at the event attended by the filmmaker contained Top Secret information. That means the Defense IG had confirmed the finding before the November 2012 presidential election and months before the OIG released its official, Panetta-free report in June 2013.

In a statement quoted by the Associated Press, Panetta has said he did not know the filmmaker was present when he made his remarks.

When Meyer conveyed the unpublished report to Congress, the Defense Inspector General’s office was headed by an acting IG, Lynne M. Halbrooks, who lobbied to be appointed to the job on a permanent basis. Customarily, before the president formally presents a nominee for Senate confirmation, the White House asks Department senior management to sign off on the nominee.

(President Obama later selected someone else, Jon T. Rymer; Halbrooks currently serves as his deputy.)

By the time the report came to light, Panetta had left the government.

In a statement on the matter last year, Halbrooks described the version of the Zero Dark Thirty report that POGO obtained as a “pre-decisional working-draft … [that] was not authorized to be released.” Halbrooks disputed POGO’s account, saying, “I strongly disagree with any assertion that DoD IG has been ‘sitting on the report.’”

But another document obtained by POGO shows just how close the agency came to making its original, uncensored Zero Dark Thirty report public more than half a year before POGO revealed it. An internal email from November 2012 shows the Defense IG’s spokesperson outlining detailed plans to publicize the report almost immediately.

“Just want to have it publicly released on a day when it will actually get some media attention—for instance, not the Friday after Thanksgiving,” the spokesperson said.

The Defense IG’s handling of the Zero Dark Thirty report has been seized upon by a variety of critics. Two weeks ago, it was the turn of John Kiriakou, a former CIA agent who pleaded guilty last year to a felony for disclosing the name of a covert operative to a journalist. The headline of his Los Angeles Times op-ed written from a federal prison in Pennsylvania: “I got 30 months in prison. Why does Leon Panetta get a pass?”