Does America Need to Build New Misprison Prisons?

Monday, Jul 22, 2013

You may have heard about the BHO administration regime's expanded “Insider Threat Program," which amplifies Executive Order 13587, published back in 2011. After a brief flurry of media attention earlier this month, this has been thoroughly soft-pedaled. ("Nothing to see here, move along.") But these new policies have been laid down and the penalties for noncompliance have been established. Without an act of Congress, these policies are now effective. Rather than re-hash the details, I will quote the first part of a well-written McClatchy News Service article:

"In an initiative aimed at rooting out future leakers and other security violators, President Barack Obama has ordered federal employees to report suspicious actions of their colleagues based on behavioral profiling techniques that are not scientifically proven to work, according to experts and government documents.

The techniques are a key pillar of the Insider Threat Program, an unprecedented government-wide crackdown under which millions of federal bureaucrats and contractors must watch out for “high-risk persons or behaviors” among co-workers. Those who fail to report them could face penalties, including criminal charges.

Obama mandated the program in an October 2011 executive order after Army Pfc. Bradley Manning downloaded hundreds of thousands of documents from a classified computer network and gave them to WikiLeaks, the anti-government secrecy group. The order covers virtually every federal department and agency, including the Peace Corps, the Department of Education and others not directly involved in national security.

Under the program, which is being implemented with little public attention, security investigations can be launched when government employees showing “indicators of insider threat behavior” are reported by co-workers, according to previously undisclosed administration documents obtained by McClatchy. Investigations also can be triggered when “suspicious user behavior” is detected by computer network monitoring and reported to “insider threat personnel.”

Federal employees and contractors are asked to pay particular attention to the lifestyles, attitudes and behaviors – like financial troubles, odd working hours or unexplained travel – of co-workers as a way to predict whether they might do “harm to the United States.” Managers of special insider threat offices will have “regular, timely, and, if possible, electronic, access” to employees’ personnel, payroll, disciplinary and “personal contact” files, as well as records of their use of classified and unclassified computer networks, polygraph results, travel reports and financial disclosure forms.

Over the years, numerous studies of public and private workers who’ve been caught spying, leaking classified information, stealing corporate secrets or engaging in sabotage have identified psychological profiles that could offer clues to possible threats. Administration officials want government workers trained to look for such indicators and report them so the next violation can be stopped before it happens.

“In past espionage cases, we find people saw things that may have helped identify a spy, but never reported it,” said Gene Barlow, a spokesman for the Office of the National Counterintelligence Executive, which oversees government efforts to detect threats like spies and computer hackers and is helping implement the Insider Threat Program. “That is why the awareness effort of the program is to teach people not only what types of activity to report, but how to report it and why it is so important to report it.”

But even the government’s top scientific advisers have questioned these techniques. Those experts say that trying to predict future acts through behavioral monitoring is unproven and could result in illegal ethnic and racial profiling and privacy violations.

“There is no consensus in the relevant scientific community nor on the committee regarding whether any behavioral surveillance or physiological monitoring techniques are ready for use at all,” concluded a 2008 National Research Council report on detecting terrorists.

“Doing something similar about predicting future leakers seems even more speculative,” Stephen Fienberg, a professor of statistics and social science at Carnegie Mellon University in Pittsburgh and a member of the committee that wrote the report, told McClatchy.

The emphasis on individual lifestyles, attitudes and behaviors comes at a time when growing numbers of Americans must submit to extensive background checks, polygraph tests and security investigations to be hired or to keep government or federal contracting jobs. The U.S. government is one of the world’s largest employers, overseeing an ever-expanding ocean of information.

While the Insider Threat Program mandates that the nearly 5 million federal workers and contractors with clearances undergo training in recognizing suspicious behavior indicators, it allows individual departments and agencies to extend the requirement to their entire workforces, something the Army already has done.

Training should address “current and potential threats in the work and personal environment” and focus on “the importance of detecting potential insider threats by cleared employees and reporting suspected activity to insider threat personnel and other designated officials,” says one of the documents obtained by McClatchy..."

This employee snitch policy for the Federal government is intent on making all government employees spy upon one another, like loyal communist East Germans before 1989. Das ist die neu Stasi. Failure to report someone suspicious is now grounds for termination or for release from a contract. And we aren't just talking about people who are read-on for SCI here. We are talking about all Federal employees.

With this new policy, the byword appears to have been changed to: "If you see something, say something, or else!"

It is important to note that "Misprison of a Serious Offense" has been included in the Uniform Code of Military Justice (UCMJ) for many years. Article 134 (the "catch all" general article, that comes right after "conduct unbecoming an officer") says in part that if a sworn member of the U.S. armed forces knows of the commission of a serious crime and fails to report it, then they themselves may be held criminally liable. But it is grossly over-reaching to institute a similar policy without consent of congress, upon GS-series employees and outside contractors who are not sworn defenders of the nation, and who did not consent to this level of intrusiveness as a precondition of their employment. I predict that this policy will not survive judicial scrutiny.

Now all of this is not to say that someone in a position of "special trust and confidence" shouldn't beware of suspicious contacts by foreigners. (And FWIW, I had my own brush with this, when I was read on for SCI, and I reported it, just as I had been instructed.) But this new policy is downright paranoid, and is more about CYA for Team Obama than it is about protecting classified information from genuine hostile intelligence threats. I should also mention that I believe that Edward Snowden's initial revelations about PRISM and Upstream was justified for the public interest, although he should have refrained from releasing SCI codeword acronyms, in the process. (The code words themselves are classified. Publishing them was not necessary, since they could have easily been redacted.)

By setting this standard, President Bolt Hold Open is now effectively militarizing the entire Federal Government, by absurdly setting the bar at the Article 134 level for every employee. Think about it. This means: Every IRS paper pusher. Every USDA soil tester. Every Corps of Engineers bulldozer driver. Every Peace Corps volunteer. Every Forest Service contract tree planter. Every janitor in a Federal building. This all fits with BHO's unremitting push toward statism--toward the goal of placing the national government in the rightful sphere recognized as belonging to God: omniscient, omnipresent, and omnipotent. George Orwell only had a glimpse of what was to come.

The mere knowledge of the commission of a crime cannot be considered a crime in and of itself. (The rarely used Federal statute on Misprision of a Felony, codified in 1910, only includes actively concealing a felony, not just mere knowledge.) But BHO & Company has effectively expanded the Article 134 level of scrutiny from sworn members of the armed forces to now include all Federal employees and contractors. The news stories make reference to "criminal charges" for Federal employees who fail to report suspicious behavior. But since the Executive branch cannot write laws--only enforce them--how could they create a new category of law that has criminal penalties? The short answer is: They can't. But by cleverly mixing fact and hyperbole in their public statements, they are apparently hoping to buffalo their employees into becoming informants. But the fact is, unless the law changes--and only Congress can do that--then the only Federal employees who can be charged with misprision for anything other than actively concealing a felony are those who are under the jurisdiction of the UCMJ. (Parenthetically, in 2007 civilian contractors who work in combat zones were quietly added to UCMJ jurisdiction, by an act of Congress.)

How long will it be until they try to force this on the entire citizenry? Or are they just hoping to entice us into informing on our neighbors, making us all supergrassers? Since they are all already encouraging the citizenry with the glib: "If you see something, say something" line, then I suspect that it probably won't be very long. And if they make not snitching a crime for everyone, then they'll have to build a lot of new prisons. (They could be called misprison prisons.) And they'll need huge warehouses with miles of file folder shelves and huge server farms for all of the reports from their informants and digital recordings of conversations.

We are living in perilous times. BHO and Eric Holder would probably love to see our society go Full Stasi. Don't let them succeed.

As I've summarized before: We are living in the age of deception and betrayal. Beware. Be politically active. Let your congresscritters feel the heat, so that they will see the light. Be vocal, but do so about the right things. Pray for the wisdom and discernment to know when to remain silent. Don't become a tool of the statists. - J.W.R.


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