As FBI Whistleblower Terry Albury Faces Sentencing, His Lawyers Say He Was Motivated by Racism and Abuses at the Bureau

Update: October 18, 2018, 2:25 p.m. EDT:
On Thursday, Judge Wilhelmina Wright sentenced Terry Albury to 48 months in prison, telling him that his disclosure “put our country at risk.”

Burhan Mohumed was home alone one afternoon in July 2016, when two FBI agents knocked on his apartment door in the West Bank neighborhood of Minneapolis and asked to be let in. They wanted to talk to him, they said through the door, about “radicalism in the community.” In three days, Mohumed was set to co-host a community event about the government’s controversial Countering Violent Extremism program, which many in Minneapolis’s large Somali-American community saw as surveillance and harassment of Muslims under the guise of outreach. Some of Mohumed’s friends had already received visits from the FBI, and he knew they were on a quest to recruit informants. Without opening the door, he took his phone and started recording.

“You got a warrant?” he asked. “We don’t need a warrant,” one of the agents replied. “You could just make this easier or make this hard.”

“I was really nervous,” Mohumed told The Intercept during a recent interview. “I’m thinking, they could knock the door down, they can plant something, I could be set up. … The power they held over the situation is what scared me. They could literally do anything to me.”

Mohumed, invoking his constitutional rights, refused to let the agents in. “It’s kind of scary to have two white guys coming into the neighborhood looking for people,” he told them.

“I’m not white, brother,” one of the agents replied.

That agent — who only told Mohumed his name was “Terry” — was Terry Albury, a 17-year veteran of the FBI and the only black agent in the Minneapolis field office. Last April, Albury pleaded guilty to two federal charges of violating the Espionage Act after he was accused of taking dozens of FBI documents, including several that were classified, and leaking some to the press. Court documents filed against Albury did not identify the news outlet he was accused of leaking to, but reports linked the charges to a series of stories published by The Intercept regarding secret guidelines for the FBI’s use of informants, surveillance of journalists, and other topics.

Albury’s sentencing is scheduled for Thursday. The government wants him imprisoned for 52 months; Albury’s attorneys say that his was an “act of conscience” and have asked the judge for no time.

Albury, his attorneys say, was driven to his actions by the racism he witnessed throughout his career at the FBI, both within the agency and in the ways in which the bureau interacted with the communities it policed — particularly the Somali-American community Albury was tasked with surveilling in Minneapolis.

That day in 2016, Albury and his colleague left Mohumed’s home without entering or giving him their full names or business cards. They later showed up at his workplace, and Mohumed ultimately turned to Minnesota’s chapter of the Council on American-Islamic Relations for legal representation. According to a sentencing memo filed by Albury’s attorneys, “This was an every-day encounter for Mr. Albury. He comported himself in this setting as a model FBI agent. But the conflict and depression generated by these routine but soul-destroying events took its toll.”

Council on American-Islamic Relations-Minnesota Executive Director Jaylani Hussein, center with microphone, speaks to growing Somali community concerns about the proposed government-initiated Countering Violent Extremism program during a news conference on Aug. 6, 2015, in Minneapolis.

Last April, at the time of Albury’s plea, I reached out to members of Minneapolis’s Somali-American community — including Mohumed, who had by then changed his name to Burhan Israfael Isaaq. At the time, neither he nor I knew that Albury was one of the agents who had paid him an unannounced visit two years earlier. “I think he did a great service to the citizens of this country and especially to the people who are vulnerable to harassment from the FBI,” Mohumed told me then. “More power to him. People are definitely grateful.”

Today, Mohumed is less forgiving, and says he’s “adopted a more radical understanding.”

“I do think what he did as a matter of public record is great, I think it really shed light for people,” he said. “But the FBI in and of itself is too problematic. Anyone who involves themselves with it and who naively thinks that they can do good work for them, do community work, is misled and misguided.”

In court filings, his lawyers described Albury as “a consummate professional,” a devoted husband and father of two small children with an impeccable record and little time left to a comfortable retirement. “Why would someone with such a stellar career, a history of probity, young children, and just three years from a pension, jeopardize all he had?” they wrote in a sentencing memo. “The answer lies in the FBI’s own checkered history with race.”

“His objective in disclosure was to alert the U.S. public to practices and procedures that he believed represented both a systemic departure from the FBI’s proper mission in counterterrorism, and abuses of the enormous investigative authority the FBI has been granted since 9/11,” the lawyers argued.

In an online fundraiser set up to help cover his legal fees, friends of Albury wrote that, at the FBI, “he soon found himself immersed in an institutional culture that, in his view, demeaned, demonized, harassed, and intimidated the very people he was sworn to protect and serve.”

“Worse yet,” they added, “Terry was required to implement FBI investigative directives that sanctioned the use of race and religion as basis for targeting wide swaths of communities throughout Minnesota, and other locations in which he served.”

The government, for its part, has argued that Albury was a criminal, who, over an 18-month period, stole information from more than 70 documents, including about 50 classified ones, taking photographs and copying and pasting them in order to avoid detection. The FBI claims, offering no specifics, that his actions could harm national security.

“This case is not about race. Nor is it about blowing any whistles,” prosecutors wrote in a sentencing memo. “What it is about is the unlawful transmission and retention of classified national defense information by someone who fully understood how wrong his conduct was.”

Albury’s attorneys declined to make him available for an interview.

“A Passion for Justice”

Albury was born in Santa Rosa, California, the son of an Ethiopian political refugee. His maternal grandfather, a general in Haile Selassie’s army, was executed in an infamous 1974 massacre, and other relatives were imprisoned — an experience that Albury’s attorneys say was reflected in the democratic values and sense of justice that were instilled in him since childhood, as well as in his mother’s devotion to the United States, the country that had welcomed her as a refugee.

According to court documents, Albury and his two siblings were raised in the Bay Area, but his mother struggled to make ends meet and wanted to get the children away from their neighborhood’s poverty and crime, so when Albury was 13, she sent them to Mountain Mission School in Virginia, a Christian charity boarding school for children in need. In letters of support, friends and teachers remembered Albury as a “quiet and sensitive boy, with considerable empathy for anyone who was hurt or vulnerable.” Albury later studied at Berea College, a tuition-free school in Kentucky, where he volunteered as a Big Brother with children in unstable homes, and where he first showed an interest in law enforcement’s relationship with the community, researching a paper about the local department’s community policing initiative — an approach that years later he would try to apply to his work at the FBI.

In college, Albury grew into what a former professor described as a “young man of great intelligence, with a passion for justice, and possessing exemplary moral judgement.” He interned at the FBI before his senior year and later applied and was accepted to join the bureau after graduation. Working at the FBI, Albury believed, “would allow him to do good and help others,” his attorneys wrote. “The FBI were the ‘good guys’.” In the agency, a professor wrote in a letter of support, “he believed he had found an organization in sympathy with his own high values.”

But the FBI soon proved to operate far below those values.

Albury started training with the bureau in September 2001 — just as the 9/11 attacks rocked the nation and precipitated a global war on terror that manifested, at home, in a law enforcement campaign against Muslims that has yet to subside. Albury had hoped to work in the violent crime and human trafficking units, but was assigned instead to counterterrorism work – mostly the surveillance of Muslims.

He worked for the agency in Northern California, in a jurisdiction widely criticized for its surveillance and profiling of Muslims post 9/11. As the bureau came under constant pressure to bolster the number of its investigations and informants, Albury grew increasingly uncomfortable that the investigations were based on weak evidence — but when he tried to raise his objections, he was repeatedly told that the legitimacy of the cases the bureau was pursuing was “not his concern.” During that time, his attorneys wrote, “he began to feel personally responsible for, and thus deeply conflicted by, his participation in surveillance of civilians that he viewed as unduly invasive and harassing.”

Between 2009 and 2010, Albury worked with the FBI in Iraq, where he witnessed the agency’s anti-Muslim and anti-Iraqi sentiments. Tasked with interrogating Iraqi detainees, Albury became convinced that he had been indirectly complicit in torture on two separate occasions: once when a detainee was brought in, blindfolded, shackled, and visibly in pain, by CIA officers working with Iraqi special forces, and once when he expressed frustration to a military officer about a detainee, and the officer “assured him the prisoner would be more cooperative at the next interrogation.”

Those experiences in Iraq left him “haunted,” his attorneys say.

Albury moved to Minnesota in 2012, where again he was given the job of using community outreach as a front for intelligence-gathering. While in Minneapolis, he grew “deeply conflicted by his involvement in raids and interrogations that he increasingly saw as unjustified and ineffective,” his attorneys wrote. Albury tried to make a case for a different approach to policing — at one point writing a white paper suggesting that the field office adopt a “beat cop” approach to FBI work. “The ultimate goal of this initiative,” he wrote, “is to engender trust, mutual respect, and build sustainable long-term relationships with a cross section of the Minneapolis-St. Paul Islamic community.”

According to his lawyers, Albury considered submitting the proposal to his superiors, but several incidents “convinced him that it would fall on deaf ears and potentially brand him as a traitor,” so he never did. Instead, Albury’s alienation was compounded by the “racial jokes and slurs” he witnessed at the bureau, particularly directed at the Somali community. “Mr. Albury felt increasingly isolated and sickened by the racism he experienced within and without his squad,” his lawyers wrote. “He grew depressed, anxious and lonely.”

Patriot vs. Traitor

Albury pleaded guilty to unlawful transmission and unlawful retention of national defense information, which under the Espionage Act could earn him 10 years in prison each. Albury was specifically charged with leaking two documents to the media — one that highlighted FBI methods for recruiting informants and another that was about threats from an unspecified Middle Eastern country — and retaining another. In a search warrant affidavit released at the time of his plea, the government said that Albury had also accessed other documents published by the news outlet.

In January 2017, Albury was assigned by the FBI to be an airport liaison, working to recruit informants at the border. According to the government sentencing memo, he continued to take FBI documents home from the airport — though he never shared them with anyone. When law enforcement raided his home, in August 2017, they found the documents on a storage device in a shirt pocket in his closet, wrapped in a note with a reporter’s phone number on it.

Prosecutors wrote that Albury acted with “clear disrespect for the law and his profession” and that his actions “put us all at risk.”

While they maintained that “motive is irrelevant to the offenses,” they called into question whether Albury was driven by “social conscience,” and said that he was no whistleblower because, in their view, the matters he exposed don’t constitute abuse. “Were the defendant truly troubled or disturbed or at odds with FBI policies or practices, he could have walked away,” they wrote. “Ultimately, he chose instead to engage in criminal conduct for 18 months rather than engage any process to remedy the ills he perceived against others or felt against himself.”

Albury’s attorneys pushed back, calling Albury’s motivation “patriotic” and noting that “his disclosures have not caused actual harm to the United States.”

“No actual investigation has been put at risk; no undercover agent or source exposed or put in danger; no specific community or diplomatic relationship compromised,” they wrote. “Mr. Albury engaged in whistleblowing activities deliberately and surgically,” they added, arguing that his disclosures to the media were carefully curated. “His goal was to expose abuses and counter-productive strategies in the FBI’s counter-terrorism initiatives … and as a seasoned FBI agent, he knew how to do this without putting individuals in danger or compromising any specific investigation.”

In a memo submitted to the court by prosecutors, E. W. Priestap, an assistant director in the FBI Counterintelligence Division, wrote that disclosures like Albury’s “have the potential to reveal FBI sources and methods” — but, as the defense noted, he failed to provide any examples of whether and how Albury’s disclosures actually did so, and framed all of his claims in the conditional. “By definition, information classified at the SECRET level is information ‘the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security,’” he wrote.

Albury’s attorneys countered that the federal government has a well-documented problem with overclassification — and that just because something is classified does not mean that its content is not in the public interest, or that a disclosure would harm national security.

That argument was supported by an amicus brief filed by 17 First Amendment scholars. The group wrote that between 2 to 3 million U.S. officials have the authority to classify information, and that last year, they made more than 49.5 million classification decisions — a 10 percent increase over 2016. Reviews of classification practices have regularly concluded that the procedure is widely abused, that classifying information is too easy, and that there is no consequence for misclassification. A former director of the Information Security Oversight Office cited in the scholars’ brief reported that information “published in third-grade textbooks” is classified. Further revealing just how arbitrary the process can be, fired FBI Director James Comey’s memos of his meetings with President Donald Trump, which were leaked to the media earlier this year, opened with his assessment of the level of classification they should hold. “I am not sure of the proper classification here so have chosen SECRET,” Comey wrote. “Please let me know of [sic] it should be higher or lower than that.”

“Overclassification is rampant,” the scholars concluded. “A great deal of nonsensitive information is classified simply because disclosure would embarrass powerful officials or expose government misconduct.”

An American flag flies outside the FBI headquarters in Washington, D.C., on Feb. 2, 2018.

“Everything to Do With Politics and Nothing to Do With Justice”

The legal scholars argued that First Amendment protections that shield reporters from prosecution are becoming obsolete, as surveillance technology makes tracking leaks increasingly easy — which in turn makes the prosecution of whistleblowers, rather than that of journalists, the battlefield for First Amendment fights to come.

They also wrote that the use of the Espionage Act to prosecute whistleblowers has dangerous implications for free speech and is a far cry from the act’s original intent, when it was enacted during World War I, to target foreign spies and enemies. The act was not used to prosecute leaks to the media until 50 years later, but those prosecutions skyrocketed under the Obama administration, and then tripled under Trump.

Trump has made no secret of his desire to aggressively pursue who he calls “lowlife leakers” — and prosecutors in Albury’s case wrote that “individuals similarly situated to the defendant need to know that anyone who breaks his or her oath to protect classified information will be punished accordingly.” Reality Winner, a former National Security Agency contractor who pleaded guilty earlier this year to leaking a secret government report on Russian meddling in U.S. elections, received a 63-month sentence — the longest ever imposed in federal court for an unauthorized release of government information to the media. On Wednesday, the Department of Justice filed criminal charges against a Treasury Department official, Natalie Mayflower Sours Edwards, who it accused of leaking confidential “suspicious activity reports” about Trump’s former campaign chair Paul Manafort to a BuzzFeed reporter. Agents said they found messages that Edwards exchanged with a reporter after searching her cellphone, and that they found her in possession of thousands of documents on a thumb drive.

But as The Intercept has reported before, not all accused leakers receive the same treatment, and while leaks, including those of classified documents, are ubiquitous in government, there are enormous imbalances in the ways in which leakers are pursued. Some of those facing the harshest consequences for leaking are, like Albury, lower-level employees and people of color. Government agencies also tend to respond more harshly to whistleblowers whose disclosures embarrass them than to those who put national security at risk.

Perhaps the most famous example of the arbitrary and unequal nature of leak prosecutions is that of former CIA Director David Petraeus, who pleaded guilty to a single misdemeanor — and served no jail time — for sharing his highly classified journals with his biographer and lover, and then lying to the FBI about it.

“All administrations leak profusely from the top, meaning that they leak politically convenient information,” Heidi Kitrosser, a professor at the University of Minnesota Law School and one of the authors of the amicus brief, told The Intercept. “When that is coupled with a historically unparalleled use of the Espionage Act to go after lower-level employees for leaking classified information, it becomes a powerful weapon for the government to pick and choose what they want the people to know.”

“It’s heart-wrenching to see folks like Reality Winner, who was an anonymous contractor, and Terry Albury, who was a decorated FBI agent, punished for acting on their consciences and disclosing information that is not at all clear should have been classified in the first place,” she added. “While we see higher-level leaks that are politically convenient for the administration happening as business as usual.”

Reality Winner walks into the Federal Courthouse in Augusta, Ga., on June 26, 2018.

In their sentencing memos, Albury’s lawyers wrote that the prosecution and punishment of leakers is too arbitrary and unequal for his sentence to serve any real purpose of deterrence. “The punishment imposed in any situation involving unauthorized disclosure is so completely inconsistent, arbitrary, and unpredictable — or if it is predictable, for all the wrong reasons (ie. The power of the person disclosing, the political advantage gained from disclosure, or the political exercise of the pardon authority) — that it is impossible for any particular case to provide the basis for general deterrence.”

The lawyers note that while Albury’s prosecution was underway, the DOJ’s Inspector General issued a report about the unauthorized disclosures, and later lying under oath, by FBI Deputy Director Andrew McCabe, who revealed details of an FBI probe of Hillary Clinton to a reporter.

More recently, Sen. Cory Booker, D-N.J., made a stunt of his decision to violate Senate rules when he disclosed confidential emails during Brett Kavanaugh’s confirmation hearing. “The emails being withheld from the public have nothing to do with national security,” Booker said, when reminded that disclosing the emails would be equivalent to disclosing classified information. “I come from a long line, as all of us do as Americans, of understanding what that kind of civil disobedience is, and I understand the consequences.”

Of course, it was highly unlikely that Booker would face any consequences, and while McCabe was dismissed from the FBI, he was never charged.

The lawyers also quoted Jesselyn Radack, a former DOJ lawyer and whistleblower, saying that “higher-level officials routinely leak sensitive — sometimes even classified — information to advance their own personal interests and rarely face serious consequences. But if a whistleblower leaks sensitive information of public interest, the hammer comes down.”

Prosecution, Radack added, has “everything to do with politics and nothing to do with justice.”

“The Right Thing to Do”

In their amicus brief, the group of legal scholars recalled a 2011 exchange between an intelligence official and the then-executive director of the Reporters Committee for Freedom of the Press, about the subpoena of New York Times reporter James Risen, who is now at The Intercept.

That subpoena to force a reporter to disclose his source — which Risen refused to do — would be “one of the last you’ll see,” the official said at the time. “We don’t need to ask who you’re talking to. We know.”

In fact, the scholars argue, First Amendment protections extended to reporters have become all but useless now that officials can easily track their sources without them. “Given technological advances, the administration simply no longer needs to rely on subpoenaing reporters the way they used to,” Kitrosser told The Intercept. “They have surveillance cameras, call logs, third-party subpoenas, and many other means less available to them in the past to track down sources without having to go to the reporter. This poses a new and very scary threat to the ability of the press to cover information of great public importance.”

The prosecution of leakers has already significantly chilled sources’ willingness to risk their jobs and freedom, several reporters have said, with devastating impact on public discourse. In punishing Albury, the legal scholars pleaded, the court should consider “the benefits to the public and to democratic deliberation” that resulted from his disclosure, “as well as the damage that a severe sentence would inflict on the constitutionally-protected interest in the flow of information to the citizenry on matters of public importance.”

In their letters to the judge, Albury’s friends made that point more simply — describing him as both a man with “an unparalleled sense of honor and duty” and one whose “integrity” was perhaps greater than the law.

A family friend wrote that once, when Albury’s wife’s car broke down, he went over to help her but didn’t give her a ride to work because he was driving his work car, “and it was against the policy to let his wife ride in his vehicle, even for a few minutes,” the friend wrote. “He is a person of integrity who follows the rules.”

“Whatever he did it was because of his passion and strong belief for a better future,” another friend wrote. “People like Terry make our society better,” said another. And a former teacher, speaking of Albury’s younger days but seemingly sending a message about his more recent actions, wrote to the judge: “He did the right thing because it was the right thing to do.”