For U.S. Inquiries on Leaks, a Difficult Road to Prosecution (NY) TIMES) By CHARLIE SAVAGE WASHINGTON 06/10/12)
NEW YORK TIMES
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WASHINGTON — Anger over leaks of government secrets and calls for
prosecution have once again engulfed the nation’s capital. Under
bipartisan pressure for a crackdown, Attorney General Eric H. Holder
Jr. on Friday announced the appointment of two top prosecutors to
lead investigations into recent disclosures.
But the prospects for those efforts are murky. Historically, the vast
majority of leak-related investigations have turned up nothing
conclusive, and several of the nine that have been prosecuted — six
already under the Obama administration, and just three more under all
previous presidents — collapsed.
“These cases are very difficult to pursue,” said Kenneth L.
Wainstein, a former assistant attorney general for national security
under President George W. Bush.
Still, the Obama administration is facing intense pressure to
identify and make examples of any officials who helped bring to light
a series of recent disclosures — including new information about the
Obama administration’s drone strikes, a joint effort by the United
States and Israel to damage Iranian nuclear equipment with a computer
virus, and the foiling of a terrorist plot with help from a double
agent. (The reports appeared in several recent books and articles,
including some by The New York Times.)
Many people are surprised to learn that there is no law against
disclosing classified information, in and of itself. The
classification system was established for the executive branch by
presidential order, not by statute, to control access to information
and how it must be handled. While officials who break those rules may
be admonished or fired, the system covers far more information than
it is a crime to leak.
Instead, leak prosecutions rely on a 1917 espionage statute whose
principal provision makes it a crime to disclose, to persons not
authorized to receive it, national defense information with knowledge
that its dissemination could harm the United States or help a foreign
To win such a case at trial, prosecutors have to prove to a jury that
the leaked information met that standard, including showing why its
disclosure was harmful. To date, there has been only one successful
trial of an accused leaker — an intelligence analyst who gave
satellite pictures of a Soviet shipbuilding facility to Jane’s
Defense Weekly in 1984.
Several defendants in other leak cases pleaded guilty, avoiding a
fight over whether the information they had passed on qualified.
Other cases were dismissed.
Several lawmakers last week proposed updating and strengthening
secrecy laws, reviving proposals that have periodically been made
after other disclosures. Most of those episodes faded away without
action, but in 2000 Congress passed a bill that would have made the
disclosure of any classified information a felony. President Bill
Clinton vetoed it.
In 2002, President George W. Bush’s attorney general, John Ashcroft,
told Congress that no new laws were necessary.
Identifying a leaker is also rarely easy, since there are often
dozens or hundreds of officials who had access to the information.
But it is easier today than in earlier eras to build a circumstantial
case that a particular official talked to a reporter because modern
communications technology — like e-mail — leaves trails.
Several of the recent disclosures, however, resulted from deeply
reported projects. Such articles tend to have diffuse sourcing,
making it hard to isolate who first disclosed the essence of what
later becomes an article.
On those rare occasions when there is an identifiable leaker, the
government must still decide whether prosecuting would mean divulging
too many secrets to be worth it — starting, usually, with having to
confirm in public that a particular leak was accurate. Defendants who
choose to fight often rely on a so-called graymail defense. This
involves making the disclosure of further classified information a
centerpiece of their right to a fair trial by pushing for even more
revelations, such as identifying other people at the agency who had
access to the same knowledge.
While a federal law, the Classified Information Protection Act, is
intended to allow such trials to go forward without revealing
secrets, in practice judges have not always agreed with the
government that certain information can be withheld from a public
trial. If it turns out that prosecutors miscalculated in predicting
how a judge would rule on such evidentiary issues, the agency that
had urged the Justice Department to bring the case might balk at
letting it continue.
That said, there are possible situations in which it may be easier
for prosecutors in the current cases to succeed — in particular, if
they can locate e-mails in which a particular official disclosed a
clearly sensitive secret.
Still, wide-ranging leak investigations can also have unintended
consequences — as when Patrick J. Fitzgerald, the prosecutor
investigating the disclosure during the Bush administration of the
identity of a Central Intelligence Agency operative, Valerie Plame
Wilson, ended up charging Vice President Dick Cheney’s top aide, I.
Lewis Libby Jr., with lying to the F.B.I. under questioning.
In that investigation, Mr. Fitzgerald had been made a special counsel
and delegated all the powers of the attorney general. Some
Republicans, accusing the Obama administration of leaking information
to make President Obama look tough, have called for special counsels
to lead the new investigations, too.
Mr. Obama on Friday denied that his White House had sanctioned any
leaking. And Mr. Holder rejected the need for a special counsel,
instead appointing two United States attorneys without any special
That could make a difference if the investigators want to subpoena
reporters or their records, because Mr. Holder himself would have to
sign off on such a request. Mr. Fitzgerald, by contrast, was able to
subpoena a New York Times reporter, Judith Miller, on his own. (She
ended up spending 85 days in jail after initially refusing to
Because leak investigations raise Constitutional issues about press
freedoms, Justice Department regulations say that prosecutors may not
subpoena reporters’ testimony or communications records unless they
have exhausted all other means of getting the information they are
seeking. Special counsels must obey such restrictions, too — and
inevitable litigation over any subpoenas to the press mean courts
will oversee their decisions.
“These cases are supposed to be difficult,” said Steve Aftergood,
director of the Project on Government Secrecy with the Federation of
American Scientists. “Investigators will have to balance several
competing interests — including punishment of leaks, preservation of
remaining secrets, and freedom of the press. That is a challenging
assignment and it explains why there have been relatively few
prosecutions over the years.” (Copyright 2012 The New York Times
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