T Nation

On Leaks, Generally

Nice piece in the Washington Post last week on how difficult it is to get convictions under the national security laws on leak cases. It’s actually a pretty good piece, and covers a lot of stuff I’ve said previously. Of course, only now that there are leakers threatened with prosecution on leaking actual national security items does the Post see fit to publish a story like this (and the NYT, true to form, just ignores the issues) - but you’d think the editors might insist that a certain high profile case involving the Vice President’s former chief of staff might get this type of analysis?

Or would that just be spin and talking points vroom, as that was your assessment when I made these points vis a vis the first round of the Plame kerfluffle, before any perjury charges were leveled?


Little Is Clear in Laws on Leaks
Statutes Regarding Classified Data Called Hard to Prosecute

By Dan Eggen
Washington Post Staff Writer
Friday, April 28, 2006; A07

The firing of a veteran CIA officer for unauthorized contacts with the press has focused attention on the patchwork of federal laws that govern disclosures of classified information, which are written broadly but are difficult to enforce and have historically been used sparingly in cases involving journalists.

Numerous experts on national security law said Mary O. McCarthy, whom the CIA fired 10 days before her retirement for allegedly having undisclosed contacts with reporters, could conceivably be prosecuted under a number of statutes, including those governing espionage, disclosures of classified information and even theft of government property.

Yet those experts warned that any such prosecution is fraught with obstacles, including the difficulty in showing that disclosures were made with knowledge that they would harm national security or were intended to benefit a foreign power.

In addition, McCarthy’s attorney, Ty Cobb, said on Monday that she did not leak classified information to reporters, disputing a key accusation in a CIA statement issued last week. Cobb also said McCarthy did not disclose the existence of secret CIA-run prisons in Eastern Europe to a Washington Post reporter, which has been a primary focus of an internal leak investigation ordered by CIA Director Porter J. Goss.

“From the criminal side, there are a lot of difficulties with respect to this case,” said Mark S. Zaid, a Washington lawyer who has represented many former employees in disputes with the CIA and other intelligence agencies. “I wouldn’t be surprised if they decline prosecution, because it might create more problems than it’s worth.”

The case comes amid renewed debate in Congress over whether to increase penalties for leaking or to consider rewriting espionage and classified information laws. This week, the House approved a bill requiring the director of national intelligence to study yanking pensions for those caught revealing secrets.

Unlike in similar cases, such as the New York Times’s disclosure of a warrantless eavesdropping program run by the National Security Agency, the CIA has not formally asked the Justice Department or the FBI to open a criminal probe into The Post’s article on prisons, law enforcement officials said this week. Reporters at The Post and the Times were awarded Pulitzer Prizes this month for those articles.

In the latter half of the 20th century, including the Cold War years, the government prosecuted only one non-espionage leak case in federal courts. But the Justice Department has more recently signaled its willingness to test the boundaries of espionage law in a case involving two pro-Israel lobbyists, and the CIA and other intelligence agencies have launched aggressive internal probes to detect and punish leakers.

No statute in the U.S. criminal code covers all unauthorized disclosures of classified information, and Congress has debated whether an overarching law should be enacted. President Bill Clinton vetoed one such attempt shortly before he left office, and the Justice Department opposed a similar proposal in 2002, saying most, if not all, incidents can be dealt with under existing laws and administrative procedures.

The Intelligence Identities Protection Act outlaws deliberate identification of covert agents; other laws focus on electronic communications, codes, atomic secrets and other sensitive data.

The pivotal statute is the Espionage Act of 1917, which was aimed at traditional foreign spies when written but, according to the government, is broad enough to encompass a much wider array of situations.

The law outlaws unauthorized disclosure or receipt of a wide range of information “relating to the national defense” and is not explicitly limited to classified data. Many legal experts and defense lawyers argue that the law is so expansive it may be unconstitutional and, said Syracuse University law professor William C. Banks, “shot full of holes.”

“It’s been very difficult for the government to use the Espionage Act to obtain a conviction for simply leaking information,” said Banks, who also runs the Institute for National Security and Counterterrorism at Syracuse. “It was written to cover conventional espionage and spying, not conventional leaking within the government.”

But the government was successful in using the statute in the case of Samuel L. Morison, a former Navy intelligence analyst convicted of espionage and theft during the Reagan administration for leaking secret U.S. spy satellite photographs to Jane’s Defense Weekly. A judge in the case ruled against defense assertions that the Espionage Act was unconstitutionally vague.

Currently, two lobbyists for the American Israel Public Affairs Committee (AIPAC) are accused of receiving classified information during conversations with government officials, including former Pentagon employee Lawrence A. Franklin, who has been sentenced to 12 years in prison. In bringing the case, the government for the first time indicted two nongovernmental employees under the espionage law.

Prosecutors have also alarmed journalism groups and free-speech advocates by asserting that reporters could be prosecuted under the Espionage Act for receiving and publishing classified information. The laws governing classified material do not make it illegal to publish such material except in specific circumstances; for example, one statute outlaws reproducing or publishing photographs or drawings of designated military installations without government permission.

But in a brief filed in the AIPAC case, Justice Department lawyers argued there “plainly is no exemption in the statutes for the press,” saying the Espionage Act and some Supreme Court opinions indicate that journalists can be prosecuted for revealing classified information.

At the same time, the lawyers said that prosecuting a reporter “would raise legitimate and serious issues and would not be undertaken lightly,” adding that “the fact that there has never been such a prosecution speaks for itself.”

Such disputes have renewed calls to revise the laws on classified information and espionage.

“The system is ossified, complicated and a relic of the Cold War period,” said Elizabeth Rindskopf Parker, a former CIA and NSA general counsel who is dean of the University of the Pacific’s law school and was recently named to a government board formed to oversee classification issues. “I think it needs to be looked at seriously again.”

Researcher Julie Tate contributed to this report.

The moral of the story is…leak away.

It is hard to put a traitor away.

Rove and friends would know…