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National Security / ANALYSIS

Why the Government Can't Fix Its Leaks

WikiLeaks founder Julian Assange.(Carl Court/AFP/Getty Images)

photo of Marc Ambinder
June 13, 2011

The government’s case against a former National Security Agency manager accused of providing a reporter with classified information about a sophisticated data-mining technology collapsed Friday.  Though he allegedly compromised a major secret, Thomas Drake, pled guilty to a misdemeanor charge of mishandling classified information. 

Suffice it to say, there are several ways to read the government’s decision to back down. One is that it is extremely difficult to prosecute leakers of classified information.  Another is that the demise of the Drake case suggests the government may be spinning its wheels. That, in turn, implies that the main argument against such prosecutions –- that it chills speech and discourages whistleblowers -- may not be very strong.

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In fact, the opposite might be true, at least in the national-security realm.

Though the less-painful penalties for being caught – shame, loss of a security clearance, suspension – might deter some would-be leakers, whistleblowers tend to get away with it. The law is not straightforward, and when you combine it with perverse incentives inside the intelligence community and with a cannon of decisions (formal and informal) that defer to the prerogatives of major news entities, it tends to provide a measure of protection.

That’s not to say that the government isn’t trying. They just aren’t very good at it. One strategy has been to try to test the notion that journalists can be prosecuted for disclosing classified information under the Espionage Act, which criminalizes the disclosure of sensitive communications or intelligence sources, methods, and ciphers by anyone to anyone.   (In theory, the government could sue to stop publication, but the Nixon administration chose a stupid case – the Pentagon Papers – to test this principle with the Supreme Court; it lost, thereby giving publishers wide latitude.)

The George W. Bush and Obama Justice Departments have said, yes, absolutely, reporters can be held liable for publishing classified information. A task force of the smartest minds in government is trying to figure out if there is any way to punish WikiLeaks founder Julian Assange. Privately, the Justice Department can’t figure out a formal way to distinguish Assange from The New York Times, unless it can prove that he helped procure the information. 

Prosecutors and policy makers have been extremely reluctant to actually take the step of directly prosecuting journalists, instead preferring to pressure reporters by going after their sources. This has the feel-good benefit of forcing judges to jail journalists, taking the responsibility for penalties out of the hands of prosecutors.  For crimes that don’t involve national security and do involve smaller, poorer, publications, judges do prosecutorial handiwork by imposing onerous civil sanctions.  Even in its current condition, The New York Times can withstand most financial assaults.

Later this summer, the government will call Times reporter James Risen to a Washington courtroom and ask him whether Jeffrey A. Sterling, a former CIA case officer, was the source for his stories about a clandestine U.S. program designed to degrade Iran’s centrifuge capability. Risen is expected not to reveal his source, offering a judge the opportunity to jail him.

If that happens, he will be the decade’s second reporter of national prominence to spend time behind bars for revealing a source – the first being Judith Miller, who would not identify Scooter Libby, then-Vice President Dick Cheney’s chief of staff, as a source for a story she never even published. The identity of a U.S. strategic asset -- a CIA case officer named Valerie Plame – had been disclosed by columnist Robert Novak.  The alleged motive for the leak remains unclear, as the person identified as having given Novak the information – Dick Armitage, a former chief of staff to then-Secretary of State Colin Powell – was not  known as a pro-war agitator.  Armitage was never charged with a crime. (Matthew Cooper, a correspondent then for Time, narrowly avoided jail for refusing to identify his Plame source. Cooper now edits National Journal Daily.)

There was a measure of justice for Plame, even though her exposure was personally and professionally devastating: Libby was convicted on several counts and spent some time in jail before having his sentence commuted by President Bush. But the trial turned into a proxy about the Iraq war, and the messiness of it all stung the Justice Department to such a degree that it became quite wary of hunting down leakers in subsequent years.

When Barack Obama took office, his Justice Department was instructed to wrap up as many cases as possible and bring serious ones to trial. Obama does not tolerate leakers – unofficial leakers, anyway -- and has instructed his numerous directors of national intelligence to crack down on them.    

One senior administration official said that the only time he witnessed Obama raising his voice was in the summer of 2010, in the Situation Room, when complained about leakings describing the CIA efforts to expand its footprint in Yemen.

Director of National Intelligence James Clapper promptly sent a memo to the entire intelligence community in which he noted, with an edge, that “blabbing secrets to the media is not ‘in.’ So far as I’m concerned.”  But he has found it frustrating to keep pace with the volume of information that’s been disclosed. His top counterintelligence deputy, Robert “Bear” Bryant,” a former FBI agent, has been working for years on ways to disincentivize leaking. Prosecution, always the option of last report, is often no option at all. 

After the successful Navy SEAL raid that killed Osama bin Laden, the intelligence community was again compromised by a wave of leaks; Denis McDonough, the deputy national security adviser, characterized it as a big “barf” of secrets. Clapper sent another memo.

Longtime intelligence officials have seen this pattern before. One 20-year veteran of the community who is now a program manager at an agency said that “we all know 98 percent of the leaks come from policy-makers or from authorized CIA leaks,” referring to, for example, the CIA recently obliquely informing Reuters that it had launched a successful Predator drone strike in Pakistan. But it’s the other 2 percent who are unusually vulnerable to prosecution. The idea here is that policy makers have an unspoken right to disclose classified information if they believe it furthers the national interest. A similar argument is that leaks -- classified and nonclassified -- serve a fundamental function in Washington, one that would virtually bring the government to a halt if laws were enforced to the letter.

Proving that a person leaked classified information to a journalist is very hard, unless the government comes into possession of incriminating e-mails or is able to observe the transaction.  Most suspected leakers aren’t prosecuted under the Espionage Act. Instead, they’re charged with mishandling sensitive information. Complicating factors is the fact that, in trying to mitigate the effect of news stories that could potentially harm national security, senior officials often bargain with journalists, disclosing classified findings in order to persuade them that what they’re about to print would be more harmful than useful. 

Senior administration officials lament that the number of cases they’re able to bring to trial pales in comparison to the volume of classified information being leaked. Many agencies try to handle leaks administratively, which makes it very hard to prosecute them.

“When we would try to handle something inside an agency, the Justice Department would always tell us, ‘Well, this is on you now,’ ” says Benjamin Powell, a former general counsel for the director of national intelligence.  That’s one reason why Powell thinks that the government might want to give up on the concept of pursuing criminal charges in most cases.

The government does not have the resources to investigate all but a fraction of the cases it gets – and actually tries to keep this fact a secret because some fear it would further encourage leaking. “Grey mail,” is what the community calls this. In Drake’s case, the government essentially lost its case when a judge said that it would have to disclose to a jury several highly classified documents in order to prove that Drake’s alleged disclosure significantly damaged national security. The government could not bear that cost.  

One new strategy being pursued by the CIA might become a template for other agencies. The CIA is suing a former case officer for violating his employment contract by publishing a book about his experiences without completing the required prepublication review process.  The author, known by the pseudonym “Ishmael Jones,” remains under cover. His book The Human Factor is a well-regarded expose of what he terms the CIA’s mismanagement of employees and the human intelligence spying process. He insists that it contains no secrets. But when he submitted it to the CIA for review, the agency determined that the entire manuscript was, in its aggregate, a secret, and that no amount of redactions could save it. Jones published the book anyway. And so the CIA decided to bring civil charges against Jones. "CIA officers are duty-bound to observe the terms of their secrecy agreement with the Agency," Director Leon Panetta said at the time. "This lawsuit clearly reinforces that message."

Civil suits won’t punish offenders with jail time, but they’re easier to win.  The standard of evidence is lower. The administration can more easily control the introduction of classified evidence. And the process of being “read in” to a secret program or signing a nondisclosure agreement provides the contract.

“People will get the message if they see someone marched out the door,” Powell said.  Their careers will be over and their clearance lost – although they won’t be sent to jail. 

And inside the community, they might become the tool of choice if Congress doesn’t provide them with more criminal options.  Congress doesn't seem to be at this stage yet.

Lawmakers have attempted to make it easier for whistleblowers to take their concerns directly to Congress, rather than go through an internal process that could subject them to retaliation.  A senior congressional staffer who works on intelligence said that no person, to his knowledge, had availed him or herself of this option. It requires the person to notify (to some extent) his or her manager.  The  other choice: A person who thinks something is wrong can try to go to the inspector general. But it is very hard to preserve anonymity. 

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