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Most Justice Department Probes of High-Level Leaks Go Nowhere

Posted on: Sunday, 1 January 2006, 18:00 CST

WASHINGTON _ When President Bush defended the National Security Agency after the disclosure that it had spied on hundreds of Americans, he angrily denounced media leaks about the program, and the Justice Department has now opened a criminal probe.

But an ongoing Justice investigation of the president's own staff in an unrelated leak case and the handling of hundreds of other leak allegations each year suggest that the probe of the NSA leak _ which focuses on the disclosure of classified information to The New York Times _ faces huge obstacles.

Only two government officials have ever been convicted of leaking classified information to a news organization. Samuel L. Morison, a Navy intelligence analyst, was prosecuted for leaking three spy satellite photos to Jane's Defence Weekly in 1984; Jonathan Randel, a former Drug Enforcement Administration analyst, was convicted in 1999 of leaking confidential information about DEA investigations to a London newspaper.

More recently, special prosecutor Patrick Fitzgerald acknowledged difficulty proving that any laws governing the release of classified information were broken in the White House leak to the media of a CIA operative's identity. Fitzgerald did win an indictment Oct. 28 of I. Lewis "Scooter" Libby, former chief of staff to Vice President Cheney, for allegedly lying to investigators in the case. But after two years, Fitzgerald has charged no one with illegally releasing sensitive national security information _ the charge that prompted the investigation.

Mark Corallo, a former Justice spokesman who is now a spokesman for Bush adviser Karl Rove in matters related to the Fitzgerald investigation, said the department typically received hundreds of requests a year from intelligence agencies to investigate leaks, and most cases went nowhere.

One reason is that the Justice Department, despite a handful of high-profile cases, has been reluctant to subpoena reporters who for reasons of confidentiality declined to testify; another is that laws governing such prosecutions require the government to show that the leaker intended to break the law _ a difficult hurdle to clear.

Corallo said that while he was Justice spokesman under then-Attorney General John Ashcroft, the department signed off only twice on subpoenas to reporters who had declined to testify; in both instances, one in the CIA probe and the other in an unrelated case in Chicago, the subpoenas had been requested by Fitzgerald.

"The typical case hits a dead end very quickly, because everyone denies doing it," said Mark Zaid, a lawyer who represents dozens of CIA employees in disputes with the agency over the release of classified information. "Unless someone turns, there is nothing they (prosecutors) can do."

The standard for proving an illegal leak is so stringent, Zaid said, that the CIA prefers to seek administrative sanctions, such as revoking security clearances, rather than press criminal charges.

Congress has on occasion sought to make it easier to prosecute leaks, but to little avail. Sen. Richard Shelby, R-Ala., introduced legislation in 2001 to stiffen penalties for leakers. Like Britain's Official Secrets Act, it would have made all leaks of classified information criminal, regardless of the leaker's intent.

But the proposal sparked an uproar, and the bill soon died. Its main opponents: news organizations and civil-liberties advocates who contended that the bill would spur prosecutors to haul reporters into court for information on where they were getting their leaked secrets.

In an odd twist, Shelby himself became embroiled in a Justice Department leak probe in 2002 after news organizations reported that the NSA apparently had intercepted messages from al-Qaida operatives on Sept. 10, 2001, that an attack was imminent. The coded messages _ the match begins tomorrow and tomorrow is zero day _ weren't translated until after Sept. 11, spurring concerns that the NSA had blown an opportunity to break up al-Qaida's plot.

Lawmakers and staffers at the Senate Intelligence Committee, including Shelby, then its vice chairman, immediately came under suspicion in the leak, and the case was referred to the Justice Department. Prosecutors eventually dropped the case because, according to a former Justice official, the department was reluctant to subpoena reporters.

Congress itself set high legal hurdles for leak prosecutions, fearing that an overly harsh crackdown on leaks would leave intelligence agencies unaccountable. It passed the Intelligence Identities Protection Act in 1982 after former CIA agent Philip Agee disclosed the identities of hundreds of agency operatives abroad.

The law imposed stiff criminal penalties for exposing undercover agents, but it also sought to protect whistle-blowers' ability to disclose agency misconduct.

Victoria Toensing, a prominent Republican lawyer who was then chief counsel to the Senate Intelligence Committee and helped draft the law, said news organizations, civil-liberties groups, and others pressured Congress to leave some ability for employees to tip off the media to agency shortcomings.

Those restrictions go a long way toward explaining why Fitzgerald, after a probe lasting two years and costing more than $750,000, has yet to prove that national security laws were violated in the CIA leak case.

The case created an uproar in July 2003, when it was disclosed that administration officials had leaked the identity of Valerie Plame Wilson, whose CIA employment was classified, to the press. Wilson's husband, former Ambassador Joseph Wilson, had been a fierce critic of the administration's policy in Iraq, and Democrats alleged that the administration was pursuing a vendetta against him.

In announcing Libby's Oct. 28 indictment on charges of perjury and obstruction of justice, Fitzgerald noted the difficulty of proving that Libby had broken any national security laws. Libby never acknowledged leaking information in the first place, so prosecutors couldn't make a judgment about his intent, Fitzgerald said.

"When you decide whether or not to charge someone with a crime, you want to know as many facts as possible," Fitzgerald said. "You want to know what their motive is. ... You want to know their intent. ... If you are asking me what his motives were, I can't tell you."

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(c) 2006, The Philadelphia Inquirer.

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Source: The Philadelphia Inquirer

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