This morning's New York Times has an article by Charlie Savage about the viability of investigating and prosecuting government leaks.
While Savage gets props for pointing out the disingenuousmove of Holder rejecting bipartisan calls for a special counsel and instead appointing two U.S. Attorneys without any special independence, there are other things on which his facts are incomplete or wrong.
"[T]here is no law against disclosing classified information . . . Instead, leak prosecutions rely on a 1917 espionage statute."
Wrong. 18 U.S.C. 798-"Disclosure of Classified Information--makes it a felony to do so. 18 U.S.C. 1924--Unauthorized Removal and Retention of Classified Documents or Material--would also be appropriate. But these laws' penalties are just less than convicted under the severe, outdated Espionage Act 18 U.S.C. 793(d) and (e).
"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."
Samuel Loring Morison was later pardoned by President Bill Clinton.
"Several defendants in other leak cases pleaded guilty, avoiding a fight over whether the information they had passed on qualified [under the Espionage Act.]"
A couple (two), not several, pleaded guilty: Shamai Leibowitz and Tom Drake. Drake was not accused of "passing on" anything, classified or not. He was accused of allegedly retaining allegedly classified information. He did not plead guilty to a minor misdemeanor to avoid a fight over whether the information qualified under the Espionage Act. During pre-trial proceedings, the information supporting the 5 Espionage Act counts was all found by the judge to be unclassified.
As for Leibowitz, he was an FBI translator accused of disclosing supposedly classified information to a blogger that the FBI spied on the Israeli embassy--hardly a secret. Even the judge said,
I don't know what was divulged other than some documents, and how it compromised things, I have no idea.
"Identifying a leaker is also rarely easy."
It is for the Justice Department. As Savage's New York Times colleague, James Risen, swore in an affidavit,
I have learned from an individual who testified before a grand jury . . . that was examining my reporting about the domestic wiretapping program that the Government had shown this individual copies of telephone records relating to calls made to an from me.
And here is former Justice Department spokesman Matthew Miller bragging yesterday on
Al Jazeera English (also featuring me and Thomas Drake) about how easy it is to catch "leakers" with all the new digital technology we have.
"If it turns out that prosecutors miscalculate in predicting how a judge would rule on such evidentiary issues [regarding classification], the agency that had urged the Justice Department to bring the case might balk at letting it continue."
Savage neglects to mention that, as Judge Bennett pointed out (with some disgust) in Tom Drake's case, if the government didn't like one of his rulings, it could have appealed it.
"Justice Department regulations say that rosecutors may not subpoena reporter's testimony or communications records unless they have exhausted all other means of getting the information they are seeking."
Savage neglects to mention that in the prosecution of whistleblower Jeffrey Sterling, the government has flouted its own guidelines--thrice subpoenaing Savage's colleague, Jim Risen--once under Bush and twice under Obama--when the Justice Department knows full well who Risen's source was.
"[W]ide-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 . . . Valerie Plame . . .ended up charging Vice Presiden Dick Chency's top aide, [Scooter] Libby, with lying to the FBI under questioning."
It's an unintended consequence to prosecute someone who actually leaked highly-classified information that put lives at risk for purely political purposes??
So now we come full circle: It's an unintended consequence of Obama's leaking super-secret sources and methods as some sort of national security Viagra, while hypocritically going after whistleblowers, not leakers, with a ferocity never seen before.
Mon Jun 11, 2012 at 4:36 AM PT: Charlie Savage responded to this diary last night and asked me to add his comment:
1. You're misreading 798. It applies only to a tiny subset of classified information - cryptography and communications intelligence - not classified information per se. (There's also special provisions for atomic technology and the identities of covert operatives) 798 doesn't have anything to do with computer virus attacks, double agents in AQAP, drone strike procedures, the Bin Laden operation, etc.
See also, e.g.: http://articles.latimes.com/...
2. It's true Drake was charged with unauthorized retention, not disclosure, even though it was in the context of accusations that he leaked to the Baltimore Sun. That messy nuance is why we talk about leak-related cases when we say Obama has six. But it is still a charge under the espionage act, and you'll note I carefully said the act's PRINCIPAL provision was disclosure.
3. Lawrence Franklin also pled guilty to espionage act leaking in the AIPAC case. 3+ = several.