Posted on 01/01/2006 7:03:19 AM PST by wjersey
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 hale 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-Qaeda 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-Qaeda'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."
Gee, the Plame investigation was turned into a multi year multi million dollary witch hunt! I guess the NSA investigation won't go very far!
Amazing... NOT! All of a sudden these leak prosecutions are a futile waste of time and money according to the MSM and libs...
This article is a great example of disinformation. The author is intentionally trying to conflate the strictures of the Intelligence Identities Protection Act with all laws protecting confidential information. He is blurring important distinctions between the disclosure of the apparently non-confidential Plame-CIA connection with the disclosure of the confidential information about the NSA's efforts to intercept messages from Al Quaeda terrorists. You can guess for yourself what his motive might be in doing that.
Whistling past the graveyard.
One of the critical pieces of info Fitzgerald has not made public is what specifications of the charge of exposing an intelligence operative could not be met. I would imagine the answer would be all the specifications.
Had Scooter Libby held a press conference right after Joe Wilson's Op-Ed piece, denied the inference that Cheney had him sent to Niger, and stated Plame got him the job, he wouldn't have been charged with a crime.
How quickly they are backtracking from this latest "story"!
Something stinks. But it smells good to me.
I really, really think it is time for the American people to put their 'money' where their mouth is. We need to let people in Washington know we want, no demand, that these leakers be brought to justice.
I don't think protesting on the public square is going to get the point across, we need an ad campaign. We need to raise the bar and clearly express what we expect from those getting our tax dollars for paychecks, whether it is a congressman, NSA, CIA, or FBI. They need to clearly hear from us that we the people say:
"You failed to protect and defend..."
"It's Top Secret Stupid"
"A shut mouth keeps terrorists out"
I am sure you all could come with some more clever lines.
The lamestream media and the libidiots are worried that a demonrat is at the heart of the latest leaks. Hence, the play-it-down attitude.
If there was the slightest possibility a pubbie was involved...
"...We need to raise the bar and clearly express what we expect from those getting our tax dollars for paychecks, whether it is a congressman, NSA, CIA, or FBI. They need to clearly hear from us that we the people say:
"You failed to protect and defend..."
"It's Top Secret Stupid"
"A shut mouth keeps terrorists out"
I am sure you all could come with some more clever lines."
How about "we have a nice spot for your in Fort Marcy Park for leakers".
Wishful thinking from the writer.
M.A.D.
Couldn't the leak of NSA's action be considered a treasonable offense? If so, wouldn't that put into play much more far-reaching statutes?
Fitz WON an indictment? Fitz didn't WIN anything. he INDICTED. And when this goes to court, there is every reason to believe he will LOSE.
Bingo. It's that or he's a dunce. I have a feeling it's the latter.
It's also somewhat baffling, though it it shouldn't be, how lazy these MSM 'journalists' are. All they have to do is Google Title 18 of the US Code and take gander at Chapter 37 - ESPIONAGE AND CENSORSHIP - sections 793, 794 and 798 to see that the leaker(s) and that maggot RISEN, his book publisher, along with the NY Times are in deep do-do.
Whomever is involved is looking at, or should be, a good 30 years plus $30K in fines, plus conspiracy charges for another ten years and $10K in fines -- and that's for each offense. And any 'property' and/or financial gains made from leaking classified information can be confiscated too.
And if the NY Slimes et al are thinking of the Pentagon Papers as an out, they're thinking wrong. The above sections have been revised since then, specifically by adding the word "publishing".
I do not understand! Any employee of the Government or contractor has signed an agreement to NOT disclose secret Government information unless the recipient has the security clearance commensurate with the data, AND a need-to-know such data. This is clearly spelled out to the handler of the classified data that unauthorized disclose is a felony and punishable. WHAT IS SO HARD FOR THE DOJ?? Beyond my simple comprehension and experience working as a classified contractor. Now if it is a Congresscritter that leaked I can see the problem DOJ has, BUT the pubblies need to stand tall and go after who done it, no matter their party affiliation. Bring them down - NOW.
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