April 29, 2006
No, there's not a recent deluge of
leaks of classified information. The numbers are consistent with those in
the past couple of decades. What is different today is that the kid gloves
are off regarding the government's treatment of reporters. Thanks to the
clamoring by editorial pages of many major newspapers -- which resulted in
Special Counsel Patrick Fitzgerald investigating the publishing of CIA
employee Valerie Plame's name -- case law makes it clear that journalists
can be hauled before the grand jury and forced to cough up their sources, or
face Miller time in jail.
Editorial writers professed to be
shocked and appalled by the leaking that led to columnist Bob Novak
publishing Ms. Plame's name (in the context that perhaps nepotism was
involved in the CIA sending her husband on a mission for which he was
unqualified). The Chicago Tribune ranted that "there is a burden on the
Justice Department and the White House to prove that they will pursue this
aggressively and honestly. . . . If someone in leaked classified information
. . . boot him out and let the prosecutors deal with him." "The leakers
should be prosecuted," railed the Dallas Morning News, joyful that the CIA
asked the Justice Department to investigate. The Los Angeles Times echoed
The Providence Journal declared that
if people at the White House leaked, "heads should roll" and called Bob
Novak's reporting "despicable." The most legally unsophisticated response
was from the Atlanta Journal-Constitution, characterizing the charges as
"perilously close to treason." The only debate for the media in the fall of
2003 was whether the Justice Department or a special counsel should
investigate the matter.
John Ashcroft's Justice Department
bowed to the pressure and appointed Mr. Fitzgerald, a prosecutor who pursued
alleged leakers with the same vigor, legal tools and blinders he had used
against terrorists. Without ever establishing an underlying crime, he
managed to tie in knots numerous media giants, including Time magazine and
the New York Times. Time's Matthew Cooper agreed to testify just before the
jail cell clanked shut, but the Times's Judith Miller spent 85 days in the
clink. In the process, Mr. Fitzgerald firmly established that when the
government pursues a leak of merely alleged classified information,
the reporter loses.
Now the press wants to backpedal on
leak investigations. Let's give them the benefit of the doubt and say it is
only a coincidence that their initial ardor for a leak investigation -- when
a conservative columnist "exposed" a spouse of a media darling because he
criticized the Bush administration -- cooled once the New York Times and the
Washington Post published stories "exposing" a National Security Agency
surveillance program and purported secret prisons outside the United States.
Today the debate is about what
constitutes a "good" or "bad" leak. And it's the White House's fault that
classified information is leaked. According to Washington Post columnist
David Broder, only when the administration is ready "to explain itself . . .
will there be fewer Mary McCarthys contemplating the costs -- and burdens --
of leaking to the press." Sympathy is being elicited as the press
characterizes her termination as "not fair" because, by contrast, the
reporter got a Pulitzer for publishing the same information she had leaked.
One MSNBC anchor even asked whether she should be described as a
"sacrificial lamb." So much for "booting out" the leaker.
Doesn't the press know that if Ms.
McCarthy, or any other government employee, is concerned about conduct
involving classified information, there is a federal whistleblower statute
that permits her to report it to either the agency's inspector general or
Congress? The decision to prosecute leaks of classified information cannot
be distorted through a moralistic prism of whether the leaks are "right" or
"wrong." To do so ignores the damage done in the same way as excusing a
violent terrorist attack because those who maimed and killed innocent
civilians did so for a "good reason."
The government must decide whether to
prosecute leaks by evaluating the following factors: the gravity of harm to
national security because of the information compromised, whether there is a
law prohibiting the disclosure of that information, and whether a
prosecution would further harm national security by disclosing even more
classified information. The factor that used to be a deterrent to a criminal
leak investigation when I worked for the Senate Intelligence Committee and
the Justice Department -- whether to subpoena a journalist -- is no longer
that much of a hindrance.
During my tenure in government a leak
investigation might begin, but everyone knew that when it got down to the
nitty-gritty of subpoenaing the reporter the investigation would grind to a
halt. By that time, whoever had called for the investigation, usually a
member of Congress (but never the press), had moved on to other matters. And
the Justice Department would get credit for at least having gone through the
When my husband and law partner,
Joseph diGenova, was independent counsel for the leak of information about
President Clinton's passport, he decided not to subpoena the journalists who
had published the information after he contacted them and they said they
would refuse to name their sources. He made the decision by weighing the
seriousness of an actual crime -- a Privacy Act violation -- against
possibly sending reporters to jail. Concern for the reporters prevailed.
In Mr. Fitzgerald's investigation, he
has yet to provide any evidence there was an actual crime committed in the
course of providing Ms. Plame's name to the press. And yet he still sent a
journalist to jail. By so doing, he has shifted the presumption of whether
to subpoena journalists. If the media want to know whom to blame for the
spate in serious investigations of their reporting classified information,
they should look in the mirror.
Ms. Toensing, a Washington
lawyer, is a former chief counsel for the Senate Intelligence Committee and
former deputy assistant attorney general in the Reagan administration.