Leak Soup

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 that sentiment.

[Patrick Fitzgerald]

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 motions.

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.





2005 diGenova & Toensing, LLP
All rights reserved