A report out from U.S. Sen. Ron Johnson, Republican of Wisconsin and head of the Homeland Security Committee, details just how leaky Washington has gotten in the Trump era. The top-line number: In Trump’s first 126 days in office unnamed officials, former officials and other people seemingly in possession of sensitive information leaked the raw material for 125 stories that arguably violated national security laws. That compares with a total of eight such leaks in the first 126 days of the Obama administration and nine in George W. Bush’s opening days.If the past is a guide, very few leakers will be prosecuted and those that are will likely be low-level government employees and contractors who run afoul of federal laws that specifically target them.

Whether the current outbreak is an “avalanche of leaks” that is “harming national security,” as the GOP staffers describe it, is a matter of opinion. But the report does a credible job of totaling up the flood — perhaps a better metaphor — of leaks that seem to be pouring out of the federal bureaucracy and especially the intelligence agencies. As a longtime journalist, I know how the game is played and have been amazed at how outlets like the New York Times and Washington Post have run story after story without making much of an effort to identify their anonymous sources to their readers. The cardinal rule is never to burn a source, of course. But it also strays across the line into lying by omission when powerful officials use the Times to publicize their version of events and readers are given little or no information with which to judge the agendas of the leakers.

When a single enterprising reporter uncovers a well-placed source and convinces him or her to risk it all on disclosing evidence of government wrongdoing, that’s a scoop. When multiple news outlets run the same leaked information almost simultaneously — as the Times, Post and others did with Trump’s disclosure of sensitive Syria intelligence to the Russian ambassador on May 15 — that smells more like a media campaign. (In this case, probably orchestrated by the Israelis, who supplied the intelligence about Syrian terrorist bombmaking techniques.)

The Senate staffers used 36 search terms journalists commonly use in anonymously-sourced stories including “people familiar with” and “Trump and U.S. officials.” They tagged articles that had no named sources and fell under a category in Obama’s Executive Order 13526 reasonably expected to damage national security.

No single statute criminalizes the release of classified information. Defense materials are covered by the Espionage Act, originally enacted at the start of World War I. It prohibits disclosure of information “relating to the national defense,” which the U.S. Supreme Court further defined in a 1941 decision as a “generic concept of broad connotations, relating to the military and naval establishments and the related activities of national preparedness.” Section 783 further prohibits transmitting national defense information to “one not entitled to receive it.” Section 794 covers “classic spying,” where information is collected for a foreign government. Other laws prohibit disclosing the identity of covert intelligence agents and 18 U.S.C. 641, which prohibits the theft of government records, has been used to prosecute leakers.

The tricky part in most of these cases is proving mens rea, or “guilty mind.” Most parts of the Espionage Act require proof the suspect intended to injure the U.S. or help a foreign nation – difficult to claim when the leaker thinks she’s helping the nation by revealing unsavory government practices.

The Senate GOP team turned up 125 such stories after stripping out borderline cases and stories about “palace intrigue” struggles within the Trump White House. Examples of leaks against the Trump administration included a memo quoted in Mother Jones telling intelligence analysts to keep the President’s daily briefings short and free of nuance and the details of Trump’s phone call with the Australian Prime Minister.

Many of the stories came “clearly from within the intelligence community, given the large number of stories reporting on secret intelligence and how publications cite their sources,” the report concludes. Reports on Russia monitoring are “especially troublesome,” the authors wrote, because they reveal intercepts of communications “within the Kremlin” and which U.S. agency is doing the monitoring. (Citing this Jan. 19 story in the New York Times.)

The report’s authors included the leaks former FBI Director James Comey orchestrated of his own conversations with Trump, since they fall within Executive Order 13526’s definition of potentially illegal leaks. (Comey attempted a single-blind leak by giving his memos to a Columbia Law School professor who in turn gave them to reporters. Leakers who really want to keep their fingerprints off the goods double- or triple-blind their information or send it over the transom in via a secure electronic channel.)

The Senate report references an earlier Congressional Research Service report that contains bad news for government employees and contractors who think the First Amendment will shield them from prosecution if they’re caught. The authors conclude no accused leaker has ever been acquitted on a “public interest” justification. “Courts have regarded such disclosures by government employees to be conduct that enjoys no First Amendment protection, regardless of the motives of the divulger or the value the release of such information might impart to public discourse.”

In other words, if you do the crime, expect to do the time.

The rules are more lenient for journalists who report what leakers tell or give them. The government has never prosecuted a traditional news organization for the receipt of classified information. And the U.S. Supreme Court has said “routine newsgathering” is presumptively legal, without defining what “routine newsgathering” means. In a 2001 decision, the court said “state action to punish the publication of truthful information seldom can satisfy constitutional standards.”

Here are some of the cases cited by the CRS of leakers who have been prosecuted, starting with one  that ultimately helped to bring down President Richard M. Nixon.

  • Daniel Ellsberg and Anthony Russo: The government prosecuted this pair of RAND contractors for leaking the classified Pentagon Papers to the New York Times in an effort to expose the floundering Vietnam War effort. The case ended in mistrial in 1972 after disclosures of government misconduct including the Nixon administration’s break-in at Ellsberg’s psychiatrist’s office in Beverly Hills.
  • Samuel Loring Morison: Intelligence analyst convicted in 1985 of selling photographs of a Soviet naval vessel to Jane’s Defence Weekly. The jury rejected his claims he was bringing the magnitude of the Soviet military threat to light and found him guilty of violating the Espionage Act, specifically giving information to someone not authorized to receive it.
  • Shamai Leibowitz: Hebrew translator working for the FBI who leaked transcripts of intercepted diplomatic phone calls to bloggers. The first prosecution under the Obama administration’s toughened anti-leaker rules, he  pled guilty and got 20 months.
  • Thomas Drake: A year in prison for exceeding his authorized use of an NSA computer after the government had to walk back stiffer charges he leaked classified information to the Baltimore Sun. Turns out much of it was already out in the open.
  • Jeffrey Sterling: Sentenced to 42 months in prison for disclosing a covert CIA operation to New York Times journalist James Risen.

 

 

Categories: National security