How "Special" Does the Counsel Prosecuting Leaks Need to Be?
/wp-content/uploads/2012/08/Josh-Kuyers-Obama-Leaks-150×150.jpeg” alt=”" width=”150″ height=”150″ />Despite the election year ramifications, the recent spate of national security leaks has caused a bipartisan uproar. Congressional distaste for the disclosures even briefly transcended politics through a joint press release from the House and Senate Intelligence Committees pushing the White House toward a full, fair, and impartial investigation.
Predictably, the constructive criticism stopped soon thereafter. Republicans claimed that the leaks had been organized by the White House to boost President Obama’s national security and foreign policy credentials. They demanded that the
White House appoint a “special counsel” to ensure that any investigations were impartial.
Meanwhile, the White House called the accusations “offensive” and rejected calls for any “special counsel.” Instead, Attorney General Holder assigned two U.S. Attorneys to head up the ongoing investigations into “possible unauthorized disclosures of classified information.” Holder’s mandate to the prosecutors “fully authorized” them to prosecute any “criminal violations,” to “consult” with the Intelligence Community, and “follow all appropriate investigative leads” within the Executive and Legislative branch.
Yet regardless of whether permanent prosecutors or “special counsel” received the job, prosecuting leaks under the current legal framework has proved difficult. The only unauthorized disclosures of classified material that would likely amount to a criminal violation would be based on the modern day codification of the Espionage Act of 1917 found in 18 U.S.C. § 793(d). Importantly, this statute does not criminalize the mere disclosure of classified information. Instead, the perpetrator must willfully give national defense information to persons not entitled to receive it. Furthermore, the ambiguously termed “national defense information” must also have been revealed with intent to harm the United States or to aid a foreign state.
Thus, even though everyone can agree that the unauthorized disclosure of classified information is typically a bad thing, current legislation presents a substantial barrier to any prosecutor, no matter how “special.” In fact, given both the content of the disclosures (primarily identifying the United States’ past successes against Al Qaeda and its affiliates) and the identity of the recipients of that information
(U.S.-based reporters), it does not appear that the leaks were motivated by a desire to hurt the United States in any way.
Additionally, as both Charlie Savage and David Laufman note, leaks prosecutions have been as notoriously difficult as they have been unsuccessful. In fact, in 2010, the Department of Justice (DOJ) sent a Letter to the Senate Intelligence Committee describing the DOJ’s recent track record on leaks prosecutions. According to the Letter, intelligence agencies notified the DOJ of 183 potential leaks from 2005 to 2009. Of those, the DOJ opened 26 investigations and did not actually prosecute anyone. Rather than any investigative or prosecutorial inefficacy, the Letter cited the difficulties of finding a single leaker from information that was “initially widely disseminated.” Interestingly, the Letter recommends administrative action, as a potentially “better deterrent” to leaks than prosecutions.
Therefore, instead of arguing over who should be prosecuting, perhaps Congress should revisit its current legislation on what constitutes a crime for the disclosure of unauthorized information and how to best encourage executive and legislative officials to fight leaks at their source.
Following the spirit of the DOJ’s 2010 Letter, Director of National Intelligence James R. Clapper has recently decided to utilize the administrative approach in combating unauthorized disclosures. In a recent press release, DNI Clapper outlined two new Intelligence Community (IC) regulations that he hopes will better deter and detect leaks.
(1) A question relating to unauthorized disclosure of classified information will be added to the security clearance polygraph examination for all IC agencies that utilize it.
(2) The IC Inspector General will be authorized to conduct independent investigations into leaks cases if the DOJ declines to prosecute.
This type of administrative action, while not overly awing in its tenacity, is a step in the right direction. It demonstrates a desire to move away from the costly reactive mechanism of prosecutions and towards proactive and preventative administrative solutions. Ultimately, it recognizes that leaks are best plugged at their source.