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Leaks policy born of past failures

by SHARON LaFRANIERE New York Times News Service on July 21, 2013 2:30 AM

Soon after President Barack Obama appointed him director of national intelligence in 2009, Dennis C. Blair called for a tally of the number of government officials or employees who had been prosecuted for leaking national security secrets. He was dismayed by what he found.

In the previous four years, the record showed, 153 cases had been referred to the Justice Department. Not one had led to an indictment.

That scorecard “was pretty shocking to all of us,” Blair said. So in a series of phone calls and meetings, he and Attorney General Eric H. Holder Jr. fashioned a more aggressive strategy to punish anyone who leaked national security information that endangered intelligence-gathering methods and sources.

“My background is in the Navy, and it is good to hang an admiral once in a while as an example to the others,” said Blair, who left the administration in 2010. “We were hoping to get somebody and make people realize that there are consequences to this and it needed to stop.”

The Obama administration has done its best to define those consequences, with an aggressive focus on leaks and leakers that has led to more than twice as many prosecutions as there were in all previous administrations combined. It also led to a significant legal victory Friday when a federal appeals court accepted the Justice Department’s argument that the First Amendment does not protect reporters from having to reveal the sources suspected of leaking information to them.

In tracing the origins of this effort, present and former government officials said the focus on leaks began at the administration’s highest levels and was driven by pressure from the intelligence agencies and members of Congress.

An unprecedented cascade of disclosures, including hundreds of thousands of secret diplomatic cables made public by WikiLeaks, according to these officials, gave the search for leakers a growing sense of urgency, while technological advances made the job of finding them easier. And prosecutors — until recently — were given more latitude to comb through journalists’ records to hunt for suspects.

The charges filed last month against Edward J. Snowden, the former National Security Agency contractor now holed up in a Moscow airport, are the seventh leak-related prosecution brought by the Justice Department. And the department’s next case may be aimed at just the kind of top-level target Blair said he had hoped for: James E. Cartwright, a retired general who was vice chairman of the Joint Chiefs of Staff. Cartwright has been identified as a focus of an investigation into the disclosure of classified information about U.S.-led cyberattacks on Iran’s nuclear program.

Supporters of the crackdown — even those with qualms about seeking evidence from journalists — say a culture of leaking must be reined in to protect covert sources and high-risk intelligence operations and reassure allies that it is safe to share intelligence.

“Somebody finally said this has got to stop,” said John D. Negroponte, a former diplomat and director of national intelligence under George W. Bush. “Maybe if there are more prosecutions, it will.”

But critics argue that the Cartwright case, and now the appeals court ruling, show how the anti-leak campaign has gone too far, producing a chilling effect on news gathering without deterring leakers. Snowden has said he was inspired by the deeds of Pfc. Bradley Manning, who is facing a court-martial after divulging the diplomatic cables to WikiLeaks.

“I think it has gotten away from them,” said Morton H. Halperin, who served in national security positions in three previous administrations. “If the president doesn’t fix this, I think his claim that he understands the importance of balancing the First Amendment against claims of national security will lack any credibility.”

Implicitly at least, Holder seemed to acknowledge some of the criticism this month when he restored and bolstered longstanding Justice Department restraints on seeking evidence from journalists. He said those restrictions “will help ensure the proper balance is struck when pursuing investigations into unauthorized disclosures.”

Holder’s move came in response to a torrent of criticism after the revelations this spring that prosecutors had secretly subpoenaed the phone logs for more than 20 phone lines of The Associated Press in one leak inquiry and two days of phone logs of a Fox News reporter, James Rosen, in another investigation aimed at a State Department adviser, Stephen Jin-Woo Kim. Prosecutors also obtained a court-ordered search warrant for Rosen’s emails by identifying him as a criminal co-conspirator of Kim’s.

But Holder’s conciliatory message was seemingly undermined by the Justice Department’s success in overturning a lower court’s ruling that a reporter for The New York Times, James Risen, had a First Amendment right to refuse to reveal his sources in the trial of a former CIA analyst, Jeffrey Sterling. Sterling was charged in 2010 with disclosing classified information to Risen about a covert operation to deceive Iranian scientists described in Risen’s 2006 book, “State of War.”

The targeting of Cartwright in the investigation of disclosures about cyberattacks on Iran also represents an escalation of effort. If charged, he would be by far the most senior official ever to face criminal prosecution for divulging information to the news media. Other high-ranking officials have faced minor criminal charges for mishandling information, but only low-to-mid-level analysts, contract workers and technicians have been indicted on charges of releasing secrets to journalists.

Cartwright has not commented on the reports that he is being investigated, but his lawyer, Gregory B. Craig, has said any suggestion that Cartwright betrayed his country is “preposterous.”

So far, the Obama administration has won two felony convictions for unauthorized disclosure of national security secrets. Manning also has also pleaded guilty to 10 offenses and is being tried in military court on others. A fourth felony prosecution crumbled, producing a minor misdemeanor conviction, and Holder has privately said he regrets pursuing it.

Holder said in June that his department’s record number of leak prosecutions was a logical legal response to an increase in both the number and seriousness of leaks. But in interviews, former prosecutors and other administration and congressional officials offered a different perspective.

Though the Justice Department issued no explicit directive to pursue leakers more vigorously, according to these officials, the climate in which leaks were judged changed markedly as a new team of national security officials joined the Obama administration and quickly ran head-on into what it saw as distressing lapses in controlling state secrets.

“There was a lot of pressure to use every possible investigative tool,” said one senior former prosecutor who spoke on the condition of anonymity because he is not authorized to speak for the Justice Department.

According to Blair, the effort got under way after Fox News reported in June 2009 that U.S. intelligence had gleaned word from within North Korea of plans for an imminent nuclear test — a disclosure that eventually led to Kim’s indictment. The report infuriated the Central Intelligence Agency not only because it indicated that the United States was privy to the private discussions of North Korean leaders, but also because it was broadcast mere hours after a classified report with that information had been distributed to intelligence officials.

In subsequent meetings and phone calls, Blair said he and Holder, who declined a request for an interview, agreed that leaks were flourishing partly because the government was too passive in addressing them. Of 153 referrals to the Justice Department of national security leaks during Bush’s second term, only 24 had led to FBI investigations. In half of those cases, investigators had identified suspects, but none of them had faced charges, although two investigations were in an advanced stage and produced indictments in 2010.

Holder’s “attitude, the same as mine, was to speed up the process and make it more effective,” Blair said. “So, yes, that would mean more aggressive prosecution.”

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