Journalism in the Public Interest

Classified Confusion: What Leaks Are Being Investigated, and What’s the Law on Leaks?

Despite the furious back-and-forth between the White House and Republican lawmakers over national security leaks, the prosecution of leaks isn’t a simple matter.

SAUL LOEB/AFP/Getty Images file photo

Recent scoops on national security have drawn the ire of Republican lawmakers, who have accused the Obama White House of leaking stories that burnish its image.

Obama responded that he has “zero tolerance” for leaks. He also said: “the writers of these articles have all stated unequivocally that they didn’t come from this White House. And that’s not how we operate.”

Someone somewhere has to be talking. Eric Holder said he’s assigned two U.S. attorneys to lead separate criminal investigations into “potential unauthorized disclosures.” Although the Justice Department won’t comment on which particular leaks are under investigation, unnamed officials (of course) have given reporters an idea.

Here’s what we know about leak investigations underway, the legality of leaks, and why leak prosecutions have been so rare.

Leak: Stuxnet

The New York Times reported that Obama ordered cyberattacks against Iran using Stuxnet, a computer virus the U.S. developed with Israel.

Sources: “participants” in the program and the attack, “members of the president’s national security team,” “current and former American, European and Israeli officials,” “one of [Obama’s] aides,” “a senior administration official.”

Investigation: The CIA reportedly sent a “crime report” to the Justice Department on the leak, and it is—as unnamed officials told Reuters—one of the two new investigations.

Leak: Foiled Underwear Bomber

The AP reported that the CIA foiled an Al-Qaeda plot out of Yemen to deploy a new kind of underwear bomb. Subsequent stories identified the role of a double-agent in stopping the plot.

Sources: “U.S. officials who were briefed on the operation.”

Investigation: The story also apparently prompted the CIA to send a “crime report” to the Justice Department, making it the second of the criminal inquiries mentioned by Holder.

Leak: The CIA’s drone program

The CIA’s drone program and targeted strikes have been written about for years, but recent articles from Newsweek and the New York Times got particular attention.

Sources: Too many to count. The Times article alone cites “three dozen of [Obama’s] current and former advisers.” Staffers from the House and Senate Intelligence committees—whose members have been among the most vocal in their concern about leaks—were cited just last week in an article on CIA drone strikes.

Investigation: Apparently not. The CIA reportedly hasn’t filed a report on drone leaks. Unnamed officials told Reuters one reason is that the CIA’s drone program has already been so openly discussed (this despite the government’s position in a separate case that the public doesn’t know the program exists). A Justice Department official recently noted to Congress that agencies sometimes don’t request an investigation because of “wide dissemination” of the leaked information.

What laws have leakers violated?

There is no single law making the disclosure of any information stamped “classified” a crime. The Espionage Act has been used, though rarely, to prosecute the leaking of national security information. There are also laws on computer hacking and a patchwork of other statutes.

Under most of these laws, it’s not enough to show that someone leaked—the government needs to prove they did so with intent or reason to believe that the information would hurt the U.S. or help a foreign country. Prosecutions of media leaks can also be hampered by First Amendment protections. (For an in-depth legal history, see this report from the Congressional Research Service). In some cases the government has decided not to prosecute because classified information would be confirmed or further revealed in the process.

From 2005 to 2009, the Justice Department got 183 “crime reports” on leaks from others in the government. Those notifications led to 26 investigations. (The Justice Department can also start an independent investigation without a referral.) Obama has already brought six prosecutions under the Espionage Act, though many of the investigations were initiated under George W. Bush. Email and other technological changes have also made it easier, in some cases, to track leakers.

So what comes next?

If the Justice Department decides not to prosecute, the case goes back to the agency that reported it, which could take administrative steps to punish a leaker, anything from a reprimand to stripping security clearance. Many Republican senators have said the Justice Department isn’t sufficiently independent to investigate potential White House leaks. Last week more than 30 senators sent a letter calling for a special counsel. They also suggested a congressional investigation could be launched.

In response to recent leaks, Director of National Intelligence James Clapper—who oversees the seventeen-agency intelligence community—issued a new directive asking the intelligence community’s inspector general to lead further investigations in some cases where the Justice Department decides not to. Such an investigation wouldn’t be a criminal inquiry, but it would reach beyond the scope of one agency. According to a DNI spokesman, the new investigative power wouldn’t apply to leaks from the White House or non-intelligence agencies—but if the investigation pointed to a leaker outside the intelligence community, “there would be a process to make sure the employer was notified and could take their own steps.”

The directive also mandates that intelligence employees getting periodic polygraph tests be asked if they’ve leaked information. Earlier this month, another DNI directive said personnel with access to national intelligence (and that’s a lot of people) would be “continually evaluated and monitored.”

Members of both the House and Senate have indicated they are working on legislation efforts to stem future leaks, but details are still unclear.

Aren’t leaks par for the course in Washington?

That’s part of the reason Congress hasn’t made a comprehensive law penalizing them. In 2000, Bill Clinton vetoed a provision making it easier to prosecute leaks, saying it was too broad and would have had a “chilling effect” on legitimate communications.

Administrative penalties and the tools for criminal investigations that the government already has are sufficient, maintains Elizabeth Goitein, of the Brennan Center for Justice. Goitein says that new crackdowns could have an effect on would-be whistleblowers. Intelligence employees are specifically exempt from the Whistleblower Protection Act, which gives most government employees protection from retaliation for reporting wrongdoing. The government’s position (as the DOJ told us in February) is that there are internal channels by which intelligence employees can report issues and the media is not one of them.

A spokesman for the DNI said that it was “the Director’s number-one concern” that his new anti-leak policies were implemented without affecting whistleblowers.

“If they aren’t doing anything wrong, they have nothing to hide.”

If I’m forced to pony up my life’s history on demand and expose my Internet history to anybody walking by on vague suspicion of maybe being connected to some terror suspect, I think a government, “of the people, for the people, by the people,” can not act so damned paranoid every time someone blows the whistle on them.

(It would be a fascinating research project, one day, to find the point where our government’s priorities shifted more towards protecting itself than protecting Americans.)

They’re also leaking far more information than they can imagine.  That the DoJ is throwing their weight behind stopping the American people from learning about their government while they outright block investigation on Fast and Furious, banking crimes, and so forth…well, that speaks volumes that I’m sure they would rather have kept secret.

Which reminds me, I have here the so-far secret identity of the person who leaked information about the drone program.  He calls himself “Everybody in Washington”!  Seriously, they talk about it like they talk about their kids, and they’re surprised that some people connected the dots?  Morons.

Jonathan Birchall

July 2, 2012, 2:17 p.m.

So where is the dividing line between national security concerns and the public’s right to know how they are being governed? The Open Society Justice Initiative is working with partners on a draft set of principles and guidelines for ensuring proper, open review of what’s secret and what’s not. You can find details at our Right 2 Info site:

There is too much classification as much is what is “classified”... such as the CIA Drone attacks in Pakistan and Yemen are regularly reported in the international media based on information publicized in Pakistan as well as Yemen.  Another example was the Wikileaks fiasco where if one bothers to browse the leaked “classified” documents, one will find that the greatest majority of the documents should never had been classified… other than to protect the author from appearing to be ridiculous.  While a majority of those documents which deserved to be classified had information… which over time…. had rendered the information to no longer be necessary of being classified.  In plain English… Classification is being overdone and in those instances where it is… the passage of time makes the classification irrelevant. A costly waste of money….

Re:  As reported by the FAS Project on Government Secrecy…..

At a time when “leaks” are said to be running rampant, the government is spending more money than ever before to protect classified information.  The estimated cost of securing classified information in government increased last year by at least 12% to a record high level of $11.36 billion.  An additional $1.2 billion was spent to protect classified information held by industry contractors.

These figures were reported to the President last week by the Information Security Oversight Office.  (More from Federal Times.)

The ISOO report breaks down the expenditures into six categories (personnel security, physical security, etc.).  But it does not provide any explanation for the rapidly escalating cost of secrecy.

One factor in the rising costs may be the continued growth of the secrecy system.  While some essential security costs are fixed and independent of classification activity, the failure to rein in classification and especially overclassification is a likely contributor to marginal cost growth.  The ISOO report itself provides a stark illustration of the overclassification problem when it notes that the classification costs of several intelligence agencies—CIA, DIA, ODNI, NGA, NRO and NSA—are excluded from the new report because they are classified.


July 2, 2012, 4:33 p.m.



Attorney General—Cabinet—two OIC investigations-no charge
Asst. Attorney General—No Charge
Secretary of Defense—Cabinet—Pardoned
Asst. Sec. Of Defense—Guilty—to Prison
Secretary of Labor—Cabinet—Not Guilty
Secretary of Interior—Cabinet—Guilty—fined
National Security Agency—Director——Cabinet—Guilty
National Security Agency—Director——Cabinet—Guilty—Pardoned
National Security Agency—Director—-Cabinet—-Resigned
Asst. Secretary of Navy——Guilty—Fined
Dep. Secretary of Air Force-Guilty—Fined
Director of CIA—Cabinet—Died during investigation
Asst. Director of CIA—Guilty—Fined
Director of HUD—Cabinet—Pled Fifth
Asst. Director of HUD—Guilty
Director of Superfund—Guilty—to Prison
Director of FAA—Guilty-Fined
Director of NASA-Guilty—Fined
Special Asst to President—Guilty
Communications Director for President—Guilty
EPA Administrator—Resigned
Asst. Secretary of State—Guilty

9 Cabinet Members—


Oval Office
Lt Colonel
S & L
Home loan
Legal Services
Civil Rights
Product Safety
Economic Development
Synthetic Fuels
Social Security
Land Management

Haynes Johnson book “Sleepwalking”
“When The Pentagon Was For Sale”—Andy Pasztor—(awesome list of criminals)
2 books titled “Scandals”
“The Clothes Lost The Emperor”-Paul Slansky (day by day chronology of 1980’s)
“Stealing From America”—
“Landslide”-Jane Mayer & Doyle McManus

Nathan Miller book states 233 were investigated
Haynes Johnson states 138 were—charged—indicted—found guilty—investigated

p.s.—Newt and Gang spent $110,000,000-(GAO number) on Hearings and Investigations on Clinton
and one—(yes 1) person working for President Clinton was Found Guilty of a Felony. Evil man took few trips to ball games , etc. No quid pro quo per OIC –Pals doing what they had done for years—take pal to events. Pled guilty for did not have finances to fight the government and Smaltzsmear. His boss fought 37 such charges and was found not guilty on each charge.

I would appreciate anyone correcting what I write. I try to be honest but do make errors.


Christian Smith

July 2, 2012, 5:01 p.m.

This article severely downplays the Obama administration’s role in prosecuting whistleblowers.

“The Espionage Act has been used, though rarely, to prosecute the leaking of national security information.”

Since it was signed into law in 1917, it’s been used a grand total of 3 times. Until this administration, that is.

“Obama has already brought six prosecutions under the Espionage Act, though many of the investigations were initiated under George W. Bush.”

That’s a 2-1 ration, which is not inconsequential, but the article fails to address this radical disparity, or even engage in the material being leaked which, if most actually read it, shows that the government illegitimately classifies records that have nothing to do with immediate national security, and are most often (as in the case of Sens. Wyden and Udall’s recent request of the NSA, and the NSA’s Orwellian, doublethink response) classified to keep the American public in the dark.

“The government’s position (as the DOJ told us in February) is that there are internal channels by which intelligence employees can report issues…”

If there is one story that is consistently repeated by recent whistleblowers (whether it’s Drake or Binney) it’s that they were ignored by the “internal channels”, which clearly are in place only to provide an illusion of legitimacy and oversight.

And let’s not forget that we’re talking about a president who bragged about helping to pass whistleblower protection legislation while in congress and who, to this day, still claims his administration is transparent.

Given the fact that it is my understanding that private contractors - that is, “Corporate America” - have an unusually large hand on the drone joystick, I’m rather unsurprised the Republicans aren’t going after those leaks.

Dogs !bite hands=food…and so on.

This chasing of leaks is ridiculous - look instead at why the leaks are occurring.  Look at why people feel that information should be in the public arena.  And make your press releases on letterhead, rather than down in the car park as a private “briefing”.

Of course if the Republicans want to talk about leaks, let’s talk about Valerie Plame.

Christian Smith—

We’ve written before about the unprecedented uptick in leak prosecutions under Obama with more detail on the individual cases. Check out the timeline we made earlier this year:


If the US has problems with leaks, then the solution to the problem is more transperancy, not more secrets. It doesn’t take a genius to figure this out.

This ain’t “heaven”, TAV, where the only people around are “the good guys’.

This article reminded me of Whistleblowers FBI agents, Robert Wright and John Vincent’s investigation that started in 1993,  “Operation Vulgar Betrayal” They “followed the money” of the foreign corporations, charities, and foundations set up in the US by multimilllionares Saudi’s and Egyptians, and tracked the millions funneled to Hamas, Mujuideen/Al Queda/OBLiden!!! Wright & Vincent were told “let sleeping dogs lie” and shut down their investigation. Agents Wright nor Vincent were allowed (by Mueller/FBI)  to testify before the Congressional Hearing nor the 9/11 Commission. Wright tracked WHO was donating millions to these companies/charities/foundations, and also big donors to political parties! Agent Wright at a press conference in 2002 tearfully apologized to the 9/11 victims families. It was explosive information, but very sensitive to Bush and the Saudi’s. Recall the 28 pages classifed/redlined out of the 9/11 Congressional Hearings dealt with the Saudi connections. Former Congressman/ Governor, Bob Graham, (FL) and member of the 9/11 Congressional Hearings has repeatedly asked for the 28 pages to be released. WHY was Vulgar Betrayal shut down, if they knew where the funding was coming from to finance Al Queda/OBLiden and other terrorists groups, and they would have followed up in 1995 and shut their money off!! It wasn’t until AFTER 9/11 the FbI and CiA used Agent’s Wrights info to raid some of these Inc.‘s/charities/foundations! Same for whistleblower FBI agents Coleen Rawley and FBI translator Sibel Edmonds, the most gagged person in US history, (by Mueller and Ashcroft) of what she had found while at the FBI, and was ignored and fired!  Sibel Edmonds testimony to the 9/11 Commission was NOT in their final 9/11 Commission Report, and neither was testimony by Lt. Colonel Anthony Scheffer, special ops, re: “Operation Able Danger/Operation Dark Horse” was NOT included in final 9/11 report. Amazing when whistleblowers come forward, who are true American heros, are discredited and their reputations ruined to keep the “truth” hidden, to cover the lies of Govt. intell agencies, and those at the very top, who condon these cover ups to protect their royal corrupt A$$’!

Is a lot easier to say “The Republicans chose to ally themselves with Big Oil and the Islamic OPEC nations against the American people and the United States of America in the aftermath of the 1973 OPEC oil embargo.”

That’s the way I usually put it, anyway.

But for some reason when I point out how that alliance has been the driver for almost every single war in modern times in consequence of the fact that those Middle Eastern nations have used those petrodollars to buy the arms they’ve used to attack and threaten nations like Kuwait and Israel and further funded global Islamic fundamentalist terrorism, the rebuttal I get from the American right is always something puzzling like “Kennedy slept with Marilyn Monroe!”, “Carter was a peanut farmer!”, or “Obama golfs a lot!”.

Empirical evidence, I guess, for brain damage resulting from sleeping with oil sheiks♠.  Must be the lubricants used.

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