June 10, 2012


For U.S. Inquiries on Leaks, a Difficult Road to Prosecution (CHARLIE SAVAGE, 6/10/12, NY Times)

Identifying a leaker is also rarely easy, since there are often dozens or hundreds of officials who had access to the information. But it is easier today than in earlier eras to build a circumstantial case that a particular official talked to a reporter because modern communications technology -- like e-mail -- leaves trails.

Several of the recent disclosures, however, resulted from deeply reported projects. Such articles tend to have diffuse sourcing, making it hard to isolate who first disclosed the essence of what later becomes an article.

On those rare occasions when there is an identifiable leaker, the government must still decide whether prosecuting would mean divulging too many secrets to be worth it -- starting, usually, with having to confirm in public that a particular leak was accurate. Defendants who choose to fight often rely on a so-called graymail defense. This involves making the disclosure of further classified information a centerpiece of their right to a fair trial by pushing for even more revelations, such as identifying other people at the agency who had access to the same knowledge.

While a federal law, the Classified Information Protection Act, is intended to allow such trials to go forward without revealing secrets, in practice judges have not always agreed with the government that certain information can be withheld from a public trial. If it turns out that prosecutors miscalculated in predicting how a judge would rule on such evidentiary issues, the agency that had urged the Justice Department to bring the case might balk at letting it continue.

That said, there are possible situations in which it may be easier for prosecutors in the current cases to succeed -- in particular, if they can locate e-mails in which a particular official disclosed a clearly sensitive secret.

Still, wide-ranging leak investigations can also have unintended consequences -- as when Patrick J. Fitzgerald, the prosecutor investigating the disclosure during the Bush administration of the identity of a Central Intelligence Agency operative, Valerie Plame Wilson, ended up charging Vice President Dick Cheney's top aide, I. Lewis Libby Jr., with lying to the F.B.I. under questioning.

Mr. Libby's problem was lying, not leaking.

Posted by at June 10, 2012 2:04 PM

blog comments powered by Disqus