Andrew McCarthy on prosecuting leakers and journalists in NRO

Andrew McCarthy has an interesting discussion of how to classify various kinds of leaker-journalist interactions for purposes of prosecution, in National Review Online, here.

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April 25, 2006, 11:49 a.m.
National Review Online

Reporters and Investigations
There is no reason for delay in pursuing the CIA leak case.

National Review's Byron York sensibly asks: what are the next steps in the investigation into the intelligence community's leaking of classified information to the press, including the deeply sensitive detention arrangements for high-ranking al Qaeda captives (the so-called "black-site" prisons)? That disclosure profoundly harmed our nation's critical relationship with foreign intelligence services which have been assisting the war effort.

In connection with the internal CIA end of that probe, one intelligence officer, Mary O. McCarthy, has been terminated for unauthorized contacts with members of the media, including the Washington Post's Dana Priest. It was Priest who reported the black-sites story last year. Thus, it came as no surprise this weekend when several press accounts, including an Associated Press story published by the Post itself, identified McCarthy as a black-sites source.

McCarthy, however, has now flatly denied that this is the case, asserting that she did not even have access to such information. Today, the Post reports that at least one senior intelligence official familiar with the probe is supporting McCarthy's claims. Moreover, it is noteworthy that the CIA's public statements, while strongly suggestive of McCarthy's having leaked classified information, did not tie her directly to the black-sites disclosure.

Relying on the weekend's press reporting, which sourced law enforcement personnel in identifying McCarthy as a black-sites leaker but indicated that she was not the subject of a criminal investigation, I wrote an opinion piece Sunday asking why she had not been charged with a violation of the espionage act. It now looks like those reports may have been mistaken — or, at a minimum, premature.

If, as the CIA's public statements intimate, McCarthy has had several unauthorized contacts with the media — a pattern serious enough to have resulted in the extraordinary termination of a long-time CIA official who has held several key positions in the Agency — then it seems obvious that the Justice Department should be investigating her. But it is too soon to tell whether she should be charged with a crime. All leaking of classified information is inappropriate and may be cause for administrative discipline of the leaker, including dismissal. But not all such leaks are crimes, and whether McCarthy should be prosecuted will depend on what she has leaked. Ms. McCarthy may not deserve much of our sympathy, but she should not be tarred with something she didn't do.

Clearly, however, someone inside the intelligence community is responsible for the black-sites leak, and the ongoing investigation goes far beyond Ms. McCarthy.

As is now well known, during the investigation into the disclosure of Valerie Plame Wilson's apparently classified status as a CIA employee — which resulted in the indictment of one government official, I. Lewis ("Scooter") Libby, for allegedly misleading the investigation, but not for leaking classified information — independent counsel Patrick Fitzgerald used a methodical procedure. He first sought waivers of confidentiality from government officials who had spoken with the press, then used those waivers to compel journalists to provide information, and finally had one reporter, Judith Miller, jailed for contempt when she initially declined to comply with a grand jury subpoena for her testimony.

Should this investigative template be followed in the new, broader investigation of classified leaks by members of the intelligence community? It certainly should not, and here's hoping that it won't.

THREE CATEGORIES

There are three possibilities when prosecutors deal with journalists: Category A is the usual situation in which reporters are merely the repositories of hearsay information from their sources; Category B is the unusual situation in which reporters are direct witnesses of crimes but have no culpability themselves; and Category C is the most rare situation of all, in which reporters are theoretically complicit in criminal activity.

The Plame/Fitzgerald investigation falls squarely into Category B. By contrast, the probe of intelligence community leaking (not only regarding black-site prisons, but also the NSA's terrorist surveillance program and other leaks that have damaged the war effort) falls into Category C.

Discerning between these categories is central. The Supreme Court has held that journalists do not have a privilege to withhold information from investigations — they have the same presumptive obligation as all other citizens to provide relevant information to grand juries and courts if asked to do so. That rule makes sense as long as government does not abuse it. Yet, it is undeniably in tension with the special role of the media in a functioning constitutional democracy to keep the public adequately informed.

Thus, in our system, some deference is plainly due to the press. But how much? The answer to that important question depends on which category applies.In Category A, journalists get the maximum amount of deference. They should almost never be subpoenaed for information in this case, and internal Justice Department regulations, which are enforced rigorously, discourage the compulsion of information from them. The reason is obvious: government should not infringe on First Amendment interests simply to use the press as a substitute for agents doing their jobs.
In Category A, government agents should be able to do exactly what the reporter has done: investigate the case and speak to the people with first-hand knowledge. In fact, government agents theoretically are better positioned to do it because they, unlike reporters, can issue subpoenas (authorized by grand juries or trial courts). To be sure, in a matter of grave urgency, it is legally permissible to subpoena the reporters. But that should happen only if the matter is extremely important and all other avenues of information have been exhausted — a situation that is very rare indeed.

In Category B, the journalist is no different from the ordinary citizen who witnesses a crime: he or she has an obligation to provide testimony to the grand jury if called on to do so.

Now, it is a salutary practice — in deference to the aforementioned First Amendment implications — for prosecutors to exhaust other potential avenues of information before turning to journalists. This avoids unnecessary intrusion on the media's important function. It is the practice that was followed in the Plame investigation. But it is not a mandatory practice. Any person with direct evidence of a possible crime — i.e., anyone, including a journalist, who was a first-hand witness to the illegal transaction under investigation — may be questioned. Period.
Under federal law, the passage of classified information by a government official can be a crime. Any reporter to whom it is directly communicated is, therefore, in no different a position from a reporter who happens to be standing inside a bank when it gets robbed. The reporter is a witness to a crime and it is perfectly appropriate to compel his or her testimony.

CATEGORY C: REPORTER AS SUSPECT

Finally, in Category C, journalists are owed no deference at all. Here, they do not stand as incidental witnesses, or even merely critical witnesses. Here, they stand as potential defendants. As such, they should be treated like any other criminal suspects. Which is to say, they can be prosecuted for any crimes they have committed.

More to the point, it is perfectly appropriate in Category C for the government to use the specter of prosecution as leverage to obtain cooperation from a journalist for the higher public purpose of bringing to justice the more culpable targets of the investigation. Where intelligence community leaking is concerned, those more culpable targets are the government officials who, in violation of their solemn oaths, are leaking the government's secrets — alarmingly, in wartime. Those more culpable targets inflict massive damage on our country, but they may be totally insulated from prosecution unless the reporter cooperates. Here, in other words, the reporter has acted irresponsibly, perhaps criminally, and is exacerbating matters by shielding more serious criminal actors.

Category C is not a close call: the reporter should be pressed for information — whether by appeal to his or her patriotism, by subpoena, by the threat of prosecution, or by indictment. The Justice Department owes no apologies for such tactics, notwithstanding the inevitable editorial caterwauling. It is the Department's duty to protect the American people by pursuing the leakers who imperil them. And in Category C, there is no good reason to delay until all other avenues can be exhausted.

The black-sites leak belongs in Category C. Some may claim it belongs in Category B because it is not as clear that publication was a crime in the black-sites scenario as it is, by contrast, in the NSA situation. That, so the argument goes, is because the federal law that specifically proscribes the "publish[ing]" of classified information, Section 798 of Title 18, U.S. Code, is carefully limited to classified information about signals intelligence. The NSA terrorist surveillance program is a wartime signals intelligence effort. The black-site prisons situation is not.

That rationale, however, reads the law incompletely. Another provision of the espionage laws, Section 793(e), expressly targets persons who: (a) have "unauthorized possession" of national defense information, (b) have reason to believe such information could be used to the injury of the United States or the benefit of any foreign nation, and (c) willfully communicate that information to others not entitled to have it.

This crime would clearly apply to a situation in which a reporter was improperly given classified information critical to the war effort and published it despite the obvious potential damage to American interests and benefit to nations opposed to our interests and policies. Which is to say: It is tailor-made for the black-sites leak.

The Washington Post published Dana Priest's story on the black-site prisons back on November 2, 2005. It has thus been about six months since this egregious compromise of national secrets involving the acquisition of intelligence desperately needed to protect American lives — information from top al Qaeda detainees about the terror organization's ongoing plots. Still, the Post reported this weekend that no one at the newspaper has yet been interviewed about the leaks.

Templates aside, if Americans are wondering what in the world is going on here — and, more to the point, whether any attempt has been made to question Ms. Priest about her intelligence community source(s), and if not, why not — that's a very good question.

— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.