Cases of WikiLeaks and other leaks: Worth prosecuting?

Prosecutions of leaks of classified information are so difficult that other options may be more effective, the Justice Department suggests. The US is currently pursuing several leak cases, including one involving the website WikiLeaks.

Leaks of secret information have bedeviled US presidents for decades. But plugging them up? That’s hard.

In recent years the FBI has opened preliminary inquiries on hundreds of incidents of improper dissemination of classified information to the press. It has opened full investigations on only a small percentage of these cases, however.

And in instances where a suspect has been identified, prosecutions have proved difficult – so difficult, in fact, that the US might be better off just taking internal administrative action against leak suspects instead of trying to drag them into court.

Those are the conclusions of a newly disclosed Justice Department analysis of leak inquiries. The summary was published Monday on Secrecy News, the blog of the Federation of American Scientists Project on Government Secrecy.

Leak prosecutions have been big news lately, due to the recent detention of Army Spc. Bradley Manning in conjunction with the leak of a graphic video of an Apache gunship mistakenly shooting civilians in Baghdad to the website WikiLeaks. In addition, the Obama administration is pursuing several other high-profile leak cases.

The newly published analysis contains data that predate these cases. But it does show the general state of US government leak prosecutions in recent years.

Between 2005 and 2009, US government departments or other official agencies passed along to the FBI 183 referrals of suspected illegal disclosures of classified information. While these referrals often document real problems, in the sense that they are based on documented leaks, most of them don’t have enough information to allow the FBI to open a full-scale probe of the incident, according to the analysis, which is contained in a Department of Justice letter written in response to questions submitted by Sen. Sheldon Whitehouse (D) of Rhode Island.

The most typical flaw is an inability on the part of the referring agency to identify everyone in the government who had access to the information that was leaked. That’s the starting point of any leak investigation, and without it, it’s impossible for the FBI to proceed.

“Prosecution is often not pursued because the information was initially widely disseminated and, as a consequence, the leaker cannot be identified,” wrote the Justice Department in the analysis.

Thus, from the 183 referrals, the FBI opened only 26 official leak investigations. Agents were able to identify suspects in 14 of these investigations – just over half.

“Even when a suspect is identified ... prosecution is extremely rare,” said the Justice Department.

Why is that? First of all, for the same reason many referrals are dropped – many secrets are widely disseminated, making it hard to prove that one person had to be the leak. Second, it is very difficult to get any corroboration from journalists to whom the information was leaked.

Justice Department policies discourage issuing subpoenas to reporters. In the rare case when such a subpoena is issued, the information sought is not necessarily produced, notes the Justice letter. Reporters fight back, and many elect to go to jail rather than turn on their sources.

“In light of these limitations and the practical realities of leak investigations, the leaker often cannot be identified beyond a reasonable doubt, as is required for a successful prosecution,” said the Justice Department.

The FBI continues to urge victim agencies to bring leaks to its attention. But dealing with suspected leakers internally – through such actions as firing them – may often be the best solution, according to Justice.

“Because indictments in media leak cases are so difficult to obtain, administrative action may be more suitable and may provide a better deterrent to leaks of classified information,” concludes the Justice analysis.


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