The future of government leakers

From the Summer 2011 issue of The News Media & The Law, page 4.

The Obama White House has been aggressive in fighting the leaking of classified information, with five known prosecutions against alleged leakers.

But the government has recently experienced setbacks in the high-profile prosecutions of Thomas Drake and Jeffrey Sterling.

Drake, a former National Security Agency employee, is suspected of giving classified information to Siobhan Gorman, then a reporter at The Baltimore Sun, who wrote a series of articles about problems at the agency. However, he was not charged for leaking information to her but instead for taking classified materials home.

Federal prosecutors dropped the 10 felony charges against Drake amid concerns about the disclosure of classified information during the trial. Instead, the prosecution and Drake agreed to a last-minute deal under which Drake pleaded guilty to a misdemeanor charge of “exceeding authorized use of a computer.”

The case against Sterling is ongoing, but a U.S. District Court judge ruled in late July that a New York Times reporter will not have to reveal a confidential source when he testifies at Sterling’s trial. Sterling is a former CIA employee indicted on 10 counts related to leaking classified information to an unnamed reporter identifiable in court documents as James Risen, who won a Pulitzer Prize in 2006 for a series of articles exposing the National Security Agency’s warrantless wiretap program.

Prosecutors issued a trial subpoena for Risen in May, but the subpoena was quashed in part in July, allowing Risen to keep his source secret and only testify on information that is already known and published.

Risen’s 2006 book “State of War” discusses an alleged botched CIA program aimed at injuring Iran’s nuclear program. Prosecutors allege Sterling provided top-secret information about the program to Risen.

Sterling worked for the CIA from May 1993 until he was fired in January 2002. Prosecutors allege Sterling, who is black, leaked information to Risen because Sterling had a grudge against the CIA and believed the agency discriminated against him because of his race.

Meanwhile, controversial online document drop box WikiLeaks has faded from the headlines since its November 2010 release of U.S. State Department cables. But debate continues about whether the United States will pursue additional prosecutions in relation to the website’s leaks and if Congress will amend the Espionage Act.

Two bills that would amend the Espionage Act, the Securing Human Intelligence and Enforcing Lawful Dissemination Act and the Espionage Statutes Modernization Act, have been introduced in the U.S. Senate this year.

The first bill would make it a crime to publish classified information concerning the human intelligence activities of the United States or any foreign government, or concerning the identity of a classified source or informant of an element of the intelligence community of the United States.

The second would make it a crime for anyone with unauthorized possession of any classified information to willfully communicate the information to someone not entitled to receive it.

U.S. Army Pvt. Bradley Manning faces more than 20 charges under the Uniform Code of Military Justice related to allegations that he is the source of classified information released by WikiLeaks.

Despite the controversy surrounding WikiLeaks, the success it has had in procuring clandestine materials has led mainstream news outlets to consider launching their own drop box websites. Two outlets, The Wall Street Journal and the Al Jazeera television network, launched drop boxes earlier this year.

The drop boxes’ early months have not been smooth. The terms of use for both services have been criticized for reserving the right to turn over information provided through the drop boxes to law enforcement and other third parties, and for being vague about which types of information could be turned over to others.

The Journal responded by releasing a statement in which it said the terms of use are for “extraordinary” circumstances, while Al Jazeera recently suspended its drop box in order to “engineer improvements to both make the service more secure and user-friendly.”

Meantime, the CIA and National Security Agency continue to completely or partially deny many of the Freedom of Information Act requests they receive.