Holding Leakers Accountable: Considering New Leaks Laws

By W. George
Tuesday, February 25, 2014, 9:00 AM

Those who leak classified information violate their contracts, the public’s trust, and the law. As for those who publish the leaked information - it’s “complicated,” according to FBI Director James Comey. He was responding recently to House intelligence committee chairman Mike Rogers’ question whether reporters are guilty of crimes in obtaining or publishing classified information. The exchange undoubtedly sent shivers down the spines of free speech advocates, but it was a good question as policymakers grapple with how to deal with massive public disclosures that don’t fit a traditional espionage label.

Finding leaks remedies has been an intractable problem that few care to tackle because of the difficulty in reconciling two important interests: The Nation’s security and the free speech principles that are part of our Nation’s persona. Leaks persist, however, and it is again time to consider measures, including legislation, that would more effectively help prevent and deter leaks by holding leakers and their enablers appropriately accountable.

There is no single, comprehensive statute that governs the handling of leaks, but instead a patchwork quilt of laws has enabled successful prosecutions of leakers. These include statutes that criminalize espionage, disclosures of communications intelligence, codes, identities of undercover intelligence officers and sources, and theft of Government property.  Espionage prosecutions, however, can face credibility issues when the leakers are not traditional spies acting at the direction of foreign countries---all spies are leakers; but not all leakers are spies. Whistleblowers also can arouse the sympathies of the media, the court of public opinion, and jurors who might wonder why the government is accusing such persons of espionage. This can be true even when disclosures have resulted in irreparable harm to U.S. intelligence capabilities or other national security interests. 

It is unarguable that leaks can benefit the public by opening up debate on information of public interest. This should not be the determining factor when individuals violate their obligations to protect classified information. It is a troubling notion that those who steal classified information, or those who publish it, can override the Government’s assertions that damage will result from disclosure of an undercover operation to counter a terrorist bombing attack, to take one recent example.

New legislation alone will not solve the leaks problem. Ongoing initiatives should continue to improve internal government security and classification practices, for example. A useful starting point in what should be a thoughtful look at legislative options would include a review of past efforts to view leaks of classified information to the media, rather than to foreign nations, as a violation of trust rather than espionage: Willful disclosure of classified information by persons entrusted with that information, to any persons not authorized to receive it, if the leaker has reason to believe that the information is classified. The leaker made a promise and broke it. No need to show intent to harm the U.S. or benefit a foreign country or organization. Espionage laws would continue to criminalize spying, and should clearly address spying for international terrorist organizations.

Whistleblower laws also warrant a review. Discussion of a leaks law framework could propose defenses for leakers who are stymied in their good faith efforts to follow lawful procedures, sanctions for retaliation, and options for penalizing pseudo-whistleblowers.

Proposals that raise free speech issues undoubtedly would be the most controversial and lively. As difficult as it is to prevent and deter leaks and, Snowden aside, to identify the sources, even more daunting are challenges involving those who report or publish classified information. Like the statute that protects undercover intelligence officers and agents, legislation could address disclosures by persons who engage in a “pattern of activities intended to disclose” protected information.

To address irresponsible publication of national security information, another option could allow civil actions against anyone who reveals classified information with a willful, gross, or reckless disregard of the likely damage, similar to a standard in defamation actions. Civil penalties with teeth could include reimbursements of the financial costs of relocating sources or replacing technology rendered ineffective by the leaks. The Government would have to show damage, and vigorous debate and careful study will be important to guard against chilling legitimate, independent investigative reporting unassisted by leakers.

As the WikiLeaks and Snowden leaks show, massive amounts of stolen data can be taken outside secure locations and pose a continuing threat of compromise. It will be important to explore legislation that will assist the government’s ability to retrieve damaging, classified information from the leakers, news media, and others who have unauthorized access.

Our nation values the public discussion of Government policies and operations, and attempts to legislate will face an uphill battle if the results are seen to chill free speech. Caution is both inevitable and appropriate when measuring constitutional safeguards, but it will be important not to be deterred by the enormity of the task.

W. George Jameson is an attorney and national security consultant who served for over 30 years at the CIA.  He co-founded the non-profit Council on Intelligence Issues, which educates on intelligence issues and provides legal resources for intelligence personnel.  He also is an adjunct staff member at the RAND Corporation, where he recently co-authored “Fixing Leaks: Assessing the Department of Defense’s Approach to Preventing and Deterring Unauthorized Disclosures.”