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Will Holder Prosecute the Leakers?

Will Holder Prosecute the Leakers?

By Jed Babbin - June 15, 2010

One of the mysteries of George W. Bush’s administration resulted from its too-apparent failure to investigate and prosecute the leaks of classified information most damaging to our national security.

Now the New York Times – the serial publisher of classified information going back at least to the “Pentagon Papers” case in 1971 -- would have us believe that the Obama administration is casting itself in the role of Inspector Javert to the leakers’ Jean Valjean.  The irony in the Obama administration’s apparent leak of that story to the Times should not be the source of amusement. Instead, the Times report – combined with the many apparently politically motivated actions actions of Eric Holder’s Justice Department toward the intelligence community – should result in a deep skepticism of the paper’s claim. 

During the George W. Bush presidency there was a long string of damaging leaks published in several newspapers and, in one case I was made aware of at the time, by three senators in public statements.  Each caused serious harm to national security, but none of them were pursued to indictment or trial.  Only poor I. Lewis “Scooter” Libby was prosecuted, and not for leaking the CIA employment of Valerie Plame Wilson but for lying to a grand jury about what he told which reporter about the affair.

 

Leaks of classified information can change the behavior of friend or foe or both, or deprive us of an advantage we have developed at enormous cost.  Some devalue advantages we have over our adversaries, others force friends (or clandestine friends) them to stop helping us in ways they cannot if the cooperation is public. 

The serious leaks began quickly after the 9-11 attacks.  The first was apparently inadvertent, when a Republican senator blurted out that the NSA was listening in on Usama bin Laden’s cell phone.  Which bin Laden promptly stopped using, changing to communication methods far harder to detect and locate.  That effect quickly became known, but instead of giving pause to other leakers, it opened a floodgate.

Damaging leaks seemed to follow one another so quickly, their impact became a tsunami.  They included the revelations of the National Security Agency’s “terrorist surveillance program,” the cooperation of the Belgian “SWIFT” consortium in tracing terrorist financing, the CIA secret prisons and a top-secret intelligence satellite program which three US senators spoke about publicly because they were upset about its cost. 

The senators, as I was told at the time by an intelligence community source, blew the cover on a “black” (i.e., top secret, sensitive compartmented information) satellite program.  As I reported on December 16, 2004 this leak – by Sens.  Dick Durbin (D-Il), Jay Rockefeller (D-WVa) and Ron Wyden (D-Ore) – caused the three senators to be the subject of a request to the Justice Department that they be the subject of a criminal investigation.

 

Which did nothing with the request.  And though Patrick Fitzgerald sent New York Times reporter Judith Miller to jail for three months to compel her to reveal her source on the Plame affair, the reporters who wrote the stories on the NSA terrorist surveillance program, the CIA secret prisons and the SWIFT program’s cooperation weren’t subjected to the compulsions Miller was.  

At one point, late in the Bush years, I asked a senior Justice Department official why. He shrugged, looked a bit sheepish, and told me that they were concerned about how the press would react.  The press, of course, had already reacted.  President Bush reportedly called New York Times publisher “Pinch” Sulzberger just before the paper published James Risen’s story about the NSA “warrantless wiretapping” program, asking that it not be published. Sulzberger turned him down.

The Times in a June 11 report, says “In 17 months in office, President Obama has already outdone every previous president in pursuing leak prosecutions.” It cites the charges against NSA employee Thomas Drake for mishandling classified information, the prosecution of an FBI translator for providing classified information to a blogger and the arrest of an Army intelligence analyst suspected of passing a classified video to the website Wikileaks.org.  (The administration is also reportedly pursuing Wikileaks founder Julian Assange, fearing an alleged planned leak of a massive number of classified State Department communications.)

 

The Times reports a subpoena to NYT reporter James Risen regarding the source of a part of his book, “State of War” which – along with his NYT story published the day the book was released – revealed the NSA “warrantless wiretap” program.  Curiously, however, the subpoena doesn’t seek the source of the NSA leak but deals, according to the Times, with “…a bungled attempt to disrupt Iran’s nuclear program” also described in the book.

If the NYT report is right, there is a selectivity in the Obama Justice Department’s investigation that will compound the errors made by the Bush Justice Department.  Why seek the source of the Iran leak and not that of the NSA program leak, arguably the most damaging in recent history?  And if the Obama Justice Department wants to prosecute the leakers, why not pursue cases on the SWIFT, CIA secret prison and other leaks which caused significant damage?

How far will the Justice Department pursue the leakers?  Will James Risen be jailed, as Judith Miller was, for refusing to reveal his source? Will the most damaging leaks – the CIA secret prisons, the NSA terrorist surveillance program, the SWIFT program and the black satellites – even be pursued?

Republicans have been highly critical of the decisions Attorney General Holder has made – apparently on political grounds – on issues such as trying Khalid Sheik Mohammed in civilian court and censoring the information that the law requires to flow between congressional oversight committees and the intelligence agencies.  

There is little reason to believe that political considerations won’t decide which leaks are pursued, and how determinedly the Justice Department will pursue them.  Holder’s already dismal relationship with the intelligence community isn’t likely to be improved.

Jed Babbin served as a deputy undersecretary of defense under George H.W. Bush.

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