Monday, May 01, 2006

Leakscape

By Melissa Boyle Mahle

In the past week, numerous individuals have commented publicly and privately on the leak investigation and firing of CIA official Mary McCarthy. The political right has weighed in accusing the CIA once more of playing politics. The political left and the media have stepped forward to defend the "need to leak" if not the “right to leak”. Ms. McCarthy, through her lawyer, has denied being the source of the leak on secret CIA prisons. If it wasn’t such a serious topic, I’d be on the floor laughing at Washington once again gone amok.

But first of all, I want to offer an apology to Ms. McCarthy. In my blog last week, I grappled with the impossible idea of a CIA official willfully leaking to destroy an on-going operation. I had a hard time getting my mind around the idea, like so many other former insiders. Ms. McCarthy says she didn’t do it and the CIA has now clarified its statement not directly linking Ms. McCarthy to the Dana Priest Washington Post article on secret prisons. The operative issue is contacts with the press, not leaking.

While I must say this is all still very murky, a different picture emerges of a CIA in a targeted security program of identifying officers with unauthorized contacts with the press. This is a much larger program and indeed it fits with the statements of D/CIA Goss on his intention to stop leaks. All leaks. This includes statements critical of his leadership to books and articles on the inner workings at the CIA or on foreign and intelligence policy issues in general.

The polygraph is a very blunt instrument and not accurate. If an officer registers any discomfort on a question, the polygrapher will hone in on the issue. After being asked the same question 100 times, the poor person on the box is feeling so beat up that the emotional reaction gets stronger and stronger as a function of the test, not the issue. Once there is suspicion, it is impossible to make it go away. The CIA just does not accept exculpatory information, even if it comes from a CIA counterintelligence investigation. Suspicion equals guilt. Putting this in the context of Ms. McCarthy, it is easy to imagine that an admission of contacts with the press becomes a presumption of leaks to the press. How do you prove a negative?

Was Ms. McCarthy’s firing intended to be an example for the work force? A signal that the CIA is serious about stopping all leaks? Yes. Will it make the CIA even more insular? Yes. Will it help or harm morale? It depends. They are against leaks of classified information. The workforce does not think that this kind of leaking is a serious problem. Views on internal management, politicization, dissent and intelligence policy—many don’t consider these as classified and therefore not leaks. Goss, however, has a different view. If officers cannot find internal ways to address issues and they cannot use external levers for change, they will simply vote with their feet—which they are already doing.

The press has been full of articles and opinion pieces of leaking, the CIA and security in general. Below is a sampling of the more interesting ones.

Washington Post
Polygraph Results Often in Question
CIA, FBI Defend Test's Use in Probes
By Dan Eggen and Shankar Vedantam
Monday, May 1, 2006; A01

The CIA, the FBI and other federal agencies are using polygraph machines more than ever to screen applicants and hunt for lawbreakers, even as scientists have become more certain that the equipment is ineffective in accurately detecting when people are lying.

Instead, many experts say, the real utility of the polygraph machine, or "lie detector," is that many of the tens of thousands of people who are subjected to it each year believe that it works -- and thus will frequently admit to things they might not otherwise acknowledge during an interview or interrogation.

Many researchers and defense attorneys say the technology is prone to a high number of false results that have stalled or derailed hundreds of careers and have prevented many qualified applicants from joining the fight against terrorism. At the FBI, for example, about 25 percent of applicants fail a polygraph exam each year, according to the bureau's security director.

The polygraph has emerged as a pivotal tool in the CIA's aggressive effort to identify suspected leakers after embarrassing disclosures about government anti-terrorism tactics. The agency fired a veteran officer, Mary O. McCarthy, on April 20, alleging that she had shared classified information and operational details with The Washington Post and other news organizations, a charge her lawyer disputes.

CIA officials have said that McCarthy failed more than one polygraph examination administered by the CIA, but the details surrounding those interviews remain unclear. Dozens of senior-level CIA officials have been subjected to polygraph tests as part of the inquiry, which is aimed at identifying employees who may have talked to reporters about classified programs, including providing information about the agency's network of secret prisons for terrorism suspects.

"The reason an officer at CIA was terminated was for having unauthorized contact with the media and the improper release of classified information," said Paul Gimigliano, a CIA spokesman. "Don't think in terms of a failure of a polygraph being the reason for termination -- the polygraph is one tool in an investigative process."

In the popular mind, fueled by Hollywood representations, polygraphs are lie-detection machines that can peer inside people's heads to determine whether they are telling the truth.

The scientific reality is far different: The machines measure various physiological changes, including in blood pressure and heart rate, to determine when subjects are getting anxious, based on the idea that deception involves an element of anxiety. But because an emotion such as anxiety can be triggered by many factors other than lying, experts worry that the tests can overlook smooth-talking liars while pointing a finger at innocent people who just happen to be rattled.

In settings in which large numbers of employees are screened to determine whether they are spies, the polygraph produces results that are extremely problematic, according to a comprehensive 2002 review by a federal panel of distinguished scientists. The study found that if polygraphs were administered to a group of 10,000 people that included 10 spies, nearly 1,600 innocent people would fail the test -- and two of the spies would pass.

"Its accuracy in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in federal agencies," the panel concluded.

Polygraph test results are also generally inadmissible in federal courts and in most state courts because of doubts about their reliability. Statements or admissions made by test subjects during a polygraph session, however, can often be used by prosecutors at trial, according to legal experts.

But even critics of the polygraph concede that it can help managers learn things about employees that would otherwise remain hidden. That aspect of polygraph testing lies at the heart of its continuing appeal, said Alan Zelicoff, a former scientist at Sandia National Laboratories who quit because he believed that polygraphs are unethical.

Although polygraph tests involving national security are supposed to be about a handful of questions involving espionage, Zelicoff said the tests take hours: "In each and every test, what happens is after question two or three the questioner will pause and very deliberately take a long hard look at the chart and take a deep breath and sigh and say, 'You did really well on question one, but on the second question, about whether you released classified information, I am getting a strange reading. Tell you what -- I am going to turn the machine off and I am going to ask whether there is something you want to get off your chest.' "

"That is what the polygraph is about," said Zelicoff, who has testimony from several employees who are angry about the tests. "It is about an excuse to conduct a wide-ranging inquisition."

The subjective opinions of polygraph examiners play a huge role in whether people are said to pass or fail, said William Iacono, a psychologist at the University of Minnesota who has extensively studied the technique. As evidence, Iacono said that polygraph tests rarely find problems among senior staff members at organizations, even as 30 to 40 percent of applicants for entry-level positions fail.

"The director of the CIA just took a test," said Iacono. "How would you like to be the examiner who gave him a test and say he failed? What kind of a career would you have?"

The president of the American Polygraph Association, T.V. O'Malley, said polygraph technology is held to an unfair standard in many cases, and he compared it to mammograms and other medical screening procedures that are imperfect but valuable in detecting problems. He also acknowledged that some of the polygraph's value is simply in prompting people to tell the truth.

"It's kind of like confessing . . . to a priest: You feel a little better by getting rid of your baggage," O'Malley said. "The same thing often happens with a polygraph examination."

Charles S. Phalen Jr., the FBI's assistant director for security, said the polygraph is a vital component of the bureau's security program.

"This is the most effective collection tool that we have in our arsenal of security tools to identify disqualifying behavior and disqualifying activities," Phalen said. "I will never sit here and say this is a perfect tool because it's not. . . . In and of itself it won't produce the truth, but it's a way at getting at the truth."

The ubiquity of polygraph testing in the federal government is due in large part to spy scandals that rocked the government over the past dozen years, including those involving Aldrich Ames at the CIA and Robert P. Hanssen at the FBI. Ames was allowed to continue working despite questionable polygraph results, whereas Hanssen was never given a lie-detector exam during his long FBI career.

Previous efforts to implement wide-scale testing were met with fierce opposition not only from rank-and-file employees but also from senior government officials. In 1985, President Ronald Reagan scaled back an order requiring thousands of government employees to submit to polygraphs after Secretary of State George P. Shultz threatened to resign if ordered to take one.

As part of changes implemented after Hanssen's arrest in 2001, the FBI now conducts about 8,000 polygraph tests each year, most of which involve current employees, applicants and contractors. All applicants and new employees undergo a polygraph at the FBI, and nearly every employee -- including the director -- is subject to a new test every five years, officials said.

The CIA enacted broader testing policies after Ames's unmasking. At the Department of Energy, which implemented changes as a result of the Wen Ho Lee case, about 20,000 employees are currently eligible for mandatory polygraph screening tests. (Lee, a former nuclear weapons scientist, was held by the government for purportedly smuggling weapon-design secrets to China; all but one charge was dropped.)

The Department of Energy is considering scaling back its program to focus on 4,500 employees with access to the most sensitive information, in large part because of the 2002 analysis by the federal panel, according to a congressional report released last week.

Many scientists who criticize polygraphs as a screening tool say the machines can be effective when used as part of a "guilty-knowledge test." In a bank robbery investigation, for example, suspects could be quizzed in multiple-choice tests on whether they knew if the weapon used was a gun or a knife, whether the money taken was $10, $1,000 or $10,000.

Focused questions that test whether people have memory of an event yield far more reliable results than open-ended screening tests that rely on emotions that can be triggered by a wide range of factors, said Iacono, who added that the federal government has resolutely refused to use the guilty-knowledge test. Officials have declined to describe the kind of tests McCarthy underwent at the CIA.

Iacono said conventional polygraph tests have little scientific validity but allow examiners to say, "I am getting the sense you are holding something back; is there something you want to tell me?"

"When people hear that, they admit things it would be difficult to get in any other way," he said. "People will confess to crimes or make admissions about themselves or other people. They may reveal suspicions about a co-worker or explain they did something they should not have done. The government loves that."

Researcher Julie Tate contributed to this report.


New York Times
There Are Leaks. And Then There Are Leaks.
By SCOTT SHANE
April 30, 2006

WASHINGTON

AN intelligence leaker is a hero, risking career and more to reveal warrantless eavesdropping, interrogations bordering on torture, prisons out of reach of American law. Or the leaker is a villain, whose treachery endangers the lives of American operatives, exposes intelligence methods and scares off foreign agents.

Or a little bit of both.

In fact, American intelligence leaks have created divisions since the Revolutionary War, when the pamphleteer Thomas Paine publicized documents containing a state secret: that the United States received covert aid from France before it openly became an ally. Paine was forced to resign as secretary of a Congressional committee in 1779.

America's mixed feelings on leaks have rarely been on such striking display as they were this month. Three days after The Washington Post and The New York Times won Pulitzer Prizes for articles based on classified intelligence, the Central Intelligence Agency fired a senior official, Mary O. McCarthy, for unauthorized disclosure of secrets to the press. And last week, Karl Rove, President Bush's political adviser, was back before a grand jury investigating whether administration officials had leaked a covert C.I.A. official's identity.

Without leaks, says Anthony A. Lapham, a former C.I.A. general counsel, there might never have been public debate over some measures used by intelligence agencies to fight terrorism. He thinks the debate may be worth whatever damage the leaks have done. But he cannot bring himself to approve of the leakers.

"There's a premise that it's O.K. for someone to leak because they're serving a higher purpose, a higher loyalty," he said. "Well, the next thing you know, you have a whole building full of people with a higher loyalty, each to a different principle. And pretty soon you don't have a functioning intelligence agency."

In the last three decades, there have been several other episodes in which an intelligence leak generated a national debate over the benefits and harm of such disclosures.

In 1974, for example, Seymour Hersh, then a reporter for The New York Times, chronicled the details of what government sources had leaked to him: a 690-page compilation of agency break-ins, wiretapping and reading of mail, plus files on 10,000 Americans.

Mr. Hersh began his Dec. 22, 1974, article: "The Central Intelligence Agency, directly violating its charter, conducted a massive, illegal domestic intelligence operation during the Nixon Administration against the antiwar movement and other dissident groups in the United States, according to well-placed government sources."

The article prompted a presidential commission and two Congressional inquiries, leading to new laws governing the spy agencies. Mr. Hersh, now with The New Yorker, declined to comment on his reporting or on leaks. "I never talk about sources," he said.

But Loch K. Johnson, an intelligence expert at the University of Georgia who served as a staff member on the Senate's Church Committee in 1975, did. "It's a beautiful example of how the press is really the most important overseer of intelligence in this country," Mr. Johnson said.

Then there was the case of Philip Agee, a C.I.A. officer from 1957 to 1969, serving mostly in Latin America. Mr. Agee gradually became not just a critic, but an avowed enemy of the agency and its mission. In a series of articles and books, he published the names of undercover C.I.A. officers and their agents. His books named more than 4,000 alleged C.I.A. operatives. "Millions of people all over the world had been killed or at least had had their lives destroyed by the C.I.A. and the institutions it supports," Mr. Agee told a Playboy interviewer in 1975. "I couldn't just sit by and do nothing."

But Mr. Agee's actions were widely condemned as leaking for the purpose of destruction, not reform; he was a leading figure in a practice that became a cottage industry for some radical publications in the 1970's. Most notoriously, a magazine called CounterSpy identified Richard Welch as the C.I.A. station chief in Athens and 18 months later, he was assassinated there. Mr. Agee has denied any responsibility for the death.

The work of Mr. Agee, who in recent years has run a travel agency in Cuba, inspired its own reform: the Intelligence Identities Act of 1982, which banned the disclosure of the names of undercover officers. One of the few investigations conducted under the law is the one in which Mr. Rove is now involved.

While liberals have generally been more inclined to suspicion of intelligence agencies, leaks have also come from conservatives. David S. Sullivan, for example, was forced to resign as an agency analyst in 1978 after he gave classified documents on strategic arms limitation talks with the Soviet Union to Richard Perle, then an aide to Senator Henry M. Jackson. Like Mr. Jackson, Mr. Sullivan was a hawk who believed, as he argued in a 1978 article, that the Soviets used arms talks as a "smokescreen" to hide their nuclear superiority.

Mr. Perle had a security clearance, but the leak to him was unauthorized.

Stansfield Turner, then director of central intelligence, later told a reporter that Mr. Sullivan had "jeopardized important secrets for our country." "He quit 30 seconds before I fired him," Mr. Turner said. Mr. Sullivan's conservative admirers disagreed, and he was hired as a Senate staffer.

A leaker does not have to work for an intelligence agency to face discipline. In 1996, the C.I.A. forced Richard A. Nuccio, a State Department official, out of his job by stripping him of his security clearance.

Mr. Nuccio had found evidence that a Guatemalan Army officer and C.I.A. informant, Col. Julio Roberto Alpirez, might have played a role in the death of Efraín Bamaca, a Guatemalan guerrilla leader married to an American, Jennifer Harbury.

Mr. Nuccio gave the information to Senator Robert G. Torricelli , Democract of New Jersey, who quickly made it public. The C.I.A. director, John Deutch , fired two agency officials for their roles in the Guatemala affair. But he upheld a decision to revoke Mr. Nuccio's clearance.

Mr. Deutch also began to require special approval for the use of unsavory characters as agency informants — a policy suspended after the Sept. 11, 2001, attacks, when officers argued that only terrorists would know of plans for the next attack.

The change in policy was immediately leaked to the press.


USA Today Editorial
All leaks aren't equal; it's the meaning that matters
Posted 4/27/2006 6:35 PM ET

For those not paying close daily attention, here's a catch-up on the Bush administration's hunt to uncover people who leak information it wants hidden:

•Wednesday, President Bush's closest political ally, Deputy Chief of Staff Karl Rove, was called for the fifth time before a grand jury exploring the leak of a CIA operative's name. Vice President Cheney's former chief of staff is already under indictment as part of this probe; he says Bush himself authorized his disclosures.

•Last week, in an unrelated incident, the CIA very publicly fired a high-ranking CIA officer for unspecified leaks — which she denies.

•Meanwhile, hunts continue to discover who provided information to The Washington Post and The New York Times for two stories that embarrassed the administration. One disclosed that the CIA had been operating a covert prison system for gloves-off interrogation of terrorism suspects, possibly violating U.S. and international laws. The other revealed the government was eavesdropping without court warrants on telephone conversations of thousands of U.S. residents.

Are these, as the administration claims, outrageous leaks that jeopardize national security? Or are they attempts by honest people to expose abuse of power?

The vast majority of Washington leaks are neither. They usually have nothing to do with national security, and they come from a politician, bureaucrat or lobbyist trying to manipulate the news media into peddling a selective version of reality on a no-name basis.

But occasionally, a leak is something more.

Coincidentally, a memoir arrived this week from Watergate's "Deep Throat." It reminds us that some leaks are leaks of conscience, from public-spirited individuals trying to blow the whistle on government practices at odds with American ideals.

W. Mark Felt, then second-in-command at the FBI, writes: "From the start, it was clear that senior administration officials were up to their necks in this mess, and that they would stop at nothing to sabotage our investigation." Events proved how right he was.

Felt is one of many. Defense analyst Daniel Ellsberg leaked the Pentagon papers in 1971, after he couldn't get anyone in the administration or Congress to take seriously the implications of the detailed history of U.S. involvement in Vietnam that he had compiled.

More recently, a still-unidentified person leaked the photos of prisoner abuse at Iraq's Abu Ghraib, sensing that the only way to stop such practices was to appeal to the sensibilities of the public.

Harmful to U.S. interests? Definitely. Essential to protect U.S. values? No doubt. The same dichotomy applies in the secret-prison and wiretapping stories.

Nor is the leak of conscience limited to government. Embarrassed employees of the tobacco industry exposed its coverup aimed at denying the deadliness of their product.

That is not to say that employees anywhere should have free rein to say anything. At the CIA, for instance, employees are generally prohibited from talking to the news media or writing about their experiences. Even in more normal circumstances, confidentiality is essential to conducting business.

But as the leak probes continue, it's important to maintain a distinction between those who leak to help themselves and those who leak, at personal risk, to let the public know its leaders are flouting law or abusing power.

People can decide whether the programs and policies exposed are noble or shameful — just as they were able to draw conclusions about Watergate, Vietnam, Abu Ghraib and the tobacco industry. And despite the cries of those who would operate in secret, isn't that how democracy is supposed to work?


Wall Street Journal COMMENTARY
Leak Soup
By VICTORIA TOENSING
April 29, 2006; Page A8

No, there's not a recent deluge of leaks of classified information. The numbers are consistent with those in the past couple of decades. What is different today is that the kid gloves are off regarding the government's treatment of reporters. Thanks to the clamoring by editorial pages of many major newspapers -- which resulted in Special Counsel Patrick Fitzgerald investigating the publishing of CIA employee Valerie Plame's name -- case law makes it clear that journalists can be hauled before the grand jury and forced to cough up their sources, or face Miller time in jail.

Editorial writers professed to be shocked and appalled by the leaking that led to columnist Bob Novak publishing Ms. Plame's name (in the context that perhaps nepotism was involved in the CIA sending her husband on a mission for which he was unqualified). The Chicago Tribune ranted that "there is a burden on the Justice Department and the White House to prove that they will pursue this aggressively and honestly. . . . If someone in leaked classified information . . . boot him out and let the prosecutors deal with him." "The leakers should be prosecuted," railed the Dallas Morning News, joyful that the CIA asked the Justice Department to investigate. The Los Angeles Times echoed that sentiment.

The Providence Journal declared that if people at the White House leaked, "heads should roll" and called Bob Novak's reporting "despicable." The most legally unsophisticated response was from the Atlanta Journal-Constitution, characterizing the charges as "perilously close to treason." The only debate for the media in the fall of 2003 was whether the Justice Department or a special counsel should investigate the matter.

John Ashcroft's Justice Department bowed to the pressure and appointed Mr. Fitzgerald, a prosecutor who pursued alleged leakers with the same vigor, legal tools and blinders he had used against terrorists. Without ever establishing an underlying crime, he managed to tie in knots numerous media giants, including Time magazine and the New York Times. Time's Matthew Cooper agreed to testify just before the jail cell clanked shut, but the Times's Judith Miller spent 85 days in the clink. In the process, Mr. Fitzgerald firmly established that when the government pursues a leak of merely alleged classified information, the reporter loses.

Now the press wants to backpedal on leak investigations. Let's give them the benefit of the doubt and say it is only a coincidence that their initial ardor for a leak investigation -- when a conservative columnist "exposed" a spouse of a media darling because he criticized the Bush administration -- cooled once the New York Times and the Washington Post published stories "exposing" a National Security Agency surveillance program and purported secret prisons outside the United States.

Today the debate is about what constitutes a "good" or "bad" leak. And it's the White House's fault that classified information is leaked. According to Washington Post columnist David Broder, only when the administration is ready "to explain itself . . . will there be fewer Mary McCarthys contemplating the costs -- and burdens -- of leaking to the press." Sympathy is being elicited as the press characterizes her termination as "not fair" because, by contrast, the reporter got a Pulitzer for publishing the same information she had leaked. One MSNBC anchor even asked whether she should be described as a "sacrificial lamb." So much for "booting out" the leaker.

Doesn't the press know that if Ms. McCarthy, or any other government employee, is concerned about conduct involving classified information, there is a federal whistleblower statute that permits her to report it to either the agency's inspector general or Congress? The decision to prosecute leaks of classified information cannot be distorted through a moralistic prism of whether the leaks are "right" or "wrong." To do so ignores the damage done in the same way as excusing a violent terrorist attack because those who maimed and killed innocent civilians did so for a "good reason."

The government must decide whether to prosecute leaks by evaluating the following factors: the gravity of harm to national security because of the information compromised, whether there is a law prohibiting the disclosure of that information, and whether a prosecution would further harm national security by disclosing even more classified information. The factor that used to be a deterrent to a criminal leak investigation when I worked for the Senate Intelligence Committee and the Justice Department -- whether to subpoena a journalist -- is no longer that much of a hindrance.

During my tenure in government a leak investigation might begin, but everyone knew that when it got down to the nitty-gritty of subpoenaing the reporter the investigation would grind to a halt. By that time, whoever had called for the investigation, usually a member of Congress (but never the press), had moved on to other matters. And the Justice Department would get credit for at least having gone through the motions.

When my husband and law partner, Joseph diGenova, was independent counsel for the leak of information about President Clinton's passport, he decided not to subpoena the journalists who had published the information after he contacted them and they said they would refuse to name their sources. He made the decision by weighing the seriousness of an actual crime -- a Privacy Act violation -- against possibly sending reporters to jail. Concern for the reporters prevailed.

In Mr. Fitzgerald's investigation, he has yet to provide any evidence there was an actual crime committed in the course of providing Ms. Plame's name to the press. And yet he still sent a journalist to jail. By so doing, he has shifted the presumption of whether to subpoena journalists. If the media want to know whom to blame for the spate in serious investigations of their reporting classified information, they should look in the mirror.

Ms. Toensing, a Washington lawyer, is a former chief counsel for the Senate Intelligence Committee and former deputy assistant attorney general in the Reagan administration.


LA Times Commentary
Read the news, go to jail
Most Americans possess classified information, whether they know it or not.
By David Wise
April 30, 2006

Unencumbered by a 1st Amendment, Britain for almost 100 years has had an Official Secrets Act to prevent leaks to the media and to prosecute offenders, including journalists.

Some Bush administration officials and members of Congress are casting a longing eye at the British law. If only the United States had a similar law, their reasoning goes, the reporters who revealed CIA-run prisons in Eastern Europe and the National Security Agency's warrantless wiretapping of terrorism suspects would be prosecuted instead of receiving Pulitzer Prizes.

The Constitution remains a barrier to those who would restrict the flow of information to the media — and thus to the public. But administration policies are gradually chipping away at its protections. The nation is in danger of having an Official Secrets Act not through passage of a law — although that is still a possibility — but through incremental steps.

The evidence is mounting:

• Judith Miller, as a reporter for the New York Times, spent 85 days in jail after refusing to name a confidential source in the investigation by Special Prosecutor Patrick J. Fitzgerald into the leak of the name of CIA officer Valerie Plame. Miller and half a dozen other reporters have been questioned by the prosecutor.

• Two former staff members of the American Israel Public Affairs Committee, or AIPAC, a pro-Israel lobby, are on trial in federal court on charges of conspiring to violate espionage statutes by obtaining defense information from a Pentagon official. Both lobbyists are civilians, and the government does not claim they received any documents, classified or otherwise.

• The National Archives and Records Administration has been embarrassed by the revelation that at least 55,000 documents formerly available to researchers have been withdrawn and reclassified under secret agreements with the military and the CIA. The deals were so secretive that the documents simply disappeared from the shelves. Historian Matthew Aid, who discovered the reclassification, pointed out that because he possesses some of the documents, he might be in violation of the Espionage Act. Allen Weinstein, who heads the National Archives, has halted the documents' reclassification.

• The FBI is seeking access to the papers of the late muckraking columnist Jack Anderson in order to seize any classified documents in his files. Anderson broke many stories the government tried to keep secret. His family, citing the 1st Amendment, has refused the agency's request. It is unclear how far the FBI plans to push the matter, or whether the government will next try to examine the files of other journalists, dead or alive.

• Porter J. Goss, director of the CIA, has testified that "it is my aim and it is my hope" that reporters who receive leaks on intelligence subjects are hauled before a grand jury and forced "to reveal who is leaking this information." The CIA dismissed Mary O. McCarthy, a senior official, for allegedly having unauthorized contacts with the media and disclosing classified information to reporters. The agency let stand the impression that she had leaked the story of the CIA secret prisons for terrorists in Eastern Europe to Dana Priest of the Washington Post, who won a Pulitzer Prize for her account. McCarthy's attorney says she was not the source of the story and has never leaked classified information.

• Congress is considering legislation that would enable the intelligence agencies to revoke the pensions of employees who make unauthorized disclosures. The measure also would allow the CIA and NSA to arrest suspicious people outside their gates without a warrant.

Although the indictment of the two lobbyists for the American Israel Public Affairs Committee is replete with references to "classified information," the espionage laws, with one narrow exception, refer only to "information relating to the national defense." The spy laws were passed in 1917 during World War I. A 1951 presidential executive order created the current system of classifying documents.

There is no law specifically prohibiting leaks, so the government has used the espionage laws to try to combat the practice. President Clinton vetoed anti-leak legislation passed in 2000 that would have made it a crime for a government official to disclose classified information.

To criminalize leaks of government information simply because the information is marked "classified" is absurd on its face. In 2004, the most recent year for which figures are available, the government classified 15,294,087 documents. It is hardly likely that the government has that many real secrets to withhold from its citizens.

Unnecessarily classifying documents is a fact of life in Washington. Many bureaucrats know that unless they stamp a document "secret" or "top secret," their superiors may not even bother to read it. One government agency classified the fact that water does not flow uphill. During World War II, the Army labeled the bow and arrow as a secret, calling it a "silent flashless weapon."

The government's theory in the lobbyists' prosecution could, if it stands, change the nature of how news is gathered in Washington and how lobbyists and academics interact with the government.

"What makes the AIPAC case so alarming," said Steven Aftergood, director of the Project on Government Secrecy of the Federation of American Scientists, "is the defendants are not being charged with being agents of a foreign power but with receiving classified information without authorization. Most Americans who read the newspaper are also in possession of classified information, whether they know it or not. The scope of the charges is incredibly broad."

Officials in Washington talk to reporters every day about matters that may, in some government file cabinet, in some agency, somewhere, be stamped with a secrecy classification. How would a journalist be expected to know that he or she was a "recipient" of classified information, and in theory subject to prosecution under a law that was meant to catch spies?

The original British Official Secrets Act, passed in 1911, allowed the crown to prosecute anyone, even a journalist, who published a railroad timetable. The act was made less draconian in 1989, but it still carries tough provisions and can apply to journalists.

Fleet Street also is guided by Defense Advisory Notices that warn the media against publishing data about military operations, nuclear or other weapons, codes, "sensitive installations" or the intelligence services.

At least until recently, the U.S. government applied the espionage laws to officials who leaked, not to the recipients. "Otherwise," Aftergood said, "Bob Woodward would not be a wealthy, bestselling author. He would be serving a life sentence."

DAVID WISE writes frequently about intelligence and secrecy. He is the author of "Spy: The Inside Story of How the FBI's Robert Hanssen Betrayed America."


Washington Post
Little Is Clear in Laws on Leaks
Statutes Regarding Classified Data Called Hard to Prosecute
By Dan Eggen
Friday, April 28, 2006; A07

The firing of a veteran CIA officer for unauthorized contacts with the press has focused attention on the patchwork of federal laws that govern disclosures of classified information, which are written broadly but are difficult to enforce and have historically been used sparingly in cases involving journalists.

Numerous experts on national security law said Mary O. McCarthy, whom the CIA fired 10 days before her retirement for allegedly having undisclosed contacts with reporters, could conceivably be prosecuted under a number of statutes, including those governing espionage, disclosures of classified information and even theft of government property.

Yet those experts warned that any such prosecution is fraught with obstacles, including the difficulty in showing that disclosures were made with knowledge that they would harm national security or were intended to benefit a foreign power.

In addition, McCarthy's attorney, Ty Cobb, said on Monday that she did not leak classified information to reporters, disputing a key accusation in a CIA statement issued last week. Cobb also said McCarthy did not disclose the existence of secret CIA-run prisons in Eastern Europe to a Washington Post reporter, which has been a primary focus of an internal leak investigation ordered by CIA Director Porter J. Goss.

"From the criminal side, there are a lot of difficulties with respect to this case," said Mark S. Zaid, a Washington lawyer who has represented many former employees in disputes with the CIA and other intelligence agencies. "I wouldn't be surprised if they decline prosecution, because it might create more problems than it's worth."

The case comes amid renewed debate in Congress over whether to increase penalties for leaking or to consider rewriting espionage and classified information laws. This week, the House approved a bill requiring the director of national intelligence to study yanking pensions for those caught revealing secrets.

Unlike in similar cases, such as the New York Times's disclosure of a warrantless eavesdropping program run by the National Security Agency, the CIA has not formally asked the Justice Department or the FBI to open a criminal probe into The Post's article on prisons, law enforcement officials said this week. Reporters at The Post and the Times were awarded Pulitzer Prizes this month for those articles.

In the latter half of the 20th century, including the Cold War years, the government prosecuted only one non-espionage leak case in federal courts. But the Justice Department has more recently signaled its willingness to test the boundaries of espionage law in a case involving two pro-Israel lobbyists, and the CIA and other intelligence agencies have launched aggressive internal probes to detect and punish leakers.

No statute in the U.S. criminal code covers all unauthorized disclosures of classified information, and Congress has debated whether an overarching law should be enacted. President Bill Clinton vetoed one such attempt shortly before he left office, and the Justice Department opposed a similar proposal in 2002, saying most, if not all, incidents can be dealt with under existing laws and administrative procedures.

The Intelligence Identities Protection Act outlaws deliberate identification of covert agents; other laws focus on electronic communications, codes, atomic secrets and other sensitive data.

The pivotal statute is the Espionage Act of 1917, which was aimed at traditional foreign spies when written but, according to the government, is broad enough to encompass a much wider array of situations.

The law outlaws unauthorized disclosure or receipt of a wide range of information "relating to the national defense" and is not explicitly limited to classified data. Many legal experts and defense lawyers argue that the law is so expansive it may be unconstitutional and, said Syracuse University law professor William C. Banks, "shot full of holes."

"It's been very difficult for the government to use the Espionage Act to obtain a conviction for simply leaking information," said Banks, who also runs the Institute for National Security and Counterterrorism at Syracuse. "It was written to cover conventional espionage and spying, not conventional leaking within the government."

But the government was successful in using the statute in the case of Samuel L. Morison, a former Navy intelligence analyst convicted of espionage and theft during the Reagan administration for leaking secret U.S. spy satellite photographs to Jane's Defense Weekly. A judge in the case ruled against defense assertions that the Espionage Act was unconstitutionally vague.

Currently, two lobbyists for the American Israel Public Affairs Committee (AIPAC) are accused of receiving classified information during conversations with government officials, including former Pentagon employee Lawrence A. Franklin, who has been sentenced to 12 years in prison. In bringing the case, the government for the first time indicted two nongovernmental employees under the espionage law.

Prosecutors have also alarmed journalism groups and free-speech advocates by asserting that reporters could be prosecuted under the Espionage Act for receiving and publishing classified information. The laws governing classified material do not make it illegal to publish such material except in specific circumstances; for example, one statute outlaws reproducing or publishing photographs or drawings of designated military installations without government permission.

But in a brief filed in the AIPAC case, Justice Department lawyers argued there "plainly is no exemption in the statutes for the press," saying the Espionage Act and some Supreme Court opinions indicate that journalists can be prosecuted for revealing classified information.

At the same time, the lawyers said that prosecuting a reporter "would raise legitimate and serious issues and would not be undertaken lightly," adding that "the fact that there has never been such a prosecution speaks for itself."

Such disputes have renewed calls to revise the laws on classified information and espionage.

"The system is ossified, complicated and a relic of the Cold War period," said Elizabeth Rindskopf Parker, a former CIA and NSA general counsel who is dean of the University of the Pacific's law school and was recently named to a government board formed to oversee classification issues. "I think it needs to be looked at seriously again."

Researcher Julie Tate contributed to this report.


Financial Times
CIA warns ex-agents over talking to media
By Demetri Sevastopulo in Washington
Published: April 26 2006 22:05 | Last updated: April 26 2006 23:51

The Central Intelligence Agency has warned former employees not to have unapproved contacts with reporters, as part of a mounting campaign by the administration to crack down on officials who leak information on national security issues.
A former official said the CIA recently warned several retired employees who have consulting contracts with the agency that they could lose their pensions by talking to reporters without permission. He added that while the threats might be legally “hollow,” they were having a chilling effect on former employees.
The CIA called the allegations “rubbish”. Jennifer Millerwise Dyke, spokeswoman for CIA director Porter Goss, said former employees with consulting deals could lose their contracts for violating the CIA secrecy agreement by having unauthorised conversations with reporters. But she stressed that under current law, “termination of a contract does not affect pensions”.
The clampdown represents the latest move in what observers describe as the most aggressive government campaign against leaks in years. The Justice Department is investigating the disclosure to the media of secret overseas CIA prisons and a highly classified National Security Agency domestic spying programme authorised by President George W. Bush. Last week, the CIA fired Mary McCarthy, an intelligence officer, for allegedly leaking classified information and having undisclosed contacts with reporters.
Mr Goss has increased the number of “single issue” polygraphs – lie detector tests aimed at ferreting out leaking employees. A second former official said Mr Goss was trying to “scare everybody” by using polygraphs aggressively.
Elizabeth Rindskopf Parker, former CIA general counsel, said Mr Goss was “obviously taking a much more forward-leaning stance than any of us have seen for years”. But another former intelligence official said the agency was simply returning to a “more conservative regimen” to remind employees that they work for a secret organisation.
The House intelligence committee has asked John Negroponte, the director for national intelligence who oversees the 16 intelligence agencies, to study whether retirees could lose their pensions for disclosing classified information even when not prosecuted.
The attempt to silence former employees extends beyond those who still have consulting contracts. Larry Johnson, a former CIA official who blogs at www.TPMCafe.com, said he recently received a “threatening” letter reminding him about his confidentiality agreements.
Mr Johnson – who has criticised the White House for not aggressively investigating the outing of Valerie Plame, a former covert operative, said it was the first such letter he had received despite regularly commenting in the media on intelligence matters since his retirement in 1989. He said other former employees also received letters.
He said the CIA was also “very forceful” in intimidating a retired official who maintains ties to the agency after he signed a letter criticising the administration over the Plame leak.
Mr Gimigliano said CIA staff officers and contractors must sign a secrecy agreement which compelled them to seek prepublication permission for anything they wrote involving the CIA, intelligence matters, and classified material.
Mr Gimigliano added: “When a former officer or contractor fails to honour the legally binding agreement ... our Publications Review Board may send the individual a written reminder. That reminder includes the statement that ‘permission to publish will not be denied solely because information may be embarrassing to or critical of the agency’ ... Obviously, such letters contain no threats.”
But Mr Johnson and other critics say the campaign is also intended to crack down on politically embarrassing comments from former officials.
“They are trying to intimidate the press and trying to intimidate employees,” said Mr Johnson. “Anybody who has been critical of the Bush administration is getting letters.”
Another former CIA employee who maintains links to the agency said it did not need to be blatant about threats because contractors and retirees who had relationships with agency officials understood that talking to reporters could have repercussions for future work.
“People at the agency are bright enough to see that is going on, they don’t need to be reminded,” the former official said.
Stanley Sporkin, former CIA general counsel during the Reagan administration and a retired judge, said it was “ridiculous” that the agency was trying to limit contacts with the media.
He said the only restriction should be that they do not reveal classified information. Something has got to be done to address this. These days it is almost like a witch hunt,” said Mr Sporkin.

1 Comments:

Anonymous George W. Maschke said...

Indeed, the polygraph is a very blunt instrument. In the words of retired CIA polygrapher John Sullivan, "Polygraph is more art than science, and unless an admission is obtained, the final determination is frequently what we refer to as a scientific wild-ass guess (SWAG)."

I've blogged this entry on the AntiPolygraph.org News blog, where we also have commentary on the article in today's Washington Post.

5/01/2006 9:09 AM  

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