Justice Dept. cracks down on leaks

Josh Gerstein
May 25, 2010 04:44 AM EDT

The Obama administration’s crackdown on leaks to the press has snared a high-profile conviction of an FBI linguist, who was sentenced to 20 months in prison Monday after pleading guilty to giving classified information to a blogger.

The sentence for Shamai Leibowitz is likely to become the longest ever served by a government employee accused of passing national security secrets to a member of the media. His case represents only the third known conviction in U.S. history for a government official or contractor providing classified information to the press.

And it reflects a surprising development: President Barack Obama’s Justice Department has taken a hard line against leakers, and Obama himself has expressed anger about disclosures of national security deliberations in the press.

“I think it’s remarkable,” said Gabriel Schoenfeld, a fellow at the conservative Hudson Institute who urged prosecution of The New York Times for publishing details of the Bush administration’s warrantless wiretapping program in 2005. “This is the administration that came in pledging maximum transparency. Plugging leaks is ... traditionally not associated with openness.”

“They’re going after this at every opportunity and with unmatched vigor,” said Steven Aftergood of the Federation of American Scientists, a critic of government classification policy.

Last month, the Justice Department reissued a Bush-era grand jury subpoena against New York Times reporter James Risen for the sources he relied on in a chapter of his 2006 book, “State of War,” which focuses on a CIA-led ruse to disrupt Iranian nuclear weapons research. Risen has vowed to fight the subpoena but might face the possibility of jail time for contempt if a judge refuses to step in.

“I was extremely surprised that the Risen subpoena was reinstituted. That struck me as a battle that no one needed to have,” said Hearst Corp. general counsel Eve Burton, a veteran of legal battles over press sources. “I thought Eric Holder would be a more moderating force in that regard.”
The Justice Department also obtained an indictment last month of former National Security Agency official Thomas Drake in connection with leaks that apparently led to a Baltimore Sun series on alleged mismanagement of an NSA program to process large volumes of intercepted data. Drake has pleaded not guilty.

“If Thomas Drake is convicted and sentenced to jail, this will be the first president to send two leakers to prison in his term in office. That’s never happened before,” said Schoenfeld, author of the book “Necessary Secrets.” “You wouldn’t have expected the Holder Justice Department to be particularly hawkish in these matters.”

No one has suggested that the moves were directed by the White House, but Obama has repeatedly let subordinates know that he is deeply troubled by leaks on sensitive national security matters like Afghanistan and Pakistan, as well as administration infighting on more mundane issues.

“Obama had one pet peeve that could make him lose his cool ... leaks,” Newsweek’s Jonathan Alter wrote in his new book, “The Promise.” According to Alter, Obama was “fearsome” on the subject and went on an “anti-leak jihad” over some disclosures.

In November, after leaks of a key Pentagon strategy memo and classified State Department cables on Afghanistan, top administration officials said the nation’s counterintelligence czar, Robert Bear Bryant, had been tasked with drafting a new strategy to combat classified leaks.

Some experts said the administration and the Justice Department may be trying to appease the intelligence community after angering many by releasing the so-called torture memos and by reopening inquiries into alleged torture by CIA personnel. Others said intelligence personnel are terrified by outlets like Wikileaks, on which classified information can be posted without any meaningful chance for officials to argue for the withholding of details that could damage U.S. intelligence efforts.

“We are in a new world,” said Lucy Dalglish of The Reporters Committee for Freedom of the Press. “At least when you have a leak to the mainstream media, you know there’s a little judgment and training there. ... You have some opportunity to try to talk people out of revealing information that shows sources or methods.”

Asked about the series of cases, one official said Monday: “The Justice Department has always taken these matters seriously.”
At Wednesday’s hearing, U.S. District Court Judge Alexander Williams Jr. imposed the 20-month sentence that had been agreed on as part of a plea bargain between prosecutors and Leibowitz’s defense.

“It was a very, very serious offense,” Williams said. However, in an unusual admission, Williams went on to say that while he assumed that the disclosures had a serious impact on national security, he really didn’t know because he wasn’t privy to what information was disclosed and what impact it had.

“The court is in the dark,” the judge said. “I’m not a part and parcel of the intricacies of that. ... I don’t know what was divulged, other than some documents.”

In his statement at the sentencing, Leibowitz also shed little light on what he leaked, though he said he was trying to bring to light something he considered illegal.

“This was a one-time mistake that happened to me when I worked at the FBI and saw things that I considered a violation of the law,” said Leibowitz, who has also worked as a lawyer in the U.S. and Israel but has now been suspended from the New York bar.

“I should not have told a reporter about this,” he said, adding that he instead should have reported the matter to an agency inspector general.

Assistant U.S Attorney Steven Dunne defended the sentence at a brief sentencing hearing Monday afternoon in federal court in Greenbelt, Md. “The government felt that a significant period of incarceration was proper and appropriate. Mr. Leibowitz worked for the FBI, and he betrayed the FBI when he worked there,” Dunne said.

But such cases are relatively rare.

In 1985, Navy analyst Samuel Morison was convicted of providing spy satellite photos to Jane’s Defence Weekly. Media organizations strongly protested, but an appeals court upheld the conviction. Morison was sentenced to two years in prison but was paroled after eight months.

In 2005, Pentagon analyst Larry Franklin pleaded guilty to a conspiracy to disclose classified information about Iran and other matters to pro-Israel lobbyists, foreign officials and the press. Franklin was initially sentenced to more than 12 years in prison, but a judge later cut the term to 10 months of community confinement.

In an unprecedented twist, two employees of the American Israel Public Affairs Committee who allegedly received some of the leaks were also charged criminally, but the Justice Department eventually dropped the case.

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