White House will attempt to prosecute leaks

The Washington Post is reporting that the Bush administration has ramped up efforts to prevent leaks like the ones that disclosed the existence of the NSA domestic spying program. Today's article "White House Trains Efforts on Media Leaks" reports that:

"In recent weeks, dozens of employees at the CIA, the National Security Agency and other intelligence agencies have been interviewed by agents from the FBI's Washington field office, who are investigating possible leaks that led to reports about secret CIA prisons and the NSA's warrantless domestic surveillance program, according to law enforcement and intelligence officials familiar with the two cases . . .

. . . At Langley, the CIA's security office has been conducting numerous interviews and polygraph examinations of employees in an effort to discover whether any of them have had unauthorized contact with journalists. CIA Director Porter J. Goss has spoken about the issue at an 'all hands' meeting of employees, and sent a recent cable to the field aimed at discouraging media contacts and reminding employees of the penalties for disclosing classified information, according to intelligence sources and people in touch with agency officials. 'It is my aim, and it is my hope, that we will witness a grand jury investigation with reporters present being asked to reveal who is leaking this information,' Goss told a Senate committee." [Washington Post]

The Bush administration's legal actions may bring to a head the current legal debate over the reporter's qualified privilege. While some leaks are harmful - such the leaking of confidential information about nuclear weapons systems, or the identity of a clandestine government agent - leaks also led to the disclosure of the use of torture techniques at Abu Ghraib and the existence of the NSA's practice of spying on American citizens without warrants.

Whether the courts should protect the confidentiality of reporters' sources in certain kinds of leaks was a key issue in the Court of Appeals for the District of Columbia's denial of the appeal by Cooper and Judith Miller in the Valerie Plame case [PDF]. In his concurrence (which begins on page 43 of the PDF), Judge Tatel emphasized the public interest value derived from reporters' confidential communications with government officials, whose insider information takes on particular significance in news stories of paramount First Amendment importance, such as reports about government corruption or wrongdoing. Tatel cited New York Times articles about an expensive military satellite system which had been criticized by Senators from both major parties as unnecessary, and pre-9/11 articles about the threat posed by Al Qaeda, as examples of reporting based on productive leaks from confidential sources.

For another good discussion of the role of leaks in newsgathering, see Jack Nelson's January 2003 Los Angeles Times column "Government Secrecy: What Leaks are Good Leaks?"