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White House Trains Efforts on Media Leaks
But David B. Rivkin Jr., a partner at Baker & Hostetler in Washington and a senior lawyer in the Reagan and George H.W. Bush administrations, said the leaking is "out of control," especially given the unique threat posed by terrorist groups.
"We're at the end of this paradigm where we had this sort of gentlemen's agreement where you had leaks and journalists were allowed to protect the leakers," Rivkin said. "Everyone is playing Russian roulette now."
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.
The Justice Department also argued in a court filing last month that reporters can be prosecuted under the 1917 Espionage Act for receiving and publishing classified information. The brief was filed in support of a case against two pro-Israeli lobbyists, who are the first nongovernment officials to be prosecuted for receiving and distributing classified information.
Sen. Pat Roberts (R-Kan.), chairman of the Senate intelligence committee, said last month that he is considering legislation that would criminalize the leaking of a wider range of classified information than what is now covered by law. The measure would be similar to earlier legislation that was vetoed by President Bill Clinton in 2000 and opposed by then-Attorney General John D. Ashcroft in 2002.
But the vice chairman of the same committee, Sen. John D. Rockefeller IV (D-W.Va.), complained in a letter to the national intelligence director last month that "damaging revelations of intelligence sources and methods are generated primarily by Executive Branch officials pushing a particular policy, and not by the rank-and-file employees of the intelligence agencies."
As evidence, Rockefeller points to the case of Valerie Plame, a CIA officer whose identity was leaked to the media. A grand jury investigation by Special Counsel Patrick J. Fitzgerald resulted last year in the jailing of Judith Miller, then a reporter at the New York Times, for refusing to testify, and in criminal charges against I. Lewis "Scooter" Libby, who resigned as Vice President Cheney's chief of staff. In court papers, Libby has said that his "superiors" authorized him to disclose a classified government report.
The New York Times, which first disclosed the NSA program in December, and The Post, which reported on secret CIA prisons in November, said investigators have not contacted reporters or editors about those articles.
Leonard Downie Jr., executive editor of The Post, said there has long been a "natural and healthy tension between government and the media" on national security issues, but that he is "concerned" about comments by Goss and others that appear to reflect a more aggressive stance by the government. Downie noted that The Post had at times honored government requests not to report particularly sensitive information, such as the location of CIA prisons in Eastern Europe.
"We do not want to inadvertently threaten human life or legitimately harm national security in our reporting," he said. "But it's important . . . in our constitutional system that these final decisions be made by newspaper editors and not the government."
In Sacramento, the Bee newspaper reported last month that FBI agents had contacted two of its reporters and, along with a federal prosecutor, had "questioned" a third reporter about articles last July detailing the contents of sealed court documents about five terrorism suspects. A Bee article on the contacts did not address whether the reporters supplied the agents with any information or whether they were subject to subpoenas.