Little Is Clear in Laws on Leaks

By Dan Eggen
Washington Post Staff Writer
Friday, April 28, 2006

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."


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