Over the past 20 years, dozens of military and civilian employees of the U.S. government have been punished for taking classified documents home from work without authorization. But few of these incidents have been made public, and the penalties have been extremely inconsistent, according to current and former federal officials.
Congress, the Justice Department and the FBI are grappling with how to achieve greater fairness in such cases as they review the treatment of John M. Deutch, a former CIA director who lost his security clearances but was not prosecuted for keeping secrets on ordinary home computers.
An aide to Attorney General Janet Reno said she was deeply concerned about the appearance of inequity in the handling of Deutch and Wen Ho Lee, a former scientist at Los Alamos National Laboratory who faces trial and a possible life sentence for transferring nuclear secrets to an unsecure computer and portable tapes, seven of which are missing.
A review of roughly similar cases that have come to light through interviews, administrative hearings and court records indicates that military personnel generally receive harsher punishment than civilians, even when soldiers have mishandled documents that are of little consequence and civilians have compromised secrets that are clearly important. Moreover, the government's response to civilian cases has varied widely, from firing to a minor reprimand to no action at all.
Justice Department officials say they generally do not prosecute civilians at the CIA, Pentagon, State Department or other federal agencies who mishandle secret documents, as long as there is no evidence of criminal intent, the information is not divulged to a third party, and the employees are disciplined administratively by their agencies.
A former Justice Department official who handled such cases said the practice of not prosecuting civilians for security violations developed more than 20 years ago "so as not to embarrass [federal agencies or the White House] in the courtroom."
"No matter how gross the violation, there would be no prosecution if the agency took strong administrative action," such as removal from the job and loss of security clearances, the former official said.
Military personnel often are treated more severely. Jail sentences or stiff administrative penalties, such as demotions and discharges, are common for service members caught removing classified material without authorization.
"If I had top-secret information on my home computer" while on active duty, "I would be investigated by the criminal investigative division, I would lose my clearance forever, and if it were top-secret or above, as it was in the Deutch case, I cannot imagine not being court-martialed--with jail time," said retired Army Lt. Col. Ralph Peters, an author and military analyst.
Some people with knowledge of past civilian and military cases, many of which have never been made public, allege a pattern of unfairness.
"There is a double standard. The more senior you are, the less chance you pay a heavy penalty," said a former senior intelligence official. He recalled, for example, that a top Pentagon official during the Nixon administration was found to have committed serious violations, and "everyone just walked away from it."
"There's no accountability," agreed Melvin A. Goodman, a former senior CIA analyst and professor of international security at the National War College. "What Deutch did, that was pretty gross. Important people seem to get away with more than lesser people."
The Deutch affair particularly rankles Norman A. Germino, who lost his job at the National Security Agency seven years ago for taking home documents that he contends were completely innocuous, such as a map and a foreign vocabulary list.
"The security people at NSA don't distinguish between serious breaches of intelligence--something a spy would do--and inadvertent mistakes," said Germino, who now works as a case manager in Maryland's Division of Corrections. "Deutch, being the . . . top man in the intelligence community, probably had some serious stuff. My stuff, it was junk. And I never put it on a computer where people could access it."
For comparison purposes, a report on the Deutch affair by the CIA's inspector general also outlines a remarkably similar security breach that was punished more swiftly and firmly.
In November 1996, Fritz Ermarth, a CIA senior intelligence analyst, was found to have written a document with the highest level of classification on his home computer, which was used to visit Internet sites. As in Deutch's case, members of Ermarth's family had access to the computer.
Unlike in the Deutch case, the CIA general counsel's office promptly filed a "crimes report" with the Justice Department, alerting prosecutors that a crime may have been committed. Ermarth was demoted in rank and salary, given a letter of reprimand barring raises for two years, and suspended without pay for a month. After the suspension, Ermarth's clearances were restored, and he retired from the agency a year later.
One important difference in the cases is that Deutch had already left the CIA when his violation was discovered, and so he could not be demoted or docked in pay. On the other hand, as director of the CIA, he bore responsibility to lead by example.
"The director of central intelligence is the only person in the entire U.S. government whose job description says, 'You will protect sources and methods,' " said Mark M. Lowenthal, former deputy secretary of state for intelligence and staff director of the House Permanent Select Committee on Intelligence. "The fact that he was DCI really raises the standard--there's no excuse for it."
Wen Ho Lee's attorneys are expected to argue that he is a victim of selective prosecution, citing the Deutch case--and possibly others--in which no criminal charges were brought. The Justice Department contends that there is a vital difference between the two cases: Lee is accused of gathering and copying secret data that was not necessary to his work, allegedly with intent to harm the United States or to aid a foreign power. Deutch, on the other hand, was writing official memos as part of his job; although he used unsecured computers, there is no allegation that his intent was malevolent to the country.
It is impossible to know how often government employees take classified material home at night. Many agencies either do not compile, or refuse to release, statistics on security violations. But there are indications that the practice is far from rare. The State Department investigated 38 incidents last year, and Energy Department officials say security officers have looked into seven cases of unauthorized removal of sensitive information over the past 13 months.
The CIA has another, admittedly indirect, indicator: When employees seeking to transfer to the CIA from other government agencies are given polygraph examinations, a senior intelligence official said, a "significant" number admit that in their previous jobs they took classified material home without authorization.
Technology is lending urgency to the issue. In the 1960s, an employee who took secret papers home in a briefcase, locked them in a drawer and returned them the next morning could be pretty certain that no one else had seen them. Today, if secret documents are created or stored on an ordinary computer connected to the Internet, they are vulnerable to undetected theft by foreign agents half a world away.
Computers are also changing the definition of taking documents home, because it is no longer necessary to slip papers into a briefcase and carry them past a guard. The Energy Department is investigating four cases of scientists at national weapons laboratories who opened e-mails on their home computers, only to find that the messages contained classified data forwarded from work. The scientists may not have intended to remove secret documents from the workplace, but the security risk was the same.
At least a dozen cases involving alleged mishandling of classified information -- but not espionage or intentional disclosure to a third party -- have come to light through interviews, court records and administrative hearings. These cases demonstrate the variety of laws that can be used to prosecute security violations and the broad spectrum of penalties that have been imposed:
Marine Sgt. Rickie L. Roller went to jail for 10 months, forfeited $14,400 in pay, was reduced in rank and was dishonorably discharged after he tossed classified documents into a gym bag when he cleaned out his office at Marine Corps headquarters in Washington to prepare for relocation to a new post in 1989. Roller was prosecuted in a military court for gross negligence in handling classified information, and his conviction was upheld on appeal even though the documents never fell into the hands of a third party.
Hans Tofte, a legendary spy from World War II, was fired by the CIA in the mid-1960s when a fellow employee who was interested in buying Tofte's house saw classified documents in one room and reported his colleague. Tofte, who died in 1987, unsuccessfully fought his dismissal, claiming it was standard practice for CIA employees to take work home.
Graham Martin, the last U.S. ambassador to South Vietnam, admitted in the late 1970s that he had kept many top-secret papers, including cables between himself and Secretary of State Henry A. Kissinger in the final days of the war. In 1980, the Justice Department cited Martin's age, 67, and failing health as factors in its decision not to prosecute.
Norman A. Germino, a National Security Agency language analyst, was stripped of his security clearance and dismissed for taking a commercially available map, a list of vocabulary words and some computer instructions home before leaving for an overseas assignment. Germino says he forgot about the materials, which were later found by his ex-wife and reported to the NSA. He contested his dismissal before the Merit Systems Protection Board in 1994, saying the material was not sensitive and the security breach was inadvertent. But his dismissal was upheld.
A Defense Department contractor was investigated by the FBI for keeping classified papers at his home in the mid-1990s. After the contractor voluntarily handed over some of the material, a search discovered that he still had classified documents dating back almost 30 years, including notes of White House meetings on classified subjects, according to an official familiar with the case. Despite pressure from the FBI, the Justice Department decided not to prosecute and supported reinstating the contractor's security clearance.
Air Force Sgt. Arthur J. Gaffney Jr. was charged in 1983 with gross negligence for taking home classified information that he was supposed to have destroyed at work. On several occasions, he threw the classified material in a Dumpster outside his home, where it was discovered by neighborhood children. His guilty plea was upheld by a court of military review.
Henry Otto Spade, a former Navy radio operator, was charged in 1988 with keeping a top-secret cryptographic key card and a top-secret document after he left the military. He was charged under Section 793(e) of the espionage statute, which makes it a felony punishable by up to 10 years in prison to "willfully" retain classified information. He pleaded guilty in January 1989.
Scott J. Chattin, a Navy code technician, was charged in 1989 with gross negligence and willful removal of a classified document, which he had stuffed into the front of his pants and taken home. Although the government did not allege espionage, Chattin was sentenced to four years in prison and given a dishonorable discharge.
A weapons scientist at Los Alamos National Laboratory accidentally placed the entire "Green Book," a highly classified manual on nuclear weapons design, on a computer attached to the Internet. The mistake occurred when the scientist's computer automatically backed up, or copied, the manual onto his unclassified hard drive. After Energy Department officials learned of the error last year, he was suspended without pay for 30 days but allowed to keep his security clearance.
Air Force Staff Sgt. Arthur E. Gonzalez was charged with gross negligence in handling classified information after he inadvertently took two top-secret messages on a military trip to Alaska in 1979. He testified that he realized his error and put the documents in a drawer for safekeeping, then forgot about them when he returned to Elmendorf Air Force Base. He was sentenced by a military court to a bad-conduct discharge and five months in prison.
Navy Chief Petty Officer James F. McGuiness was found in 1989 to have accumulated more than 300 classified documents at his home during his 16 years as an intelligence operations specialist. At his trial, he said he had used the documents as reference material when he worked at night. Although there was no evidence that any secrets had been lost or stolen, McGuiness was sentenced to two years in prison.
Aldrich H. Ames left a briefcase full of secret documents on the New York City subway, long before he became the most notorious traitor in CIA history. He got the briefcase back after a school teacher found it and notified the FBI. The episode might have raised red flags about Ames, but it didn't. Years later, FBI agents investigating Ames for espionage found more than 100 classified documents on his home computer.
David W. Griffith, a former code analyst at the NSA, and his wife, J. Marie Griffith, also an ex-NSA employee, were the first people prosecuted under a 1994 statue that makes unauthorized removal and retention of classified documents a misdemeanor, punishable by a fine of up to $1,000 and one year in jail. They pleaded guilty in 1998 to keeping classified manuals and computer disks after leaving the agency. He was fined $500; she was fined $750.
Sahag K. Dedeyan, a mathematician at the Johns Hopkins University Applied Physics Laboratory, was charged with gross negligence in 1975 for taking a secret study he was conducting for the Navy home for proofreading. A visiting cousin, who turned out to be a Soviet spy, photographed the document while Dedeyan was not around. The mathematician was convicted and sentenced to three years in prison.