“Obviously,” Gonzales replied, “our prosecutors are going to look to see all the laws that have been violated. And if the evidence is there, they’re going to prosecute those violations.”
While judges were approving a wave of subpoenas, the administration also went to extraordinary lengths to investigate old leaks. On March 3, a pair of FBI agents showed up at the Bethesda home of Mark Feldstein, a journalism professor and former investigative reporter for CNN. They demanded that Feldstein hand over decades-old documents that he’d been researching for a book on investigative columnist Jack Anderson, who’d died a few months earlier. When Feldstein asked what crime the FBI was investigating, an agent replied, “Violations of the Espionage Act.”
Anderson’s family had donated about 200 boxes of materials to George Washington University, where Feldstein taught. Feldstein told the agents that the files were “ancient history” and wouldn’t be of much use for current investigations. The agents countered that they could establish a “pattern and practice” of leaking going back to the early 1980s. They were investigating a new espionage case, involving two lobbyists for the American Israel Public Affairs Committee who’d been indicted for receiving classified information. The FBI wanted Feldstein to tell them the names of reporters who’d worked for Anderson and who held pro-Israel views and had pro-Israel sources.
Feldstein didn’t hand over the documents or assist the FBI. He also told the agents it was unlikely anything in Anderson’s files would be of much use. Anderson had been ill with Parkinson’s disease since 1986 and hadn’t done much original reporting after that.
“If the agents had done even rudimentary research, they would have known that,” Feldstein wrote in a Washington Post column. “The fact that they didn’t was disturbing, because it suggested that the bureau viewed reporters’ notes as the first stop in a criminal investigation rather than as a last step reluctantly taken only after all other avenues have failed.”
Reclaiming old notes from a dead reporter employed a legal maneuver that experts said “was surprising if not unheard of,” Adam Liptak of the Times observed in April 2006. An FBI spokesman told the paper that “under the law, no private person may possess classified documents that were illegally provided to them.” Anderson’s status as a journalist gave him no right to possess official secrets, the government argued.
The Times noted that “the administration’s position draws support from an unlikely source . . . .” It was the Pentagon Papers case, generally regarded as a press victory. But in its own reexamination of a Supreme Court opinion, the government noticed that two of the justices had found some basis for prosecuting the Times and the Washington Post after they published their articles, which the papers knew contained classified information.
For journalists, the Espionage Act is frighteningly broad and vague on this question. The Nixon administration considered prosecuting the Times, but a US Attorney in Manhattan decided not to.
In 2006, the government stood a better chance. Another espionage statute, enacted in 1950, forbade publication of “communications intelligence activities.” That put Risen and Lichtblau’s surveillance story in the law’s crosshairs. The 1917 law might also cover them, and it could apply to a major story the Post had run in November 2005 about a global network of CIA prisons used to interrogate high-level terrorists.
As of April 2006, the Times reported, neither it nor the Post had been contacted by government investigators. But two years later, Risen received a subpoena for the Merlin chapter in his book. He has not been indicted under the espionage laws.
But another recent leak case again has again raised the prospect that a journalist could be prosecuted. In November 2005, Thomas Drake, a senior official at the National Security Agency, made contact with a reporter for the Baltimore Sun who’d been covering NSA. As spelled out in a federal indictment of Drake for multiple violations of the Espionage Act, he provided the reporter with classified information about NSA programs in the course of hundreds of e-mail exchanges and at least half a dozen in-person meetings in Washington.
The government alleges that Drake was a source for many of the articles, written by a then up-and-coming beat reporter named Siobhan Gorman. Drake allegedly reviewed drafts of Gorman’s work and assisted her by posing questions on her behalf to his unwitting colleagues. Without naming her sources, Gorman wrote in her articles that some of the information she’d received was classified.
Drake appears to have been one of Gorman’s primary sources for a string of exposés on the Trailblazer program, an NSA effort to collate massive amounts of electronic intelligence about terrorists and spies, which is a vital national-security mission. But Trailblazer had failed to live up to its designers’ promises, and the agency was wasting hundreds of millions of dollars.
Drake had been talking to a lot of people before he ever contacted Gorman. After NSA hired him in 2001, he began complaining to his superiors and to official watchdogs about wasteful programs. He followed the channels that employees are encouraged to use rather than seek out reporters. Drake went to inspectors general at NSA and the Defense Department as well as the congressional intelligence committees. According to the government’s indictment, Drake found a conduit to Gorman through a former House Intelligence Committee staffer named Diane Roark. She suggested that Drake get in contact with the reporter.
Drake knew NSA and its problems inside and out. He had been a contractor from 1991 until 2001, when the agency hired him as a permanent employee. A computer scientist, he’d spent most of his career honing a specialty in the field of “quality assurance,” a systematic approach to evaluating computer software to ensure that it’s functioning up to snuff. That put him in a position to know when programs weren’t performing as expected.
Drake was also a prolific writer. A survey of his work on quality assurance over the years reveals someone with a passion for precision and accountability as well as a certainty in the importance of his work. He jazzed up a number of dense papers for a trade conference with dramatic, occasionally allusive titles. “Testing Network Based Software Systems—The Future Frontier.” “The Future of Software Quality—Our Brave New World—Are We Ready?”
Drake fits the profile of a classic whistleblower. He was low enough in the bureaucracy to know how the place functioned day to day, but he had the high-level security clearances to obtain classified information that could support his allegations. Drake was tireless, driven, and obsessive. He may also have taken concerns about other NSA problems to another reporter. In April, at a journalism conference in Geneva, the New Yorker’s national-security writer, Seymour Hersh, said that Drake had contacted him two years before. Drake told a story “much more devastating” and “much more important” than what the Sun reported, Hersh said. But the reporter didn’t follow up—in part, he says, because he “didn’t like the situation” and the story was “very hard to prove.”
Hersh declines to elaborate or to discuss Drake. “The guy’s got enough problems,” he says via e-mail.
Gorman’s stories exposed a pattern of waste and poor decision-making at the top levels of an agency playing a front-line battle in the war on terror. She won a prize for her reporting. But nowhere in her long series did Gorman reveal how NSA spies on its targets or any information that could reasonably be expected to assist an enemy. Even former intelligence officials thought the articles revealed dire shortcomings that needed correction. One told me that an article showing that NSA was in danger of running out of electricity to power its computers came as a revelation. “I thought, you’ve got to be shitting me,” the former official said. “They’re Baltimore Gas & Electric’s biggest customer. How could they run out of power?”
But in the midst of her public-service journalism, Gorman may have put herself in legal jeopardy. Indeed, so do all reporters who knowingly publish classified information. Through her attorney, Gorman declined to speak with me. We have known each other for many years; I replaced Gorman as intelligence correspondent at National Journal in 2005 after she left the magazine to join the Sun. A source familiar with the case says Gorman hasn’t been contacted by the Justice Department.
The Drake case and the Risen subpoena represent two ends of a spectrum. In the Drake case, the government prosecuted an alleged leaker and left the reporter alone. In the Risen case, the government believes the reporter is essential to ensuring a conviction, so it has compelled him to give up his source.
Drake appears to have been discovered in the course of another investigation. NSA ran the program on electronic surveillance that Risen and Lichtblau exposed, and according to knowledgeable sources, Drake was being investigated as a possible source. In November 2007, the FBI raided his home in suburban Maryland. In the course of searching for evidence of one leak, about the surveillance program, the agents appear to have discovered evidence of another—the one to Gorman.
Drake resigned from NSA in April 2008 rather than be fired. In April of this year, he pleaded not guilty in US district court in Baltimore. After the hearing, Drake’s public defender, James Wyda, said: “There is no evidence that these allegations were motivated by disloyalty, greed, or any untoward motive.” Wyda had earlier told reporters that Drake was “extraordinarily cooperative” with investigators. The attorney said he was “very disappointed that the process ended in criminal charges.” A trial has been tentatively set for October 18.
Meanwhile, the fate of reporters may hang on two bills pending in Congress that would create a so-called shield for reporters to protect their sources’ identities. The bills would more or less enshrine the balancing test that many judges adopted after the Branzburg case in 1972.
The House bill is “particularly strong” on protecting sources’ anonymity, says Chuck Tobin. He explains that in order for a judge to enforce a subpoena, the government would have to show that the information that was leaked was “properly classified” to begin with, that the harm to national security was “significant and articulable,” and that the public interest in exposing the source’s identity “outweighs” the interest in protecting journalism.
“The judge would take each of these words very seriously,” Tobin says. “That would provide reporters like Risen with an excellent fighting chance to protect their sources—much better than the recent court decisions, which provide virtually no protection at all.”
Risen may not soon get the chance to use the press shield. As of early July, the bills hadn’t been put to a vote, and it looked doubtful that lawmakers would hold a vote before the August recess, particularly as they rushed to pass financial-services reform, confirm the next Supreme Court justice, and grapple with the faltering war in Afghanistan.
In negotiations with Obama-administration officials, reporters’ advocates tried to get a shield law with strong, unilateral protections for journalists—a true reporter’s privilege. “We found out fairly early on that was not going to fly,” says Paul Boyle, who runs public policy for the Newspaper Association of America. “Over time, the legislation has been weakened.”
In talking to members of Congress, Boyle found that even self-described defenders of the First Amendment weren’t prepared to give journalists total immunity from testifying. There had to be exceptions to assist law enforcement and to protect national security. “Most of the committee and staff are lawyers,” Boyle says. “They came from that bent.”
“The administration and the White House took more of a central role, along with the Justice Department, on what they could live with,” says Kurt Wimmer, a media attorney who was directly involved in the negotiations with the executive branch. “Justice can still issue subpoenas, but after the fact, having a judge review it was a hurdle.” Because some judges had tended to rule in favor of the government, prosecutors could be selective about where they issued their subpoenas. A press-shield law would even the playing field.
Wimmer thought “it was hard” for attorney general Holder to agree to the compromise. Holder’s former deputy, Washington attorney David Ogden, calls the press-shield bills “a major concession” and “unprecedented.”
“The government takes the idea of classified information very seriously,” Ogden says. “Certainly more seriously than the press does.” Ogden acknowledges that the government has a history of “some over-classifying over the years,” making information secret that didn’t need to be. “But when you’ve been in government, seeing classified information all the time, you know there are some very serious secrets that would harm national security if they were leaked.”
“The hardest issue has to do with limits,” Ogden says. “The Justice Department never supported an absolute reporter’s privilege.” Asked if there has been a sea change within the Justice Department after the Plame affair and if prosecutors are more aggressively pursuing leakers, Ogden says, “I don’t know. It’s a good question.”
Many journalists had been expecting a White House that would be friendlier to the press, one that, if not exactly tolerant of leaking, wouldn’t pursue leakers in court—and certainly wouldn’t go after reporters.
“With the Bush people, there were no illusions; with Obama there were high hopes,” says Mark Feldstein, the journalism professor who kept Jack Anderson’s papers from the FBI. “There was a lot of swooning in the media over Obama, and a lot of that translated into presumptions about policy. But the reality is that all administrations, all governments, view the press with skepticism if not paranoia. All governments want to control the agenda.”
To view the administration’s aggressive pursuit of leakers and journalists as an artifact of the current presidency, or as some kind of extension of Obama’s innate intolerance for airing private disagreements, is to miss the greater influence that career government officials have over which cases to bring, and whom to subpoena.
“So much of the decision-making is made by the middle layers of the bureaucracy,” Feldstein says. “They function on autopilot. The career prosecutors don’t change from year to year. Their recommendations are probably the same whether Eric Holder is attorney general or Alberto Gonzales.”
The Justice Department is taking advantage of President Obama’s disdain for leaks by flexing a muscle that it’s been building for almost ten years as the tide has shifted from a protected press establishment toward a stronger prosecutorial force. Conveniently for Obama, the President has inherited a bureaucracy that’s primed for battle, and it’s winning more than it’s losing.
This story appears in the August issue of Washingtonian.