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<\/a>No high-profile case has been brought against an alleged leaker, despite Jeff Sessions telling a congressional committee in November that there were 27 active probes. (AP)
Evan Vucci<\/p><\/div>\n
With his job performance\u00a0reviewed negatively on Twitter<\/a>\u00a0by his boss, Attorney General Jeff Sessions\u00a0convened a press conference<\/a>\u00a0to declare a crackdown on illegal leaks to the press.<\/p>\n \u201cWe are taking a stand. This culture of leaking must stop,\u201d Sessions said at the\u00a0August event<\/a>, shortly after President Trump fumed that the attorney general was taking a \u201cVERY weak<\/a>\u201d approach to disclosures of classified information.<\/p>\n But since then, no high-profile case has been brought against an alleged leaker, despite Sessions\u00a0telling<\/a>\u00a0a congressional committee in November that there were 27 active probes.<\/p>\n Probable criminal leaks still uncharged include the\u00a0disclosure of transcripts from Trump\u2019s calls<\/a>\u00a0with foreign leaders and information on NSA intercepts involving former Trump adviser Michael Flynn.<\/p>\n Experts are divided on what to make of the lull, which follows a torrent of anti-Trump leaks on the heels of President Obama\u2019s\u00a0“war on leaks”<\/a>\u00a0with superlative use of the Espionage Act to punish speaking with reporters.<\/p>\n “I get the impression \u2013 and it is nothing more than an impression \u2013 that DOJ has shown somewhat less zeal for going after leakers. That may reflect the general view of official Washington about Mr. Trump,” said Robert Deitz, general counsel of the National Security Agency from 1998 to 2006.<\/p>\n Deitz, who also served in senior legal roles at the CIA, the Defense Department and the National Geospatial-Intelligence Agency, doesn\u2019t take Sessions\u2019 claim of more investigations at face value.<\/p>\n “As used by Mr. Sessions, I would not think of the word ‘investigation’ as a term of art with a rigorous definition,” he said.<\/p>\n Not all leaks are criminal, and it\u2019s conceivable factors such as widespread use of encrypted communication technology is frustrating investigators.<\/p>\n So far under Trump, only NSA contractor\u00a0Reality Winner<\/a>\u00a0has been charged under the Espionage Act for press contact \u2014 in June, after allegedly mailing a classified document to a news outlet. The outlet is believed to be The Intercept, which\u00a0reported<\/a>\u00a0on a top-secret review of Russian attempts to hack election officials in 2016.<\/p>\n Winner\u00a0reportedly<\/a>\u00a0was one of six people who printed the document, and the only one who contacted the news outlet. She allegedly confessed and currently is being held pending trial.<\/p>\n Obama\u2019s administration brought eight Espionage Act cases against people accused of giving information to the press. The law carries stiff penalties and no room for a public-interest defense, and historically was used to target spies, with only three pre-Obama cases against press sources.<\/p>\n Former CIA operative John Kiriakou, one of the press contacts hit with Espionage Act charges under Obama, said he\u2019s hopeful that the Trump administration is taking a lighter approach.<\/p>\n “President Trump seems to have settled on a policy to not target national security whistleblowers, with the notable exception of Reality Winner. That’s good for the country,” Kiriakou said.<\/p>\n “The self-professed ‘most transparent president in history’ was anything but. [Obama] was the enemy of transparency,” he said.<\/p>\n “His attorney general, Eric Holder, actively targeted any national security employee who went public with evidence of waste, fraud, abuse, or illegality and did so with the full support and assistance of the FBI, the CIA, and the DNI,” he said. “The goal was to silence those national security officers and to frighten others who were considering doing the same. Those days may be over.”<\/p>\n Kiriakou led a CIA team that captured al Qaeda operative Abu Zubaydah in 2002, but later publicly criticized interrogation tactics he considers torture. Kiriakou was charged under the Espionage Act after\u00a0giving a then-freelance journalist<\/a>\u00a0the name of an active CIA employee, which the reporter did not publish. He pleaded guilty in 2012 to a lesser charge and served nearly two years in prison.<\/p>\n Another of the eight Obama-era Espionage Act indictees, former NSA senior executive Thomas Drake, offered a less rosy take.<\/p>\n “Leak investigations continue under Trump, a continuum from Obama. And yet White Houses under both administrations [are the] greatest leaker of all,” Drake said. He and other pro-whistleblower activists point out that powerful people who carelessly handle secrets or leak in their own interests, such as former Secretary of State Hillary Clinton and former CIA Director David Petraeus, rarely face harsh criminal penalties.<\/p>\n Drake was charged with violating the Espionage Act in 2010\u00a0after communicating<\/a>\u00a0with a Baltimore Sun journalist reporting on ineffective and expensive NSA programs, including the abandoned $1.2 billion Trailblazer surveillance program, which was chosen over a cheaper, more privacy-protecting alternative. Drake pleaded guilty to a single misdemeanor in 2011.<\/p>\n “No high profile cases? What about the ongoing Reality Winner case as well as several other [national security] cases?” he said. “And Sessions has stated that there are over two dozen ongoing ‘leak’ investigations. By definition all ‘leak’ cases involve the media, either directly or indirectly.”<\/p>\n Although Winner stands alone in being publicly charged with providing information to journalists, Sessions\u00a0said<\/a>\u00a0in August that four people, presumably including Winner, had been charged with “unlawfully disclosing classified material or with concealing contacts with foreign intelligence officers.”<\/p>\n Justice Department spokesmen did not respond to a request for fresh data, but the number of cases involving classified information increased when former NSA employee Nghia Hoang Pho was charged in late November, and almost immediately\u00a0pleaded guilty<\/a>, to unlawfully retaining top-secret records\u00a0reportedly<\/a>\u00a0taken by Russian hackers through Kaspersky Lab anti-virus software on Pho\u2019s personal computer.<\/p>\n Steven Aftergood, director of the government secrecy project at the Federation of American Scientists, said it\u2019s too soon to draw conclusions about the Trump administration.<\/p>\n “It can sometimes take years for a leak to result in an indictment,” Aftergood said. “Aside from that, there are other penalties available to the government besides criminal prosecution \u2014 such as loss of clearance, termination of employment, and more.”<\/p>\n Aftergood said that “we can only see the visible part of the iceberg, not what’s below the surface. We can talk about what we know, but it’s important to be aware that we don’t see the full picture.”<\/p>\n He notes that the first leak case under Obama \u2014 against FBI translator Shamai Leibowitz, for allegedly giving information to a blogger \u2014 was not filed until December 2009, the end of Obama’s first year in office. “It is still early to draw comparisons with the Trump administration,\u201d he said.<\/p>\n Aftergood and Deitz, the former NSA attorney, find common ground analyzing\u00a0Obama\u2019s record.<\/a><\/p>\n \u201cObama set new standards of aggressiveness in prosecuting and punishing leaks,\u201d Aftergood said.<\/p>\n \u201cThat is my instinct, based only on the number of you guys who were investigated,\u201d Deitz said, referring to journalists.<\/p>\n The Obama administration waged a long legal battle to compel testimony from a New York Times reporter in the Espionage Act case against CIA employee Jeffrey Sterling, labeled a Fox News reporter a suspected criminal “co-conspirator” in the Espionage Act case against State Department official Stephen Kim, and secretly acquired Associated Press phone records in the case against Donald Sachtleben, a former FBI agent.<\/p>\n Two of the most prominent Obama-era Espionage Act cases \u2014 against mass surveillance whistleblower Edward Snowden and WikiLeaks source Chelsea Manning \u2014 involved politically motivated disclosures, but others had murkier motivates.<\/p>\n Sterling, who had alleged racial discrimination at the CIA, was convicted of exposing an allegedly bungled plot to undermine Iran\u2019s nuclear program, Kim pleaded guilty to sharing an analysis of North Korean intentions, and Sachtleben \u2014 already jailed for child porn \u2014 pleaded guilty to disclosing a foiled al Qaeda airplane bomb plot, a disclosure whose alleged damage was\u00a0compounded by<\/a>\u00a0former counterterrorism official Richard Clarke saying on TV that the U.S. had “insider control” of the plot. Clarke was told the detail by Obama adviser John Brennan, but neither man faced charges and Brennan became CIA director.<\/p>\n Deitz said even if a crackdown intensifies under Trump, leaks are unlikely to stop.<\/p>\n “I do not believe that leaks can be stopped by a ‘war,’ in the absence of an attack on civil liberties that Americans would never tolerate,” he said.<\/p>\n