A High-Tech War on Leaks
By Adam Liptak February 11, 2012 New York Times
In the 1976 film “All the President’s Men,” Robert Redford plays Bob Woodward, who waits for his source in a parking garage. Warner Bros.
BACK in 2006, before the Obama administration made leak prosecutions routine, a panel of three federal appeals court judges in New York struggled to decide whether a prosecutor should be allowed to see the phone records of two New York Times reporters, Judith Miller and Philip Shenon, in an effort to determine their sources for articles about Islamic charities.
“I’ve been thinking about the scene in ‘All the President’s Men,’ ” said Judge Robert D. Sack, citing the leading cinematic precedent. He meant the part where Bob Woodward, in the process of unraveling the Watergate scandal for The Washington Post, meets his source in an underground parking garage.
“First of all,” Judge Sack asked, “do you really have to meet in a garage to maintain your confidentiality? Second of all, can the government go and subpoena the surveillance camera?”
Six years and six prosecutions later, those questions seem as naïve as their answers are obvious: yes and yes.
It used to be that journalists had a sporting chance of protecting their sources. The best and sometimes only way to identify a leaker was to pressure the reporter or news organization that received the leak, but even subpoenas tended to be resisted. Today, advances in surveillance technology allow the government to keep a perpetual eye on those with security clearances, and give prosecutors the ability to punish officials for disclosing secrets without provoking a clash with the press.
The changes have unsettled a decades-long accommodation between national security and press freedom, one in which the government did what it could to protect its secrets but exercised discretion in resorting to subpoenas and criminal charges when it failed. Even the administration of George W. Bush, no friend of leaks, more or less stuck to this script.
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“The government does not pursue every leak,” said Mark Corallo, who served as the Justice Department’s spokesman in Mr. Bush’s administration. “On balance, it is more important that the media have the ability to report. It’s important to our democracy.”
That does not seem to be the view of the Obama administration, which has brought more prosecutions against current or former government officials for providing classified information to the media than every previous administration combined.
“It increases the level of paranoia,” Steven Aftergood, an expert on government secrecy at the Federation of American Scientists, said of recent trends. “As security has been ratcheted up, so has the anxiety of many government officials about dealing with the press and the public.”
Mr. Corallo, who served under Mr. Bush’s attorney general John D. Ashcroft, said he was “sort of shocked” by the volume of leak prosecutions under President Obama. “We would have gotten hammered for it,” he said.
The current administration attributes the volume of prosecutions to happenstance and the availability of evidence, rejecting accusations of politically motivated selective prosecution.
“The Justice Department has always taken seriously cases in which government employees and contractors entrusted with classified information are suspected of willfully disclosing such classified information to those not entitled to it,” a department official explained. “As a general matter, prosecutions of those who leaked classified information to reporters have been rare, due, in part, to the inherent challenges involved in identifying the person responsible for the illegal disclosure and in compiling the evidence necessary to prove it beyond a reasonable doubt.”
MR. ASHCROFT authorized a single subpoena for reporters’ testimony or records in his four years in office, Mr. Corallo said. He would not say so, but that subpoena was probably the one that troubled Judge Sack in 2006. The reporters lost. In a dissent, Judge Sack said he feared for the future.