“Crimes Reports” and the Leak Referral Process

“Crimes reports” are official notifications that are sent by U.S. intelligence agencies to the Department of Justice when an unauthorized disclosure of classified information (or another potential federal crime) is believed to have occurred.  Crimes reporting is required by statute, by executive order, and by interagency agreement between the Attorney General and the heads of intelligence agencies.

“We file crimes reports every week,” said George J. Tenet in a discussion of leaks during his 1997 confirmation hearing to be Director of Central Intelligence.

“Say again?” said Sen. Robert Kerrey, who may have been unfamiliar with the term used by Mr. Tenet.

“We file crimes reports with the Attorney General every week about leaks, and we’re never successful in litigating one,” Mr. Tenet said.

In general, information or allegations concerning criminal activity by government employees should be reported to the Attorney General pursuant to 28 U.S.C. 535, “Investigation of crimes involving Government officers and employees.”

More particularly, Executive Order 12333 (section 1.6) on United States Intelligence Activities requires the heads of intelligence agencies to “report to the Attorney General possible violations of Federal criminal laws by employees and of specified Federal criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department, agency, or establishment concerned….”

The unusual term “crimes reports” derives from those procedures, which are set forth in a 1995 Memorandum of Understanding (MOU): Reporting of Information Concerning Federal Crimes, signed by Attorney General Janet Reno and the heads of six other agencies.

Though it is rarely cited in public discussions of leak policy, this MOU provides the structural framework for intelligence community reporting to the Justice Department regarding leaks of classified information, among other potential crimes.

This Agreement requires each employee of the Agency to report to the General Counsel or IG facts or circumstances that reasonably indicate to the employee than an employee of an intelligence agency has committed, is committing, or will commit a violation of federal criminal law.”  Then, “If a preliminary inquiry reveals that there is a reasonable belief for the allegations, the General Counsel will follow the reporting requirements” for submission of “crimes reports.”

Intelligence agency employees are also required to report to the General Counsel of their agency information about certain violations of criminal law that are committed by persons who are not employees of an intelligence agency– specifically including “unauthorized disclosure of classified information.”

Crimes reports in such cases are to be submitted to the Department of Justice, which “shall maintain a record of all special crimes reports received from the Agency.”  If, in addition, the agency determines that no public disclosure of classified information would result from further investigation or prosecution of the matter, then it is also to be reported to the appropriate federal investigative agency.

“During the last several years, we have received roughly 50 crime reports each year of leaks to the media of classified information,” said Attorney General Janet Reno in June 2000 testimony before a closed hearing of the Senate Intelligence Committee.  (Although she said “crime report”, the preferred locution seems to be “crimes report.”)

“Because of the large number of leaks and the recognition that the Department and the FBI have limited investigative resources, intelligence agencies do not request criminal investigations of every unauthorized disclosure of classified information,” she said. “Instead, they request investigations of the most damaging leaks, usually around 20-25 cases a year for the last several years. We have opened investigations into almost all of the leaks requested by the victim agencies.”

However, AG Reno explained, “before opening a criminal investigation, the Criminal Division generally requires the agency requesting the investigation to submit the answers to eleven specific questions regarding what was leaked and who had access to it…. We believe that the eleven questions are essentially the equivalent of filing a police report.  They provide the information we need to determine whether a criminal investigation is likely to be productive and, if so, where to start.”

A copy of the DoJ Media Leak Questionnaire with the eleven questions is available here.

The figure of 50 crimes reports per year noted by the Attorney General in 2000 is consistent with George Tenet’s 1997 statement that crimes reports on leaks were being filed “every week.”

But a CIA Inspector General report in 2000 (on the handling of classified information by CIA director John Deutch) said that “Records of the [CIA] Office of General Counsel indicate there were an average of 200 written crimes reports submitted to DoJ each year for the period 1995-1998.”

If that is correct, then presumably the larger figure includes reports of federal crimes other than unauthorized disclosures.

Between September 2001 and February 2008, the Federal Bureau of Investigation initiated and closed the investigation of 85 reported leaks of classified intelligence information, “all of which concerned unauthorized disclosures of classified information to the media,” FBI Director Robert S. Mueller III told the Senate Intelligence Committee in 2008.  “None of these cases reached prosecution,” he said.  But as of February 2008, “21 such cases are [still] under investigation.”  (“Classified Intelligence Leaks, 2001-2008,” Secrecy News, July 15, 2009).

Between 2005 and 2009, U.S. intelligence agencies submitted 183 “referrals” to the Department of Justice reporting unauthorized disclosures of classified intelligence.  Based on those referrals or on its own initiative, the FBI opened 26 leak investigations, and the investigations led to the identification of 14 suspects.  (“FBI Found 14 Leak Suspects in Past Five Years,” Secrecy News, June 21, 2010).

Though it is hard to be certain, the most sustained and prolific leaking of Top Secret and compartmented information may have occurred during the late 1990s when such leaks appeared every few days in the reporting of Washington Times reporter Bill Gertz.

“It’s getting a little tiring to see this constant source of leaks to the Washington Times of classified intelligence documents,” State Department spokesman Nicholas Burns told the Weekly Standard in an otherwise admiring profile of Mr. Gertz in 1996. (“He Drives Them Crazy” by Matthew Rees, December 1, 1996.)

No arrests or prosecutions resulted from that “constant source of leaks,” though it eventually diminished.

Meanwhile, the current Congress is still considering new constraints on disclosure of classified information that go well beyond anything the executive branch has requested or considers prudent.

Robert Litt, the general counsel of the Office of the Director of National Intelligence, recently expressed some criticism of the congressional anti-leak initiative.

“We have discussed with the Intelligence Committee our concern that some of the proposals in their legislation really would not have any deterrent impact or punitive impact on leaks, and might in fact have an adverse impact on the free flow of information to the American people,” Mr. Litt told an American Bar Association meeting last month.

But it is not clear whether the Senate Intelligence Committee, which has not held an open hearing in almost a year, would be moved by appeals to “the free flow of information to the American people.”

2 thoughts on ““Crimes Reports” and the Leak Referral Process

  1. Interesting. Of the eleven questions in the DoJ Media Leak Questionnaire, doesn’t the government usually maintain that b, c, e, f, g, h, j and k are irrelevant when discussing culpability for unauthorized disclosure of classified information?

  2. I think DoJ may argue that these considerations are legally irrelevant. Yet they may be highly relevant for practical purposes– i.e. in deciding whether a successful investigation of the leak is feasible or likely, and whether the case will be vulnerable to challenge in court should it ever get that far.

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