Janet Reno on Leaks (2000)

The steps by which the Justice Department conducts investigations of unauthorized disclosures of classified information (“leaks”) were described by then-Attorney General Janet Reno in 2000 testimony before a closed hearing of the Senate Intelligence Committee.

At a moment when some, such as Senator Jon Kyl, are proposing to enact new statutory penalties against leaks, it is noteworthy that the Attorney General concluded that such penalties are unnecessary.

“We believe that the criminal statutes currently on the books are adequate to allow us to prosecute almost all leak cases,” she testified.

Significantly, “We have never been forced to decline a prosecution solely because the criminal statutes were not broad enough.”

(A similar judgment was offered by Attorney General John Ashcroft in a 2002 report to Congress: “I conclude that current statutes provide a legal basis to prosecute those who engage in unauthorized disclosures, if they can be identified.”)

Ms. Reno’s testimony, formally released under the Freedom of Information Act last week, provides perhaps the best single overview of the Justice Department’s handling of leak cases, from the initial “crime report” (sometimes called a “crimes report”) that advises the Justice Department of the leak, to the agency’s submission of answers to eleven specific questions about the leak, to the difficulties of conducting an investigation and the Department’s decision whether to prosecute.

“While we are prepared to prosecute vigorously those who are responsible for leaks of classified information,… I also want to say that the Department of Justice believes that criminal prosecution is not the most effective way to address the leak problem,” she said.

“In addition to the difficulties of identifying leakers, bringing leak prosecutions is highly complex, requiring overcoming defenses such as apparent authority, improper classification, and First Amendment concerns, and prosecutions are likely to result in more leaks in the course of litigation.”

“In general, we believe that the better way to address the problem of leaks is to try to prevent them through stricter personnel security practices, including prohibitions of unauthorized contacts with the press, regular security reminders, and through administrative sanctions, such as revocation of clearances,” she told the Senate Intelligence Committee.

The Committee proceeded to endorse a new anti-leak statute against her advice. It was enacted by Congress and then vetoed in November 2000 by President Clinton.

The Justice Department Office of Public Affairs released the Reno testimony in October 2003 to reporters from the Washington Post and the Associated Press, who briefly quoted it in passing. But others who requested a copy, including Secrecy News, were told to file a Freedom of Information Act request.

Following a pointless and wasteful three-and-a-half year “review” by the Justice Department, the testimony has now been formally released under the FOIA without redaction.

But leak controversies remain ever green, even aside from the proposed Kyl Amendment, the ongoing prosecution of two former AIPAC officials for allegedly mishandling classified information, and so on.

The New York Sun reported that Rep. Tom Davis, the ranking Republican on the House Oversight Committee, rebuked the Justice Department last week for failing to properly account for leak investigations that had been terminated. See “Gonzales Said To Stonewall a GOP Query” by Josh Gerstein, New York Sun, March 12.