Why Are There So Many Leak Prosecutions?
As is often remarked, the number of individuals charged with Espionage Act violations by the Obama Administration for disclosing information to the media without authorization is unprecedented and exceeds all previous cases in all prior Administrations combined. But why is that?
There are several possible explanations. One answer is that the sources of unauthorized disclosures are easier than ever to identify. The actual disclosure transaction, as well as the source-reporter relationship behind it, often leaves an electronic footprint (especially email and telephone records) that official investigators are increasingly adept at exploiting. Another explanation is that the voluminous and sometimes reckless disclosures published by WikiLeaks triggered a predictable intensification of efforts to track and punish leakers, along with the broader tightening of information security that seems to be the most enduring legacy of the WikiLeaks episode.
But yet another factor that is usually overlooked is that Congress has pressured the Administration to vigorously pursue leaks. Congressional leaders want leak prosecutions, and they want a lot of them.
At her May 17, 2011 confirmation hearing to be head of the Justice Department’s National Security Division (NSD), Lisa O. Monaco noted the role of the Senate Intelligence Committee in pushing the issue. “This Committee has… pressed the [Justice] Department and the intelligence community… to ensure that unauthorized disclosures are prosecuted and pursued, either by criminal means or the use of administrative sanctions,” she said.
After Ms. Monaco described each of the multiple pending leak prosecutions that were pending at that time, she was nevertheless asked (in pre-hearing questions) “Are there any steps that the Department could take to increase the number of individuals who are prosecuted for making unauthorized disclosures of classified information to members of the news media?”
Ms. Monaco told the Intelligence Committee that “the NSD has been working closely with the Intelligence Community to expedite and improve the handling of such cases.” She pledged to the Committee that it would be “my priority to continue the aggressive pursuit of these cases.” And so it has been.
The record of Ms. Monaco’s 2011 confirmation hearing before the Senate Intelligence Committee was published last month and is available here.
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