Executive Order 12333, as amended, requires agencies in the Intelligence Community to report possible violations of Federal law by their employees to DOJ, which includes violations of the statutes relating to the unauthorized disclosure of classified information. These crime reports identify, among other things, the classified information that was leaked and the level of classification of the leaked information. DOJ’s National Security Division (NSD) then assesses whether an investigation should be opened as a result of the reported leak. As part of this assessment process, DOJ requires the reporting agency to answer a series of specific questions to help evaluate whether an investigation would be productive. Should an investigation be deemed necessary, these questions are useful in guiding the course of that investigation. For example, DOJ usually has the referring agency specify in its crime report whether it would like DOJ to investigate the leak. Although the FBI has the authority to investigate a leak regardless of whether the reporting agency desires such an investigation, eliciting the reporting agency’s determination of which leaks are sufficiently damaging to warrant an investigation helps us assess how best to use limited investigative resources.
In addition to responding to referrals, the FBI opens investigations whenever we become aware of a leak that we believe is significant, even without a referral. Similarly, we occasionally open an investigation based solely on an oral request from a senior Intelligence Community official. These investigations are conducted by the FBI in consultation with the NSD, which oversees and coordinates all leak investigations. The FBI and NSD regularly brief the reporting agencies on the status of these investigations.
Despite the experience and cooperative approach of the investigating parties, leak investigations may not progress to the prosecutorial phase for a number of reasons. It is common, for example, for the information that was leaked to have been appropriately disseminated throughout the federal government for official use, making the identification of the leak’s source very unlikely. Response: complicating investigations of unauthorized disclosures of classified information to the media is the fact that there are usually only two people who know how a leak occurred and the identity of the leaker – namely, the leaker and the reporter to whom the information was leaked. We have interpreted DOJ’s formal policy on obtaining information from members of the news media as requiring that such leak investigations focus on potential leakers rather than reporters. While this policy appropriately balances the importance of First Amendment freedoms with the strong security interest in keeping classified information from disclosure, it necessarily limits the prosecutor’s access to the reporter who received the sensitive information. In the rare case in which DOl issues a subpoena to a reporter for information about the source of a leak, the information is not necessarily produced. There are often lengthy legal challenges to the subpoena, which on a rare occasion can entail a reporter electing to serve jail time for contempt rather than comply with the subpoena. In light of these limitations and the practical realities of leak investigations, the leaker often cannot be identified beyond a reasonable doubt, as is required for a successful prosecution.
When a prosecution cannot be undertaken or is not successful, administrative action by the leaker’s agency may be an appropriate course of action to ensure that the leaker is prevented from again breaching the government’s trust through additional leaks. While the FBI is not involved in pursuing these administrative actions, we are authorized to share with the referring agency the results of our investigations (with limited exceptions such as access to certain grand jury information).
While DOJ and the FBI receive numerous media leak referrals each year, the FBI opens only a limited number of investigations based on these referrals. In most instances the information included in the referral is not adequate to initiate an investigation. When this information is sufficient to open an investigation, the FBI has been able to identify suspects in approximately 50% of these cases over the past 5 years. Even when a suspect is identified, though, prosecution is extremely rare (none of the 14 suspects identified in the past 5 years has been prosecuted).
Ronald Weich, Assistant Attorney General