Security Leak Investigation Expected To Be Slippery

Late last week the attorney general, under pressure from lawmakers, appointed two prosecutors to look into leaks of national security secrets. But leak cases are notoriously difficult to prosecute, and the prospects for these cases are problematic.

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AUDIE CORNISH, HOST:

It's ALL THINGS CONSIDERED from NPR News. I'm Audie Cornish.

MELISSA BLOCK, HOST:

And I'm Melissa Block. The U.S. Attorney General Eric Holder has appointed two prosecutors to investigate national security leaks. The leaks include information disclosed to a New York Times reporter about a computer virus attack against Iran and about efforts by the U.S. and its allies to thwart a terrorist plot based in Yemen.

But it will be a rocky road for those prosecutors and NPR justice correspondent Carrie Johnson joins us now to tell us why. And, Carrie, let's start with the prosecutors. They're not special prosecutors. They're not independent counsels. Why don't you explain the difference?

CARRIE JOHNSON, BYLINE: Right, Melissa. These are U.S. attorneys from Maryland and the District of Columbia and, as such, they're going to operate within the traditional Justice Department structure. That has not made everybody happy. To wit, prominent critic, John McCain, senator from Arizona, has called for more independence, but the Justice Department and the White House say that these prosecutors, these U.S. attorneys are going to operate with a lot of independence and an outside prosecutor is not necessary at this time.

There is a provision in the federal regulations that would allow the attorney general to appoint what's called a special counsel. The last time the Justice Department did that was when Patrick Fitzgerald, the U.S. attorney in Chicago, was appointed to investigate the leak of the identity of CIA operative Valerie Plame and that was during the Bush years, of course.

And some folks may remember, during the Clinton administration, the Independent Counsel Statute became so famous. Independent counsel Ken Starr was investigating White Water and then Monica Lewinsky and there were multiple other independent counsels. But that law was allowed to expire in 1999 because people from both political parties thought that they were pretty much doing fishing expeditions.

BLOCK: Well, remind us, Carrie, about the history here. The track record for prosecutions in leak cases like this one, how successful have they been?

JOHNSON: Not very, Melissa. The Obama administration, more than any other, has prosecuted leaks - six cases in the Obama administration. One of them ended in a misdemeanor plea, which was widely perceived as a loss for the government. Another is still on appeal before it even went to trial because the issues are so complicated and hard fought. And then a third one is making its way to trial, but ever so slowly.

And it's worth noting that, all along the way, the White House and the Justice Department have been the subject of fierce criticism from media groups and civil liberties groups who don't want any leak prosecution.

BLOCK: And why are these cases so difficult to prosecute?

JOHNSON: For lots of practical and legal reasons. First of all, many people across many federal agencies, states, justice, the FBI, the National Security Council at the White House and others, have access to this kind of sensitive information. And although the administration and any administration doesn't want to admit it, leaking is more or less standard operating procedure in most parts of Washington.

Finally, prosecutors face a big risk here, the risk of revealing more classified information in the course of prosecuting somebody for leaking.

BLOCK: So what should happen next? They've named the prosecutors. What now?

JOHNSON: The next step is that the U.S. attorneys and FBI agents who are working for them will try to compile a list of everyone who had access to this sensitive information. Then they're going to try to narrow down the list of suspects by looking for emails or other electronic records that could help them figure out who may be talking to reporters.

Eventually, they may try to interview federal workers and contractors who typically sign documents promising to keep these kinds of government secrets. And then, much later down the road, the administration, the U.S. attorneys could try to get access to reporters' information, emails, communications, but that requires a very high level of approval at Justice. In fact, the attorney general himself must sign off on that kind of request.

BLOCK: OK. NPR justice correspondent Carrie Johnson. Carrie, thanks so much.

JOHNSON: You're welcome.

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