Leaks investigation

By Christopher B. Daly

The Times editors probably should have slapped an “Analysis” label on this piece (which it carries online, but not in today’s print version) or put in the Sunday Review section. In any case, Charlie Savage has an intelligent analysis of why “leaks” investigations so often come to nought.

He makes a key legal point here:

Many people are surprised to learn that there is no law against disclosing classified information, in and of itself. The classification system was established for the executive branch by presidential order, not by statute, to control access to information and how it must be handled. While officials who break those rules may be admonished or fired, the system covers far more information than it is a crime to leak.

Instead, leak prosecutions rely on a 1917 espionage statute whose principal provision makes it a crime to disclose, to persons not authorized to receive it, national defense information with knowledge that its dissemination could harm the United States or help a foreign power.

And he goes on to make the point that prosecutors have a difficult showing the harm that flows from disclosures of classified information. It is almost never the case that a news media participant in a leak will divulge real, active military secrets. Instead, the practice of leaking is usually someone’s way of trying to win or shape a policy debate. It is the pursuit of politics by other means.