Why Leakers Rarely Do Time

By Daren Fonda

It sounds like a tough law, but hardly anyone gets charged under the Intelligence Identities Protection Act. In fact, only one person is known to have been successfully prosecuted under the statute since Congress passed it in 1982 to shut down serial leakers like Philip Agee, a renegade ex--CIA operative who routinely unmasked spies in the 1970s. It is rarely invoked, in part because it was designed to stem not the epidemic of Washington security leaks but a specific and pernicious act: the deliberate revelation of a covert agent's identity.

The law is also seldom applied because it sets such a high burden of proof. Prosecutors must show that a leaker had access to classified information and knew that its release would unveil someone whose identity the government was trying to conceal. The law provides a mechanism to punish someone who demonstrates a "pattern of activities intended to identify and expose covert agents." The penalties: up to 10 years in jail and a stiff fine.

To convict someone involved in identifying Joseph Wilson's wife, prosecutors would need to prove that the leaker knew she was a covert agent, not just an employee of the CIA. Because of this standard, the law makes it difficult to nail an aide who heard at the water cooler that Wilson's wife was a CIA employee and told that to a reporter. In that case, a defense lawyer might successfully argue that the leaker's motive was not to blow her cover but rather to imply nepotism in Joseph Wilson's assignment to Niger.

Determining who said what to whom is a prosecutor's nightmare. Dozens of government employees probably knew that Wilson's wife, Valerie Plame, was a CIA operative, and any one of them could have leaked the information. "Absent a confession, it's almost impossible to prove these cases," says Jeffrey Smith, the CIA's general counsel during the Clinton Administration.

The reporters who know what happened are not likely to cooperate. Journalists are loath to break a promise of confidentiality to their sources. Moreover, under Justice Department rules, investigators may subpoena, wiretap or seize the records of journalists only with the Attorney General's approval and only after other investigative means have been exhausted. That's not to say it doesn't occasionally happen. In 2001 the Justice Department subpoenaed AP reporter John Solomon's home-telephone records without his knowledge in an effort to glean his sources in a case involving former Senator Robert Torricelli. Other attempts to discover journalists' sources have tended to fizzle because news organizations are willing to take the fight to the U.S. Supreme Court and have a body of case law behind them.

Justice Department officials have long complained that leak probes, as one put it, are a "fool's errand." The CIA sends the department about 50 requests for probes a year, of which 20 to 25 result in investigations. Almost all of these are closed without a suspect being named, much less a prosecution being sought. Since the results tend to be inconclusive, FBI and Justice Department officials often deride the exercise as a distraction from more vital antiterrorism and counterintelligence work. Some FBI agents say they resent investigating and intimidating other government employees. Former Attorney General Janet Reno summed up the prevailing view when she told Congress in 2000, "Criminal prosecution is not the most effective way to address the leak problem."

If prosecutors can't make a case under the strict standards of the Intelligence Identities Protection Act, they might find one in a cover-up. They could file perjury charges against someone for lying on an affidavit or giving false testimony. The burden of proof is not as high in such cases, nor are the penalties as severe. And it is a surer path for getting someone to pay for blowing a spy's cover. --By Daren Fonda. Reported by Viveca Novak and Elaine Shannon/Washington

With reporting by Viveca Novak and Elaine Shannon/Washington