The Obama administration may hold the record for the number of national security leak prosecutions, but leaks of classified information are nothing new. Mark Zaid, an attorney who has represented numerous individuals within the intelligence community on national security matters, says technology has increased the likelihood of being caught and prosecuted. Zaid recently spoke with U.S. News about what he calls the "over-excessive amount of secrecy" in government and why there should be more avenues for whistleblowers. Excerpts:
Are all leaks a threat to national security?
The executive order that defines what constitutes classified information as confidential, secret, top secret, assigns a specific damage assessment to the nature of that information. The reality of the damage may be a factor in sentencing, but not with respect to liability.
So how do you defend your clients?
What you have to do is challenge that the information was not properly classified. There are many things where our enemies actually know of what operation is being involved, but just the public doesn't, so you can argue that there wasn't really any damage because they already knew that that was happening, and then the damage is actually more a public perception damage than a national security damage.
What does it mean that there has been a record number of leak investigations in this administration?
The Obama administration has prosecuted more people than any other administration combined for the leaking of classified information. It is not as if prior administrations have not taken leak investigations very seriously; they have, I represented a number of people who were the subject of them. The issue these days is more technology, and the majority of the individuals who are being caught—caught in the sense of having evidence to prosecute—has been because of technology.
What's the most common form of leaking?
People have been E-mailing. Sometimes they're using encrypted E-mail because they think it's safe, but the government still has access through the service providers. The cases that have been prosecuted, pretty much every one of them has been because of E-mails.
Are sources of leaks often identified?
It's been generally very difficult, even when some of the articles have made it somewhat clear as to who a source might be. There's oftentimes no real proof that the individual was the source, and absent either the journalist, which very rarely if ever happens, revealing the information, the government needs for the source, him or herself, to admit to the leak, and that usually doesn't happen either. So what's left is the government finding an electronic trail that they can create at least a circumstantial case, and that's where most of the big prosecutions have been.
How could information leaks be stemmed?
Part of the problem is the classification system and the over-excessive amount of secrecy that has been applied to information in the government. Another significant problem is that there are often no viable paths for federal employees to take as national security whistleblowers. The inspector generals' offices often don't work well with this type of disclosure, and the Congress is so fractionalized by partisanship and lack of oversight of the [intelligence] community that those are dead ends as well. So many federal employees feel compelled that the only avenue that they have is to leak to the media. If the government could strengthen or create other avenues that individuals could go to, that would be far more preferable than additional anti-leak provisions.