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- James Goodale
First Amendment attorney - John Miller
Assistant director for public affairs, FBI - John McLaughlin
Former deputy director, CIA - Brian Ross
Chief investigative correspondent, ABC News - Tasia Scolinos
Director of public affairs, Justice Department - David Szady
Former assistant director of counter-intelligence, FBI
Let's get a couple things clear now, because we've been spending a lot of time talking about the government and the press and the lack of a relationship between the two. I think the government should investigate those leaks [about secret CIA prisons], because the government ought to know what its employees are [doing]. If they're leaking, that's against governmental policy. The government has every right to investigate and punish by loss of employment those people who leak, because when you go to work for the government, that's part of your deal.
For years, by the way, generations, the government has investigated leaks. What's changed is that the government ... appears to be looking at the press as well as itself. I think it should look at itself. And it's right to rev up those investigations, wrong to put the press into that relationship.
When you get down to those cases, a referral comes in the BALCO case, it's [from] a judge who says, "I'm running this case; this information is part of my court; I demanded that it stay sealed, and somebody has handed it out, and I want to know who."
In that case, whether you're the Department of Justice or the FBI, you don't turn to the judge and say, "Well, find out yourself." You say, "We have a legal mandate, an obligation to investigate that." You go forward to the best of your ability to find out, because that's your obligation. This is in some ways a rub, a bit of friction between the judicial branch, the executive branch, the Fourth Estate. That is not necessarily new, but I think we're seeing more manifestations of it. That is because there is an awful lot more press now than there ever has been before in our lifetimes, churning out an awful lot more information. And where you see those frictions, it becomes a test of commitments.
What is the commitment of government people to uphold their obligations to keep those secrets if they've taken an oath to do so or are required by law? What is the commitment of those people who unearth that information and decide, with their eyes open, to publish it and to take the risk that comes with that in terms of, "Will there be questions asked about how I obtained it?," and, "Will I be willing to answer them?" And then [what is] the commitment of the investigators who have to sort that out?
Mark Corallo, who was at the Justice Department [as director of public affairs], has said to us -- because he was in the process of approving some of these things -- that the subpoena in BALCO would have never been approved under Attorney General [John] Ashcroft; that this is a step beyond. This is a change of policy. This is a new Justice Department that is looking for leakers, whether it's national security or, in this case, criminal cases.
I suggest you ask that question of the Justice Department. But the fact is that to obtain records about a reporter, to ask those questions, to take any of those steps requires, in this case, a judge to refer to a U.S. attorney to bring that to the assistant attorney general in charge of the criminal division in Washington, who had to bring it to the deputy attorney general of the United States and then ultimately to the highest law enforcement official in the land.
That shows that these decisions are not taken lightly. Nor is it a casual process that prosecutors and investigators can just haul reporters in and ask them these things.
... When you hear of a leak, ... what's your reaction? What do you and your colleagues do?
Well, the director of central intelligence ... has a legal responsibility to protect intelligence sources and methods. In a sense, the head of the intelligence community has no choice when a leak occurs, if it appears to threaten sources and methods of intelligence collection, [but] to file a crimes report. These were filed quite frequently when leaks occurred, really almost automatically. ...
Did you have a meeting where you review these things?
Typically a meeting on something like that would not come up to the director or the deputy; typically we would be informed that the event had occurred, and the general counsel had filed a crimes report. On something of extraordinary importance there might be some discussion of it, but for the most part, this is just part of the business. ...
Does the CIA consider that by filing a leak investigation, it may confirm the classified information is true? …
Yeah, that's very interesting. I think that's the dilemma you face in filing a crimes report, because by implication you're saying something of a classified nature that has at least a core of truth to it has been leaked, and therefore you want it investigated. ...
I don't think that I would think of the leak investigation confirming every single detail that's in the report that has offended here. I would say to someone, "Well, there's enough there," without explaining exactly what it was to justify an investigation. But in many cases, the information that is in the paper or in some unauthorized spot is only partially correct. ...
They're looking for a leak inside. I've learned there's only an investigation if the story is true.
Of course. It's a kind of confirmation: You know you've hit a nerve and you've reported something that is true. ...
Has the knowledge that your investigations may be under investigation changed the way you work?
I have to be more careful. There are more face-to-face meetings, fewer phone calls, if any. A lot of people now don't want to talk on the phone at all. So we travel more.
It costs ABC more?
Small price to pay. ...
[Have] you been told your name was given up by your source in a leak investigation?
I've had it happen both ways. I've had sources say, "Yes, I've talked to Brian Ross," and I've had sources who have talked to me deny it.
Have they come to you and said, "They just questioned me about you"?
At that point they're not calling, you know? They're not making any phone records. There's a lot of pressure, certainly, on people who are sources inside the CIA, inside the FBI, inside the government. That, people have to accept, I think, when they become sources. They have to know they may come looking to find out who the sources were. Nothing I can do about that. They're not going to get the name from me. That's my guarantee. ...
... Generally speaking, why leak investigations?
The department looks at every case on a case-by-case basis, and some of those cases are going to be leak investigations. Some of them are going to involve other issues. They're ongoing cases, so I am limited [in] what I can say about them. ...
The attorney general has commented on this issue many times, and the department's and the government's first way that we would want to approach these issues is to go to the media, first of all, and say: "We would really prefer that you not run this particular story. It is going to hurt the national security of our country." If that kind of exchange with them doesn't work, the first priority, when you're doing a leak investigation, is to really look at the leakers themselves. These are people who, for the most part, would have security clearances, and when you have a security clearance, it's by law: You break the law if you share that with people who are not authorized to see that information.
So your first priority with the leak investigation is to focus on those folks. When it comes to members of the media, sometimes there will be information that will be helpful that only they would have, that would be helpful to those kinds of investigations. But again, it's a case-by-case basis, and I think the department looks at each one of those very, very carefully.
... So you are our chief counterspy?
You could put it that way, yes. ...
In that role, would you be in charge of leak investigations?
Yes. The FBI runs leak investigations when those leaks involve classified information.
How do you start a leak investigation? I mean we read about them in the paper, but we have no idea where -- actually what goes on.
Well, first of all, you have a victim agency: the owner of the information, those who classified it. What they have to do is file a report with the Department of Justice that consists of 11 questions that have to be answered.
And those questions go from, was the material properly classified? Is that information known? Was the information that leaked accurate compared to what the actual classified information is? What was the damage to national security? How many people possibly had access to that information? And several other questions.
So those questions are answered by the victim agency, and they're sent to the Internal Security Division of the Department of Justice, who looks at that information and decides whether or not a leak investigation should be opened. If the Department of Justice thinks that an investigation should be opened, then it's sent over to the FBI. It comes to the counterintelligence division of the FBI, because ... the FBI's counterintelligence division runs espionage investigations or investigations that involve intelligence. ...
And it comes to the counterintelligence division because the information in question was classified in some sense?
Yes. And there is a belief that somebody leaked information that was legitimately and properly classified.
So this is the same kind of referral that takes place, whether it's a leak of classified information to a lobbyist or a spy as it is to a journalist?
... First of all, it's not espionage [in] the classic sense, where you're giving classified information to a foreign power. You're giving classified information here to somebody in the media, which is illegal. It's not espionage as we're talking about it here with spies. But it is worked, if you will, on a criminal investigation under the espionage statutes: unlawful possession; unlawful distribution; unlawfully giving this information to somebody who should not have access to it. ...
And the information has to be accurate?
Yes.
So if you leak inaccurate information, there's no leak investigation?
Well, that's right. The determination may be made that there's no sense in investigating something because the information is not accurate. It's not real information, if you will.
So when the government announces a leak investigation and it comes to your office, it's confirming that the report in the newspaper, for example, or on television was true?
In-- yes. Indirectly, yes.
That's one way to fact check.
Yes.
And how do you conduct these investigations? I mean, it comes to your office, and what would you decide to do then?
Well, first of all, remember, the decision to open an investigation is made by the Department of Justice. That paperwork is passed to the FBI [and then] to the counterintelligence division of the FBI, ... and an investigation is started by the FBI. Most of these investigations are run by our Washington field office in Washington, D.C., because that's where most of the leaks take place. ...
Does it go to a special squad? Is there a group that specializes in this kind of stuff?
Well, there's not necessarily a media-leak squad. Obviously there are intelligence squads within the Washington field office -- counterintelligence squads, espionage investigative squads. So what would normally happen is you would take a number of agents and bring them together to work on a particular media leak case.
Now, in the cases that we're interested in right now, involving national security information both with The New York Times and The Washington Post, it's our understanding this investigation is pretty benign as a leak investigation?
The government looks at it as a very serious leak of sources and methods. As a result of that, if the Department of Justice has made a finding that there should be an investigation conducted, then one has been initiated. Once that's initiated, [the] Washington field office is, as I said, given the investigative responsibility for that investigation. Then, depending upon the size of the potential knowledge base and also depending upon the time elements involved in this will help determine the number of agents that have to be put on a particular investigation.
So if we hear 20, 30 agents are working this around the country?
Well, it's not necessarily full-time 20, 30. Those aren't accurate numbers necessarily. But you may put a larger number of agents on an investigation initially in order to get the initial interviews done and then start whittling that down as you start focusing in on where the possible leak may be.
You got interviewed, right?
Yes, yes. If you were briefed, if we were going to run the investigation, or the FBI was going to run it from its counterintelligence division, if people in there happened to be briefed into a certain program that was leaked, and there's a possibility that you could be the leaker, as a result of that, you would be interviewed or talked to.
And what do they ask you?
... "Did you leak this information to the media?" would be a very direct question.
And they expect you to confess?
No. Well, that's part of the problem in investigating media leak cases that we can get into, because they are very difficult to investigate. First of all, most of the investigations that are done are purely ... research and record checks and things of that sort.
Since they are a criminal investigation, you could have access to using sophisticated techniques. But very rarely does that happen, because you're running into a lot of different issues. A lot of different elements are coming into the investigation.
What do you mean by sophisticated techniques?
Well, if you were going to use any type of surveillances or things of that sort.
So you mean electronic surveillance is possible?
It's possible, but it's very unlikely that something like that would be [used], because you're talking about dealing with the media. You're talking about the public's right to know. You're talking about the Constitution, the First Amendment. And you're talking about the fact that the subject in these cases are not the media representatives. The subjects are the person [or] people who gave the information to the media. There's a fine line between the public's right to know and classified information and things of that sort.
Do you polygraph people?
Yes. People can be polygraphed, but that's also an interesting technique that's not always used. ...
What you have to remember if you're running a criminal investigation, when you start using the polygraph, that would have to be done by the FBI, and it would have to be done in a voluntary basis, because if you're in an organization that requires a polygraph for employment, then you're entering into a situation where they're compelled to take a polygraph for employment, and therefore that information is not necessarily admissible in court.
It's complicated.
It can be. Media investigations are very complicated. You have issues that come into play. It can be politics. You can have an individual who's a leaker who has whistleblower status or is going to get whistleblower status. And what does that all imply?
That's why there haven't been a lot of successful prosecutions with media leaks. And that's why, in a lot of respects, a lot of agencies look at administrative actions, administrative inquiries, processes that are in place in order to deal with leaking. And again, remember, when we're talking about the FBI being involved, it is classified information, and it has been determined that that information has been properly classified.
You mean the information that appeared in the newspaper or other media was properly classified?
That's correct. And it's accurate. Remember that, too. ... If you were prosecuting somebody and the information isn't accurate, why are you bothering with it? It doesn't make any sense.
But if you're trying to plug leaks, if you will, of any kind --
Right. You have to put this in perspective. Leaking is a serious issue, particularly when you look at the intelligence community and you look at sources and methods. These are serious issues that have to be dealt with.
But around those serious issues come all of the other factors that can be mitigating in a certain way. Recently the FBI had a case where an individual, [former Defense Intelligence Agency analyst] Mr. [Lawrence] Franklin pled guilty to giving information that eventually would go over to the Israeli government. The judge in that case said, "No, you may have all of the intentions in the world that seem good for you, that this is the thing to do, but an individual by themselves doesn't have the right to make that particular decision."
Now remember, we're talking classified again, not information that goes to fraud and abuse or political situations or things of that sort. ... The information is clearly and properly classified. It can be declassified by those who classify it, and it could be given out at that particular time. But as an individual, you don't have the right to make those decisions and give away what is clearly classified information.
Even if he's perceived as being a whistleblower?
That complicates the issue if somebody is given whistleblower status. But even with that status, to give away properly classified information that jeopardizes sources and methods, that jeopardizes operations or things that the country is doing in the intelligence world or counterterrorism world or counterintelligence that will be damaging to the United States, you don't have the right to give that information away.
Even if you're describing something that's potentially illegal?
Fraud and abuse and illegal activity -- that's where it starts to get murky and complicated, exactly. Now remember, let's go back to the 11 questions. You have to clearly define in those 11 questions when you answer them. What the information was? Was the national security of the United States damaged? Was it properly classified? And so on and so forth, so that you're getting into the Department of Justice looking at the situation, what that information involves, what type of operations, what type of intelligence or sources it involves, and can make that type of determination. ...
Has there ever been a successful prosecution?
Well, back in the '80s, there was a prosecution of an individual who gave information to [a] military magazine, gave pictures and whatnot. That was successfully prosecuted. I believe the individual pled guilty.
That was a journalist?
Yes, I think so.
Journalist who was in possession of classified material?
Yes, as I recall. And gave that to Jane's [Defence] Weekly magazine or whatever, and either pled or was successfully prosecuted. But in this area, there aren't a lot of successful prosecutions. And when you look at the issues involved, you can see why. ...
You're running into the right of the free press, the public's right to know; you're running into First Amendment rights issues. So the issue becomes looking at the subjects and not the reporters or those involved in the media. You're not focusing on those people.
Now, there can come a time or a point when a judge may decide that the reporter's responsibility is such that they have to cooperate with an investigation. Also, in these investigations, just so that we're clear, interviews that are done in these investigations are usually approved by the Department of Justice.
The closer you get to interviewing somebody in the media, the more oversight you're having by both those involved in the FBI at headquarters for the investigation, but also the Department of Justice. ... Those aren't given lightly, that authority, for all the right reasons.
Is this why your colleagues tell me they hate these cases?
Right. If you're an agent who runs investigations, if you're an agent who looks for conclusion on the type of investigations you're running, these are very complicated; they're very complex; they're very involved. And they usually result with no end. In other words, in the minds of my colleagues, my ex-colleagues, you would say, "No prosecution."
Your colleagues say that the only time these cases really get pushed is when someone with high authority -- due, usually, for political reasons, they say -- really wants to push the case.
That's not true. Depends what you mean by higher-ups.
Director of the CIA.
Right. OK.
President of the United States.
Right. No one has been more victimized probably by leak cases over the years than the CIA, for example. Remember, though, the CIA still has to answer those 11 questions. They still have to be given to the Department of Justice, where that decision about whether to move forward with an investigation is made at the Department of Justice.
But the seriousness of the allegation is weighed also, the seriousness of the type of information that's being leaked and that sort of thing. So I think it's a fair and balanced process. ...
And your office got the referral in the Valerie Plame case?
Initially, yes. There's still prosecution outgoing in there, so commenting on it is difficult.
No one's been charged under the [Intelligence Identities Protection Act] in that case as of today. What makes that particular law difficult in terms of prosecuting somebody?
Well, there haven't been that many cases involving this particular leak of information or the identity of undercover CIA officers to begin with. I don't think it would be any more difficult than anything else. I think everybody would admit and everybody would acknowledge that the leaking of the identity of an undercover CIA officer is an extremely serious matter, particularly given the world situation we live in now, and we're actually talking about life and death. ...
When you got that referral, was your reaction, "Well, we're never going to get anywhere with this case," or, "This is another one where we're going to have to probably subpoena reporters and it won't happen"?
Any time you get a media-l