Column: A Lesson About Leaks: It’s Not So Simple

Friday, September 27, 2013
The FBI needed access to the telephone toll records of Associated Press reporters to identify who had leaked to one of their reporters. The information, delivered on May 2, 2012, forced the end of a secret CIA operation in Yemen that had provided valuable intelligence against al-Qaida in the Arabian Peninsula and promised more.

It was among the most destructive press leaks in years because it came during a joint clandestine operation with British and Saudi agents, some of whose lives were put at risk.

A year of investigation followed the first story, on May 7, 2012, that disclosed the leaked Yemeni operation. Over nearly 12 months, it involved 550 interviews and a review of tens of thousands of documents, but had not led to the leaker.

Justice Department regulations call for a delay before going directly after media in special cases, so it was in April 2013 that Deputy Attorney General Jim Cole signed off on subpoenaing telephone records for 20 AP phone lines.

The records covered six weeks between April and May 2012. And within days, authorities were able to link one AP reporter’s toll records to the source. On Monday, months after making that link, Justice announced former FBI bomb technician Donald John Sachtleben, 55, was the leaker.

It also disclosed that on Sept. 19, Sachtleben had signed and filed a petition to plead guilty to unlawfully disclosing to an AP reporter that a bomb built by a Yemeni terrorist was in the hands of U.S. intelligence.

The case is worth reviewing because the media are again pressing Congress to approve legislation for a shield law that could have added months, if not years, to solving this case. A draft bill, the Free Flow of Information Act, was approved by the Senate Judiciary Committee on Sept. 12 and is on the Senate calendar.

A provision in the bill would have required Justice to inform the AP of the phone records subpoena, giving it the chance to object in federal court. The proposed bill does allow an exception to giving notice for 45 or up to 90 days, but only after Justice proves to a federal judge “by clear and convincing evidence that such notice would pose a substantial threat to the integrity of a criminal investigation, a national security investigation or intelligence gathering.”

Justice’s own regulations allowed it to delay for 45 days telling the AP what it had done. After learning on May 10 that its phone records had been reviewed, AP President Gary Pruitt called the action “unconstitutional,” adding Justice was “acting on its being the judge, jury and executioner in secret.”

On Monday, an AP spokesman, Paul Colford, said he would not discuss the case.

It took 15 months to conclude the leak case, but it could have taken longer if the FBI had not already been investigating Sachtleben in May 2012 for alleged distribution of porn.

Ironically, on May 2, 2012, at the time the former FBI bomb expert was in Quantico, Va., disclosing classified details to an AP reporter, two FBI agents were outside Sachtleben’s Carmel, Ind., home conducting surveillance in the porn case.

The next day, a federal search warrant was issued for Sachtleben’s home, and the search took place May 11, 2012. Meanwhile, the AP story had caused a major uproar because of the leak, and the hunt for the leaker had begun.

Without knowing about Sachtleben’s role in the leak, FBI and Indiana law enforcement personnel took evidence from his computers and stored media that showed about 30 images and video files containing child porn. Sachtleben was arrested that day on pornography charges.

Also seized then was a CD/DVD with a 2006 CIA secret intelligence report. Nothing was made of it then because it did not relate to the porn investigation.

It may not have been until July 9, 2013, that the FBI, having linked Sachtleben to the AP and secured a warrant for a more exhaustive search of his computers, cell phones and other material in their possession, put together its leak case.

As U.S. attorney for the Southern District of Indiana said Monday that “all the evidence that was ultimately used to confirm ⅛Sachtleben’s⅜ involvement” in the national security case was obtained through the earlier seizure.

What do we learn from all this?

∎  All leakers of serious national security information are not whisleblowers. In this case, it appears that Sachtleben had a three-year, close relationship with an AP reporter with whom he had previously shared information about terrorist plots and FBI analysis of explosives.

∎  The government needs leeway in leak investigations and the benefit of the doubt with regard to forcing immediate disclosure when a subpoena is issued for things such as media phone toll records. A media company fighting such a subpoena in court could lead not just to an investigation’s delay but possibly the destruction of records. It did not happen in this case because investigators already possessed Sachtleben’s cell phones and computers.

∎  The media and Congress should again think about defining through legislation a reporters’ privilege rather than continuing to leave it to the courts to determine the boundaries. This is the way that the privileges for attorneys, doctors, religious personnel and even social workers have been developed.

∎  There doesn’t seem to be a dropoff in leaked classified information.

Walter Pincus reports on intelligence, defense and foreign policy for The Washingon Post and writes the Fine Print column.

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