Traitorgate

An interesting document:

Office of the Attorney General
Washington, DC 20530

October 15, 2002


The Honorable J. Dennis Hastert
Speaker of the House of Representatives
U.S. House of Representatives
Washington, D.C. 20515

Dear Mr. Speaker:

The President and I place deterring, detecting, and punishing unauthorized disclosures of U.S. national security secrets among our highest priorities, at all times, but especially in this time of war against terrorism of global reach. There is no doubt and ample evidence that unauthorized disclosures of classified information cause enormous and irreparable harm to the Nation�s diplomatic, military, and intelligence capabilities. They impair, especially, the Intelligence Community�s ability to provide essential support to U.S. national security policymakers and our military�s ability to provide for the national defense. We need an effective Government-wide program to curtail these damaging disclosures and to hold the persons who engage in unauthorized disclosures of classified information fully accountable for the serious damage they cause to intelligence sources and methods, military operations, and to the nation. Those who would break faith with the American people and disclose classified information without authority to do so will face severe consequences under the law.

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Although there is no single statute that provides criminal penalties for all types of unauthorized disclosures of classified information, unauthorized disclosures of classified information fall within the scope of various current statutory criminal prohibitions. See United States v. Morison, 844 F.2d 1057 (4th Cir. 1988). It must be acknowledged that there is no comprehensive statute that provides criminal penalties for the unauthorized disclosure of classified information irrespective of the type of information or recipient involved. Given the nature of unauthorized disclosures of classified information that have occurred, however, I conclude that current statutes provide a legal basis to prosecute those who engage in unauthorized disclosures, if they can be identified. It may be that carefully drafted legislation specifically tailored to unauthorized disclosures of classified information generally, rather than to espionage, could enhance our investigative efforts. The extent to which such a provision would yield any practical additional benefits to the government in terms of improving our ability to identify those who engage in unauthorized disclosures of classified information or deterring such activity is unclear, however.

Regardless, the vital need in protecting national security secrets must include rigorous investigation of unauthorized disclosures of classified information to identify the individuals who commit them, and vigorous enforcement of the applicable administrative, civil, and criminal provisions already available.

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The responsibility for correcting the problem of unauthorized disclosures of classified information falls squarely upon the shoulders of all Government officers and employees who are privileged to handle classified Government information. Department and agency heads have substantial authority to address the problem of persons who engage in the unauthorized disclosure of classified information within their own organizations through suspension or revocation of clearances and procedures to terminate employees in the national security interests of the United States. They have limited authorities with respect to unauthorized disclosures outside their own organizations. In most of the few cases in which a person who engaged in an unauthorized disclosure of classified information has been identified, the sanctions applied have been relatively inconsequential in comparison to the damage caused as a result of the unauthorized disclosure. In most cases, identifying the individual who disclosed classified information without authority has been difficult, at best.

The risks of unauthorized disclosures of classified information associated with the large numbers of people with access to such classified information must be managed intelligently, appropriately, and effectively. Managing this risk requires strict enforcement of the principle that no individual should have access to a particular national security secret unless the person has the requisite security clearance and access approval and needs to know the secret to perform the individual's official duties. Discipline with respect to the extent of dissemination of particular classified information will help reduce the opportunities for faithless individuals to engage in unauthorized disclosure of classified information, and will underscore for individuals who have the privilege of access to classified information that they have personal accountability and legal liability for the protection of the information.

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RECOMMENDATIONS

First, the Executive Branch must activate a wide range of administrative measures to significantly improve our capacity to stem the practice of unauthorized disclosures of classified information.

Second, all departments and agencies that originate or handle classified information must take aggressive steps and use all appropriate means at their disposal � individually and collectively � to identify and impose sanctions on those who reveal classified information without authority.

Third, policy and legal officials in the Departments of Defense and Justice, and the Director of Central Intelligence (DCI) for the Intelligence Community, must work together to improve enforcement of existing laws. Likewise, these officials must work closely with Congress to ensure that we have the necessary legal authorities to enhance our ability to deter such unauthorized disclosures and to identify and hold accountable those who, without authority, reveal classified information, both for violations of their duty to the United States and for any violations of law. Until those who, without authority, reveal classified information are deterred by the real prospect of productive investigations and strict application of appropriate penalties, they will have no reason to stop their harmful actions.

Thus, specifically, I recommend that:

Departments and agencies that originate, disseminate, or handle classified information should continue to use their authorities to undertake immediate and aggressive investigations of unauthorized disclosures of classified information utilizing all appropriate and available investigative tools and techniques to identify the perpetrators.

Departments and agencies should continue to report these crimes to the Department of Justice under established reporting requirements, and should not delay their internal investigations pending the Department�s prosecutorial decision on the matter, unless the Attorney General directs otherwise in a particular case.

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Upon identification of a person who engaged in an unauthorized disclosure of classified information, the agency concerned should refer the matter to the Department for a prosecutive decision.

The Department of Justice will be prepared to prosecute all cases where the evidence and circumstances warrant, and, as appropriate, provide regular status reports to the affected departments or agencies.

Departments and agencies should promptly notify the Department of Justice when a current or former employee or other person with a contractual or other legal obligation to the Government to protect classified information engages in an unauthorized disclosure, and the Department of Justice should vigorously pursue civil enforcement actions against such individuals.

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The Executive Branch should continue to engage Congress, the media, and the American people, to increase awareness of the damage to national security resulting from unauthorized disclosures of classified information and the need to improve the federal government�s classified information security practices and enforcement of laws concerning unauthorized disclosures.

The non-disclosure agreements signed by all persons who are granted access to classified information should be amended to include a provision that sets out liquidated damages, when appropriate, based upon a judicial finding that the person breached that contract by having engaged in an unauthorized disclosure of classified information; and to require that the individual, upon request of a duly authorized official during the course of an unauthorized disclosure investigation, execute a certification under penalty of perjury that he or she has not engaged in a specified unauthorized disclosure of classified information.

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CONCLUSION

In sum, to protect its diplomatic, military, and intelligence capabilities, the Nation must combat unauthorized disclosures of classified information effectively, through aggressive administrative enforcement of current requirements, rigorous investigation of unauthorized disclosures, and vigorous enforcement of the criminal laws that make such disclosures a Federal crime. Clearly, that only a single non-espionage case of an unauthorized disclosure of classified information has been prosecuted in over 50 years provides compelling justification that fundamental improvements are necessary and we must entertain new approaches to deter, identify, and punish those who engage in the practice of unauthorized disclosures of classified information. Although there may be some benefit from a new comprehensive criminal statute, such a statute standing alone would be insufficient in my view to meet the problem of unauthorized disclosures of classified information in its entirety. Accordingly, I am not recommending that the Executive Branch focus its attention on pursuing new legislation at this time. Should Congress choose to pursue a criminal statute that covers in one place all unauthorized disclosures of classified information, however, the Administration would, of course, be prepared to work with Congress.

The Office of Management and Budget advises that there is no objection to the submission of this report from the standpoint of the Administration�s program.

Sincerely,
John Ashcroft
Attorney General


cc: The Honorable Dick Cheney
President of the Senate
United States Senate

The interesting part is Asscrack's assertion that the White House has the authority to conduct its own investigtion into the identity of the leaker(s), and is not required to turn the investigation over to the Justice Department, particularly before the leaker(s) are identified. So if Bush truly "place[s] deterring, detecting, and punishing unauthorized disclosures of U.S. national security secrets among our highest priorities," why has the Administration simply turned to matter over to the Department of Justice with a lame promise to "cooperate fully"?