The U.S. Department of Justice is conducting a criminal investigation to find out who told the news media about a secret surveillance operation run by the U.S. government inside the United States. It is the third federal investigation in the past three years of so-called leaks -- unauthorized disclosures to the news media.
How do leaks get started? Investigative journalist Scott Armstrong is the founder of a free press advocacy group known as the Information Trust. A reporter for The Washington Post for nearly 30 years, Armstrong has based many of his news stories on leaks. He says a reporter can often use a routine interview with a government official to gain access to high-level secrets.
"They'll just be giving you background, the sort of background you need to write the stories," he says. "Then all of a sudden, in the conversation, you'll ask a question, not necessarily a probing question, and the person will say, 'I really can't talk about that.' And you say, 'Wait, why can't you talk about it?' You might call them back every day for two weeks, and they won't tell you. Then something might happen, and they say, 'You know, you really ought to call so and so. They're also protesting it. Leave me out of it. But see if you can't find something out.'"
Scott Armstrong says the way leaks work is: this first anonymous source, the leaker, reveals enough information that can be confirmed later by other officials. "They give you the clue in the beginning and then you go get something that is gradually 'on the record [quoted in publication]' and attributed to individuals," he says. In other cases, the reporter notes, "people give you information 'off the record' -- and you'll finally find somebody who's on the very top, who'll say, 'Yes, that's true. But you can't quote me on that.'"
Scott Armstrong says leakers have varying motives.
"Some leakers come forward -- initially, for a political reason. They may not like what's going on and they want to stop it," he says. " Other people do it because they're 'blowing the whistle: they're saying, 'I'm a loyal person in my government. I'm trying to do my job properly. I am finding that we are not doing the things the way we're supposed to. It's either illegal, or it's questionable -- or it's a matter that should be debated by the public.'"
Whatever their motive, leakers often will not allow a reporter to quote them by name. They worry about losing their jobs or being prosecuted.
In most government agencies, employees who witness a violation of the law can disclose that violation without fear of retaliation, because there are laws to protect. But there is no such legal protection for leakers who work for agencies like the Federal Bureau of Investigation, the Central Intelligence Agency and the National Security Agency.
"If you think about it, it's obvious why that's so," says Andrew McCarthy, former New York City federal prosecutor and senior fellow at the Foundation for the Defense of Democracies, a conservative policy research group. "They have at their disposal the information which really is the top-secret, most precious, national security information that we have."
Andrew McCarthy says government officials involved in national security matters are under oath not to disclose secret information. "You can't compromise national security information when, in point of fact, for years and years and years, the leaking of national security information has been a crime," he says. "You can't get access to it unless you make a commitment in the first place …that you'll keep it discreet."
Even so, most leaks involving national security secrets are not prosecuted, because leakers are not identified in the stories and reporters usually refuse to reveal their sources. The news media generally have the legal protection to print or air the story under provisions of the U.S. Constitution guaranteeing freedom of the press. But investigative journalist Scott Armstrong says reporters don't abuse that right.
"We don't ask for the approval from the government to print things. But by the same token, we do want to know if there's something that would hurt someone [if we disclose certain information] -- and what it is," Armstrong says. "Then we make very careful decisions and talk about it with dozens of people [including their editors and top government officials] before the actual story runs. It could conceivably be too sensitive: say, if you find out -- through one means or another -- that somebody had a spy by a certain name in a foreign government and that person would be immediately killed if it were revealed."
Scott Armstrong helped found a loosely-knit group of journalists and national security officials who have debated -- and developed some ground rules -- about what kind of leaks to report and what kind to hold back. Former prosecutor Andrew McCarthy agrees with Armstrong that there are too many secrets in government. But in the midst of the current war on terror, McCarthy says, government officials and reporters must judge what's in the best interest of the country: national security or the people's right to know.