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Recent leak cases and First Amendment battles

WASHINGTON (AP) – Government information leaks and collisions with the media date back decades and decades. Think back to the Pentagon Papers.

In the early 1970s, the Justice Department went to court to prevent further publication in The New York Times of portions of a top-secret study, dubbed the Pentagon Papers, which was packed with damaging details about America’s conduct of the Vietnam War. It led to a landmark First Amendment case before the Supreme Court, which sided with the media. It also drew the ire of President Richard Nixon and resulted in a break-in at the psychiatrist’s office of Daniel Ellsberg, the leaker of the papers.

Fast-forward to the disclosure this week of the secret seizure by the Justice Department of two months of phone records for more than 20 telephone lines used by reporters and editors at The Associated Press. Investigators are trying to find out who may have leaked information contained in an AP story last year about a CIA operation in Yemen that stopped an al-Qaida plot to detonate a bomb on a U.S.-bound airplane. The seizure of phone records has been described by media advocacy and civil liberties groups as sweeping and broad, triggering serious concerns that this type of hunt for leakers could cast a chill on journalists and whistleblowers who want to reveal government wrongdoing.

The Justice Department has been under scrutiny before in its media leak investigations. Its own inspector general’s office concluded in a January 2010 report that the FBI did not comply with the federal regulation and department policy “that requires attorney general approval and a balancing of First Amendment interests … before issuing subpoenas for the production of reporters’ telephone toll billing records.”

One of the media leaks the inspector general looked at involved articles in The Washington Post and The New York Times. One phone company provided law enforcement with records for more than 1,600 phone calls. “No grand jury subpoena was issued for these reporters’ records, either before or after the records were produced,” the report said. “No department personnel sought attorney general approval” either.

Here are the details of some other recent cases where the government sought to probe leaks of sensitive or classified information.


Prosecutors want Pulitzer Prize-winning reporter James Risen, a reporter for The New York Times, to testify at the trial of Jeffrey Sterling, an ex-CIA officer from Missouri. The government alleges Sterling was a key source in Risen’s 2006 book “State of War,” which details a botched CIA effort during the Clinton administration, dubbed Operation Merlin, to thwart Iran’s nuclear ambitions by secretly giving the Iranians intentionally flawed blueprints through a Russian intermediary.

Risen’s lawyers have argued that the First Amendment should shield him from having to testify about his sources. The judge disagreed and said he must testify, though she limited the scope of his testimony to four topics. The government has asked an appeals panel in Richmond, Va., to reverse the ruling that limited the testimony. The government says the First Amendment doesn’t shield journalists from disclosing their sources during criminal prosecutions. The case is still pending.


Former CIA officer John Kiriakou of Arlington, Va., was arrested in 2012 and charged with leaking classified details about terror operations. Kiriakou, who was involved in the capture of al-Qaida terrorist Abu Zubaydah, was sentenced earlier this year to more than two years in prison for leaking a covert officer’s identity to a freelance writer.

Prosecutors had said in court papers that authorities became alarmed after discovering that detainees at Guantanamo Bay possessed photographs of CIA and FBI personnel who had interrogated them. The investigation eventually led to Kiriakou. Prosecutors said he leaked the name of a covert operative to a journalist, who later disclosed it to an investigator working for the lawyer of a Guantanamo detainee.

A lawyer for Kiriakou portrayed him as an anti-torture whistleblower because the name he revealed was an individual involved in the CIA’s rendition program, which she said engaged in torture.


Former National Security Agency official Thomas Drake, who admitted to giving inside information to The Baltimore Sun about a major government electronic espionage program, was given a year’s probation and community service in July 2011. He had been indicted on 10 felony counts under an espionage statute, but the felony case against Drake was dropped after the government balked at putting key classified documents and information into evidence. In a plea deal, Drake admitted to exceeding his authorized access in his use of an NSA computer system.


Former New York Times reporter Judith Miller went to jail in 2005 for 85 days rather than testify to a federal grand jury in the investigation into the identity of a Bush administration official who revealed the name of CIA agent Valerie Plame. Miller later testified after her source _ I. Lewis “Scooter” Libby Jr. _ Vice President Dick Cheney’s former chief of staff, waived Miller’s pledge of confidentiality. Libby was eventually convicted and sentenced for lying and obstructing the investigation into the leak of Plame’s name. President George W. Bush later commuted Libby’s sentence, sparing him from a 2 1/2-year prison term. Bush left intact a $250,000 fine and two years of probation for Libby.

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