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'Double standard' in White House leak inquiries?

If high-level officials went unpunished for dishing so many secrets to Bob Woodward, how can the Obama administration credibly prosecute mid-level staff for leaks?
/ Source: NBC News

In the first 12 pages of his new book, “Obama’s Wars,” famed journalist Bob Woodward reveals a wealth of eye-popping details from a highly classified briefing that Mike McConnell, then-director of National Intelligence, gave to President-elect Barack Obama just two days after the November 2008 election.

Among the disclosures: the code names of previously unknown National Security Agency programs, the existence of a clandestine paramilitary army run by the CIA in Afghanistan, and details of a secret Chinese cyberpenetration of Obama and John McCain campaign computers.

The contents were so sensitive that McConnell, under orders from President George W. Bush, barred Obama's own transition chief, John Podesta, from sitting in at the briefing, which took place inside a tiny, windowless and secure room known as a SCIP (or Sensitive Compartmented Information Facility.)

These and other revelations sprinkled throughout the book more than confirm Woodward’s reputation as the country’s pre-eminent journalist when it comes to reporting on national security secrets. But it might now present an awkward dilemma for Obama administration officials as they pursue an increasingly aggressive — and, arguably, unprecedented — crackdown on national security leaks.

The issue: How can they credibly prosecute mid-level bureaucrats and junior military officers for leaking classified information to the press when so many high-level officials have dished far more sensitive secrets to Woodward?

That question is especially timely right now as the Pentagon braces for what it expects will be the publication of 500,000 Iraq war documents by WikiLeaks, the web site whose disclosures of classified documents have provoked howls of outrage from administration officials and criminal investigations. And it was posed directly in federal court last week by Abbe Lowell, the prominent Washington criminal defense lawyer, who is representing Stephen Jin-Woo Kim, a senior analyst at Lawrence Livermore National Laboratory and former State Department contractor. Kim was indicted in August on charges he leaked classified information about North Korea’s nuclear intentions to James Rosen, a correspondent for FOX News.

Kim's case was the fourth leak prosecution brought by the Obama administration in recent months. That’s more than the last three administrations combined. And, by some accounts, Kim’s alleged disclosures to Rosen involved information (about how North Korea was planning to respond to a U.N. Security Council resolution by setting off another nuclear test) that was largely unremarkable.

John Bolton, the former undersecretary of state for disarmament, and a noted hard-liner on all matters North Korea, said the disclosures in the Rosen story about North Korean intentions were “neither particularly sensitive nor all that surprising.” It involved the kind of information that could have been gleaned from reading stories in the South Korean press at the time, he noted.

Now contrast that with the contents of Woodward’s book, Lowell argued during a status conference last week on Kim’s case. Putting Justice Department prosecutors on notice that he plans to challenge the indictment of his client in part on what he described as “due process and fairness” grounds, Lowell said: “The executive branch singles out Mr. Kim for indictment. At the same time, the executive branch, when it’s convenient to it, makes disclosures to people like Bob Woodward for his book.”

“I don’t know if you’ve read the book,” he added, addressing the federal judge, Colleen Kollar-Kotelly. “But it includes [national security] material that makes Mr. Kim’s disclosures look like no disclosures at all.”

To further underscore his point, Lowell also sent a three-page letter to David Kris, the assistant attorney general for national security, and Ronald Machen, the U.S. attorney in the District of Columbia, spelling out some of the national security leaks in Woodward’s book and asking whether the presumably high-level leakers to Woodward were being pursued as vigorously as was his client. “How can it be in the U.S. government’s interest to pursue Mr. Kim in the manner it has and allow this much more blatant event to go unaddressed?”

Lowell says his point is not to spur the Justice Department into conducting more leak investigations, but to stop what he sees as overzealous probes especially where there is no demonstrable harm to national security. As a strictly legal matter, however, Lowell’s line of argument might not be enough to get his client off. Kim, for example, is also charged with lying to the FBI when he was first questioned about the disclosures — an entirely separate criminal offense. Moreover, “the ‘two wrongs make a right’ argument usually doesn’t get very far in court,” said Matt Miller, the Justice Department’s spokesman, when asked for comment.

Miller also said he was unaware of any criminal investigation into the disclosures in Woodward’s book. In the past, according to John Rizzo, the former general counsel to the CIA, pursuing criminal cases against those who leaked to Woodward for his books has proved especially difficult because many of the “leaks” appear to have been authorized or sanctioned at the highest levels of the government — by officials like the president or the CIA director.

Asked for comment, a White House official told NBC News: "The president is upset about the leak of any sensitive information to any public sources, and that includes sensitive information in the Woodward book. In fact, you'll note that he explicitly refused to address classified matters with Mr. Woodward, even though he was asked about them."

'Unclassified gossip'
The official also disputed that the disclosures in the Woodward book might complicate the administration's anti-leak crackdown. "Leaks are leaks and leaks of classified national security information are crimes. They are not less criminal because there are also leaks to Bob Woodward," though the official contended that much of the "sensational" disclosures in Woodward's book were "unclassified gossip about staff differences."

As for claims of a double standard: the official stated: "There is no double standard. The administration opposes all leaks of classified information." The official further said President Obama "certainly did not authorize" his aides to share share classified information with Woodward.

But despite the White House denial, the “double standard” issue raised by Lowell is resonating with more than a few national security experts and at least some top administration officials charged with enforcing the crackdown on leakers. “It makes it very hard to pursue discipline in this area,” said one senior administration official when asked about the contents of “Obama’s Wars.”

For all his talk about transparency and open government, Obama has privately seethed and vented over leaks. Just this month, James Clapper, his new director of national intelligence, told a conference in Washington that at a White House meeting the previous day, “I was ashamed to have to sit there and listen to the president express his great angst about leaking  in his town.”

The White House official said Obama wasn't talking about Woodward's book at the meeting referred to by Clapper, but recent press reports about terror plots.

In addition to Kim, the Justice Department secured an indictment against former NSA official Thomas Drake for allegedly disclosing information about a mismanaged agency computer program; won a conviction of an ex-FBI linguist, Shamai Kedem Leibowitz (aka Samuel Shamai Leibowitz), who was sentenced to 20 months in prison for giving classified information to a blogger; and brought court-martial charges against Army Pfc. Bradley Manning for allegedly disclosing a classified video to WikiLeaks that showed the July 2007 killing of two journalists and two civilians by Army Apache helicopter gunships in Iraq.

And there might be more to come: The FBI, working with U.S. Army criminal investigators, is “devoting a lot of resources” to an active investigation into whether Manning and possibly others were complicit in leaking Afghan war documents to WikiLeaks, said the senior official who was dismayed by the disclosures in Woodward’s book.

Woodward declined to comment when contacted by NBC News. But he has told others that what his book really shows is the “dramatic overclassification” in government and how much “unnecessary secrecy” there is. Whenever there were secrets that might actually endanger national security or expose sources and methods, Woodward has said, he took care to leave those out of the book.

But that doesn’t change the fact that “there’s clearly an element of hypocrisy involved” in the anti-leak crackdown, said Steven Aftergood, an analyst with the Federation of American Scientists who publishes a widely-read blog on classification issues called “Secrecy News.”

“Some leaks are fine and dandy and others are outrageous and get prosecuted — depending on who is doing the leaking,” said Aftergood.

Or who is getting the leaks. “I would hate to have to go to jail for having leaked to the wrong person,” said Aftergood.