Biden policy complicates ability to investigate those who leak classified information

You’re reading the Opposing View, one of two perspectives in Today’s Debate.

For Our View, read FBI subpoena for USA TODAY records serves as chilling reminder that freedom of the press is fragile.

The controversy surrounding the Justice Department’s subpoenas of journalists’ records is understandable. The freedom of the press enshrined in the First Amendment is among our most essential American values, and as demonstrated during the recent debacle of the Trump administration, the importance of investigative journalism has never been greater to uncovering the abuses of government agencies and officials. 

But our constitutional system must be flexible enough to accommodate competing interests. And here, the government has a legitimate interest in identifying, and holding accountable, individuals who disclose sensitive classified information to parties not authorized to receive it – including journalists. (Although reporters are rarely the target of prosecution.) That is because “leaks” of classified information can reveal, directly or indirectly, sources and methods of intelligence collection, thereby weakening our nation’s ability to learn about our adversaries’ actions and intentions.

David H. Laufman is a partner in the Washington, D.C., office of Wiggin and Dana LLP. (Photo: Wiggin and Dana LLP)

Managing this tension can be hard and uncomfortable. I know from my own professional experience: From late 2014 to early 2018, I served as chief of the Counterintelligence and Export Control Section in the Justice Department’s National Security Division, which has responsibility for investigating leaks of classified information. But Congress enacted laws – long enforced by both Democratic and Republican administrations – which make it a crime to disclose classified information to parties not authorized to receive that information. The executive branch is constitutionally responsible for enforcing these laws, and as in any investigation – whether a burglary, bank robbery or a leak of classified information – the key objective is to find out who committed the crime. That’s why the phone or email records of a journalist can be of investigative value – as they can reveal with whom the journalist was in contact in temporal proximity to the leak.

Longstanding DOJ policy requires an exhaustion of other, less intrusive investigative efforts before the records of journalists can be sought. And while that requirement has long frustrated agents and prosecutors – because it substantially lengthens investigations – it aims to strike a reasonable balance between two important, competing policy interests. 

Like any policy, this one could benefit from further refinement. The Biden administration’s decision to jettison this policy altogether, however, is ill advised and will further complicate the government’s ability to identify and hold accountable those who disclose classified information in violation of law.

David H. Laufman is a partner in the Washington, D.C., office of Wiggin and Dana LLP.

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