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Tags: security | leaks | Obama | prosecution

Former Prosecutor: Leak Case Is 'Not Prosecutable'

Ronald Kessler By Wednesday, 13 June 2012 12:07 PM EDT Current | Bio | Archive

Ronald Kessler reporting from Washington, D.C. — A criminal case involving recent leaks of highly sensitive national security information is “not prosecutable” because President Obama likely authorized the disclosures, John L. Martin, who was in charge of such investigations for nearly 25 years at the Justice Department, tells Newsmax.

“If Obama authorized these leaks, or if they were done with his knowledge and consent, a criminal case against the leaker is not possible,” Martin says.

That is because the president can declassify any classified information.

“The president is the ultimate classification and declassification authority in the U.S. government,” Martin says. “The president could be called as a witness to testify on behalf of the defendants, saying he knew that it was going to happen or that he had condoned it. Anything that he considers should be released to the press cannot be used later to support a prosecution under the espionage laws.”

A lawyer and former FBI agent, Martin headed Justice Department espionage prosecutions for nearly 25 years and supervised the prosecution of 76 spies. They included John A. Walker Jr., a Navy warrant officer; Jonathan J. Pollard, a spy for Israel; Ronald Pelton, a former NSA employee; and Aldrich Ames, a CIA officer.

Last Friday, Obama denied that his White House was behind the leaks. “The notion that my White House would purposefully release classified national security information is offensive,” Obama said.

But if Obama authorized or condoned the release, the information would no longer be technically classified and its release would not be considered a leak. Obama has not flatly denied that the information — classified or not — came from the White House or that he authorized or condoned its release.

As noted in my story Pattern of White House Leaks Threatens Nation’s Security, the leaks threaten lives and erode the trust of foreign intelligence services and potential assets in the CIA’s ability to maintain secrets.

Since the stories do not disclose any abuses or failures but rather how the intelligence agencies are properly performing their jobs, they have no legitimate journalistic purpose other than to temporarily burnish the egos of the reporters who broke the stories and enhance the image of the president.

If Obama had not authorized or condoned the leaks, he would have immediately publicly denounced them and promptly ordered the Justice Department to conduct a criminal investigation, Martin says. Instead, he addressed the issue days after the stories provoked bipartisan outrage on the Hill, leading Attorney General Eric Holder Jr. to appoint two U.S. Attorneys to lead a probe of the leaks.

“A blameless leader would have publicly condemned the leaks immediately and instructed those in the executive branch, particularly on the president’s and vice president’s staff, to come forward with any knowledge, direct or indirect, about the source of the leaks,” Martin points out.

Martin finds it inconceivable that CIA operatives or other intelligence professionals would have leaked such information.

“If you are in the intelligence community, you don’t put the lives of people who have helped you in danger,” Martin says. The fact that the leaks compromised live CIA assets and ongoing programs, and that the stories portrayed Obama in glowing terms, means they have “politics written all over them,” he says.

As their sources, some of the stories cite Obama’s national security team and individuals who were in meetings with Obama in the Situation Room.

“No one knowing the sensitivity of all of this information in a series of stories would do it on his own,” Martin observes. “They would need approval from a higher up. The ultimate higher up and the ultimate beneficiary of the leaks is President Obama.”

Says Martin, “My conclusion is that the leaks were done to enhance Obama’s standing on national security issues and that it was done with his knowledge and consent.”

If so, Obama could not now try to justify a decision to release the information.

“He has painted himself into a corner because if he later says it was released with his knowledge and consent, the implication is that the perceived political gains were more important than our national security,” Martin says. “It would be political suicide to claim now that he authorized the release or that someone close to the president released the information with Obama’s knowledge, consent, or acquiescence.”

Pointing to the difficulty of catching leakers, Martin says that while government officials were fired for leaking while he was in charge of unauthorized disclosure cases at the Justice Department, no prosecutions were brought strictly for leaking classified material. However, leak cases are now easier to pursue because of the widespread use of email and cell phone texting.

“If you first find out who had access to this sensitive information and who had the contacts with the reporters who are the outlets for the compromised material, and whether those sources have a political interest in enhancing the president’s image, you have considerably narrowed the field,” Martin says.

Then, Martin says, “You find out the details of those contacts from FBI interviews and bring those people before a grand jury and put them under oath with all of the electronic data that you have subpoenaed, together with the admissions or denials. Sometimes the denials, because they are contradicted by other evidence, can be stronger indicators of guilt than actual uncorroborated admissions of the facts.”

An individual may say he never had any contact with a reporter. “Then you find emails and texting that say otherwise,” Martin says.

Martin sees no need for a special prosecutor. Given the public attention and pressure, no one in the Justice Department would try to cover up the case.

“Along with the FBI, there are too many people looking at it now,” Martin says. “Remember, the FBI agents at the street level maintained their independence and integrity in the Watergate investigation,” he says.

Going forward, “The critical question for the investigators is what did the president say and do upon first learning of the leaks,” Martin says. “Before thousands of hours are expended by FBI agents and Justice Department attorneys investigating the leaks, the president must state under oath that he did not authorize or condone these atrocious disclosures.”

Ronald Kessler is chief Washington correspondent of He is the New York Times bestselling author of books on the Secret Service, FBI, and CIA. Read more reports from Ronald Kessler — Click Here Now.

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Wednesday, 13 June 2012 12:07 PM
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