Jail Sentence Imposed in Leak Case

Shamai Leibowitz, a former FBI contract linguist, was sentenced yesterday to twenty months in jail for having unlawfully disclosed classified documents to an unidentified blogger.  It is only the third case in which a government employee has been convicted of “leaking” classified information to the press.

Mr. Leibowitz said that his intention was to expose official misconduct, not to damage national security.  “During the course of my work I came across wrongdoings that led me to conclude this is an abuse of power and a violation of the law.  I reported these violations to my superiors at the FBI who did nothing about them.  Thereafter, to my great regret, I disclosed the violations to a member of the media,” he said.

Mr. Leibowitz, an Israeli-American lawyer, told the court he now understood that he should have gone to the Inspector General of the Justice Department instead.

“I used bad judgment and made a terrible decision.  I would like to emphasize,” he told the judge in a written statement, “that I was not motivated by greed, fame, personal ambition, or foreign interests.  I made a mistake but only because I believed it was in the best interests of the American people.  I truly regret that my misguided patriotism led me to make a mistake that is wholly uncharacteristic of me.”

Prosecutors said that Mr. Leibowitz had “betrayed the FBI” by revealing information he had pledged to protect, and that his conviction should help to deter others against disclosing classified information.

“The willful disclosure of classified information to those not entitled to receive it is a serious crime,” said David Kris, Assistant Attorney General for National Security. “Today’s sentence should serve as a warning to anyone in government who would consider compromising our nation’s secrets.”

In many respects, Mr. Leibowitz seems to be an admirable character.  He has devoted much of his legal career in Israel and the United States to helping minorities, undocumented workers, refugees and other disadvantaged persons, he informed the court.  In his blog Pursuing Justice, he has helped to raise money for children needing heart transplants, organized opposition to the death penalty, and highlighted the underreported fact that the street vendor who alerted police to the attempted bombing of Times Square was himself a Muslim.

So it may have been a sign of personal integrity that he did what no one else has ever done before:  he pled guilty to the charge of disclosing classified information to the press. [Correction: Larry Franklin pled guilty (pdf) to unauthorized disclosure of national defense information as part of the settlement of his case in 2005. But Mr. Leibowitz pled guilty without having been indicted in the first place.]

(The closest precedent may have occurred in 1778 when a publication revealed the sensitive fact that France was secretly supporting the American Revolutionary cause.  In the course of a leak investigation, John Jay demanded to know if Thomas Paine was responsible.  “Yes, sir,” Paine answered without apology, “I am the author of that piece.”  That remarkable anecdote was unearthed by Gabriel Schoenfeld in his new book “Necessary Secrets,” following Daniel Hoffman’s pioneering Governmental Secrecy and the Founding Fathers.)

By admitting his guilt, Mr. Leibowitz effectively removed one of the most formidable barriers that prosecutors in leak cases must contend with.

Ordinarily, a resourceful defense can seriously complicate a leak prosecution, explained former assistant attorney general Kenneth L. Wainstein at a May 12 Senate hearing, which helps explain why there are so few of them.  “Even if the Justice Department succeeds in identifying and indicting the suspected leaker, it can expect to face a vigorous defense. These cases typically feature legal challenges from defense counsel invoking everything from first amendment principles to allegations of improper classification to arguments that their client’s alleged leak was actually an authorized disclosure within the scope of his or her official duties,” he said (pdf).

In a plea agreement that took note of his cooperation, Mr. Leibowitz’s sentence was reduced from the nominal 46 month prison sentence recommended in sentencing guidelines to 20 months.

Judge Alexander Williams Jr. said at the sentencing hearing yesterday that he was having some difficulty addressing the obligatory question of “sentencing disparity,” i.e. whether the proposed sentence was significantly more or less severe than in other cases — because there were so few other comparable cases to go by.

But as it turns out, Mr. Leibowitz is now poised to serve a longer sentence than any other convicted leaker, observed Josh Gerstein of Politico.  Samuel L. Morison, convicted in 1985 of disclosing spy satellite photos to Jane’s Defence Weekly (and later pardoned by President Clinton), served eight months of a two year sentence.  Larry Franklin, who disclosed classified information to AIPAC employees Steven Rosen and Keith Weissman, served 10 months in community confinement out of an original 12 year jail sentence.  See “Justice Dept. Cracks Down on Leaks” by Josh Gerstein, Politico, May 25.

Judge Williams ordered Mr. Leibowitz (pdf) to surrender himself on August 2 for the start of his prison term.

No Responses to “Jail Sentence Imposed in Leak Case”

  1. decora April 12, 2011 at 1:20 PM #

    IMHO, I think that you are correct in your original assertion that Leibowitz is the first to plead to guilty to giving ‘classified info’ to the press.

    Franklin was nailed on 18 USC 793. 793 does not mention the word ‘classified’, at all, whatsoever, in any way shape or form. 793 is only uses the phrase ‘national defense’ information.

    –798– is the only part that mentions ‘classified’ information (fun fact- it was passed during the Red Scare circa 1950, alongside the McClarran Internal Security Act). Congress specifically wrote this bill so that the only ‘classified info’ that is protected is info that related directly to intelligence and crytography. Edgar and Schmidt (1973 Columbia Law Review article) specifically quote congress as saying that 798 did not ban the revelation of non-intelligence non-crypto information.

    798 is the part that Leibowitz was charged with… not 793.

    So IMHO you are correct, Leibowitz is probably the only person to ever plead guitly under 798 where the ‘unauthorized person’ was in the press (a blogger, but you can argue that is the press nowdays I would think?).

    The problem is that Kris says “entitled to receive”, this is an issue because that phrase is only in 793 — 798 uses “unauthorized persons” with several caveats. According to Edgar and Schmidt, President Wilson was specifically barred by congress from being able to define ‘entitled to receive’ as he wished. Kris has conflated the two separate laws as far as I can tell.

    anyways. blah blah blah.