Leak Investigation May Violate Congressional Spending Ban

(Washington, D.C.) – The Government Accountability Project (GAP) today commented that the Bush administration’s ongoing “leak investigation,” opened to identify and prosecute the individuals who disclosed the existence of a domestic surveillance program, may violate a congressional spending ban commonly known as the “anti-gag statute.”

According to a July 26 press release from the National Security Whistleblowers Coalition, Russell Tice, former National Security Agency intelligence analyst, was approached outside his home by two FBI agents who served him with a subpoena to testify in front of a federal grand jury. This was likely in connection with the NSA leak investigation. Tice was not informed whether he is a subject of the grand jury inquiry, or simply a witness.

Tice maintains that, while he was a source for the New York Times initial story on domestic surveillance, he was careful not to disclose any classified information to the media.

“This is an important distinction,” states GAP Legal Director Tom Devine. “Until the government demonstrates that any properly classified information has been released, it is illegal to spend federal funds investigating Mr. Tice. So far all that’s been revealed publicly is the warrantless nature of the wiretapping without additional detail on the program. That is exposing illegality and perfectly legal.”

To be properly classified, there must be specific notice designating information’s classification status, and its release must aid and abet the enemy. Examples of this include revealing specific ways terrorists could infiltrate the surveillance system, the design of a nuclear warhead, or the identities of secret agents.

Devine challenged, “How does simply disclosing the existence of illegality make speech classified, unless the enemy you’re aiding is the American public? If the government overcomes that hurdle, it is entitled to check whether Mr. Tice received and defied specific notice of any information’s secret status. But until those two tests are passed, it crosses the legal line to investigate his disclosures.”

That conclusion is based on the interplay between two key whistleblower laws. First, under the Lloyd Lafollette Act of 1912, it is illegal to obstruct communications with Congress. For over 25 years, it has been accepted in the law that media disclosures qualify as communications with the government.

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