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From AJR,   November 1999  issue

A High-energy Effort to Trace a Leak   

By Tricia Eller
Tricia Eller is a former AJR editorial assistant.     

With the proliferation of leaked material in Washington, D.C., some might consider a tip to a reporter business as usual. But imagine you're the source, and you've just learned the Office of the Inspector General has launched a full-blown investigation at the energy secretary's request with the goal of finding you.

Secretary Bill Richardson sparked such an inquiry March 19 when he asked the inspector general to find out who leaked an internal report to USA Today investigative reporter Peter Eisler. Four days later, the inquiry was under way. It wouldn't end until almost six weeks had passed, more than 60 Department of Energy employees and contract employees had been interviewed, and 10-and-a-half months' worth of DOE phone and fax records had been scrutinized.

The probe wasn't exactly a raving success. A May 4 report, obtained by USA Today through a Freedom of Information Act request and signed by Inspector General Gregory H. Friedman, reads: "The results of our inspection..do not provide conclusive evidence as to the individual, or individuals, who inappropriately released the Internal Report." Nada, the big zero. But was it wasted time?

"The real reason [for such inquisitions] is not to right a wrong," says Gregg Leslie, acting executive director of the Reporters Committee for Freedom of the Press, "but instead to intimidate. It's an anti-openness tactic."

Bob Dubill, executive editor of USA Today, doesn't think it puts sources into the deep freeze, but does say "it's a chill on reporting." And Eisler, who calls the experience "disconcerting," doesn't "see how it could help but discourage people from calling," though he hasn't noticed a "huge impact."

In an unpublished letter to the editor of USA Today, written in response to the paper's own story about the investigation, Richardson said the exploration was not "prompted by some nefarious plot to deny information to journalists," but instead by an intolerance for illegal dissemination of intelligence. "I will insist that my employees not disclose unauthorized information," the letter reads, "and those that do will be punished."

This all began, according to the report on the investigation, because of a March 17 article by Eisler that cited not-so-flattering information about the department's security lapses. The A1 story ran with the lead: "The Department of Energy (DOE) requested at least 19 FBI investigations last year after internal reviews indicated classified or sensitive information was leaked, stolen or compromised at U.S. nuclear weapons plants and laboratories." The piece identified its documentation as "internal DOE briefing material prepared last summer for [then] incoming Energy Secretary Bill Richardson."

Leslie, who is also an attorney specializing in confidentiality issues, says the leaks that spur investigations "usually embarrass someone... [They] usually don't cause any damage or break any laws."

But the one to Eisler may have violated Section 148 of the Atomic Energy Act of 1954. The leaked document was marked "Unclassified Controlled Nuclear Information, Not For Public Dissemination." Unauthorized distribution of UCNI information, according to DOE spokesman Stuart Nagurka, is subject to "a civil fine of up to $100,000 and a criminal penalty of up to two years in prison."

DOE guidelines say a document can be controlled if its release could harm "the health and safety of the public or the common defense and security." They further say, "UCNI can be provided to anyone with an official interest in the information but cannot be released to the public," although the public does have a right to know "how DOE conducted its operations in the past, how it is conducting them now, and its plans for the future."

According to these rules, the material Eisler obtained must be highly sensitive. His article detailed information that claims "an alarming increase of instances where..national defense information has either been compromised or placed at risk."

But a report by Victor S. Rezendes, director of the energy, resources, and science issues team of the General Accounting Office, detailed an ongoing problem at the DOE. In Rezendes' April testimony before the House Subcommittee on Oversight and Investigations, he said security breaches at Los Alamos are "only the most recent examples of problems with the DOE's security systems. For nearly 20 years, we have issued numerous reports on a wide range of DOE security programs designed to protect nuclear weapons."

The GAO, which investigates and evaluates federal programs, also maintains a database, accessible via the GAO's Web site (www.gao.gov). A link labeled "reports and testimony" contains all GAO reports not "restricted or classified." Available here is far more condemning documentation of security lapses, dated before and after Eisler's story.

Sensitive or not, the DOE document was still classified UCNI, protected by law. The DOE's Nagurka says "anytime there is a leak of information..the department's policy requires an investigation to ascertain the facts and circumstances."

Leslie of the Reporters Committee for Freedom of the Press says investigations like this have "always happened to some degree," though he sees them happening with greater frequency.

No one interviewed for this article knew of data documenting the number of government investigations of sources.

Gary Boss, assistant director under the GAO's Rezendes, and William Lanouette of the same GAO department compared this investigation to former Energy Secretary Hazel O'Leary's 1995 hiring of a private firm to investigate and rate reporters (see The Press and the Law, January/February 1996).

Eisler is taking it all in stride. "It's an unfortunate incident," he says, "and it's passed, and I'm not going to dwell on it. They've got their job, and I've got my job."

And according to Nagurka, the DOE's job is one of meeting responsibilities. "Employees are guardians of the public trust and national security," he says, "and there is no option."

USA Today's Dubill doesn't think such searches have to harm the press' own watchdog function. "Journalists have an obligation to pursue the truth," he says. "The more obstacles in the way, it's more of an incentive."