New FBI Probe of Bomb Plot Highlights Administration’s Tough Stance on Leaks

May 18, 2012

National Journal on May 16, 2012 released the following:

“By Yochi J. Dreazen and Olga Belogolova

CORRECTION: An earlier version of this story incorrectly said that the Associated Press had first reported that a recent bomb plot had been foiled by an undercover Saudi Arabian intelligence operative. That was first reported by The Los Angeles Times.

The FBI has launched a criminal probe designed to identify the government officials who leaked key details of a foiled al-Qaida bomb plot, the latest indication of the Obama administration’s unrelenting push to find and punish those sharing classified information with the media.

FBI Director Robert Mueller, appearing before the Senate Judiciary Committee on Wednesday, said that the agency was trying to identify which officials had spoken to reporters about the foiled attack, helping the Associated Press report that the scheme was part of an al-Qaida plot to down a U.S.-bound airliner with an sophisticated underwear bomb. The agency is also looking for who told media outlets that the plot was broken up with the help of an undercover agent working for the Saudi Arabian intelligence service, a detail first reported by The Los Angeles Times.

The Saudi assistance doubtlessly saved significant numbers of American lives, and Mueller — like other Obama administration officials — warned that future cooperation could be hampered by the disclosure of the Saudi role.

“Leaks such as this threaten ongoing operations, puts at risk the lives of sources, makes it much more difficult to recruit sources, and damages our relationships with our foreign partners,” Mueller said. “And consequently, a leak like this is taken exceptionally seriously, and we will investigate thoroughly.”

Sen. Chuck Grassley, R-Iowa, pressed Mueller on whether the information had been leaked by the administration for political gain, likening the details on the bomb plot to what he described as the “authorized leaks from the White House about the operation to kill Osama bin Laden.” The FBI director declined to answer the question.

The hearing offered an unusually vivid illustration of the Obama administration’s hard-line approach to the news media.

The administration took office with a promise of unprecedented transparency, including – in a sharp change from the Bush administration — posting the names of those visiting the White House onto its website. The White House also offered strong support for a so-called shield law preventing reporters working national-security stories from being forced to identify confidential sources.

But those moves have been increasingly outweighed by the administration’s aggressive effort to crack down on those responsible for sharing classified information with the news media.

The White House’s main tool has been the Espionage Act, a 1917 law passed during the height of World War I as a way of finding and punishing officials passing useful information to enemy countries. The legislation had been used to bring cases against suspected leakers a grand total of three times in the previous 91 years; the Obama administration has invoked it to prosecute six such cases in the past three years alone. If the FBI believes it has found the official or officials who spoke to the AP, that tally will increase to seven.

The first case brought under the Espionage Act targeted Thomas Drake, a whistle blower from the National Security Agency who was indicated for giving a reporter information detailing massive waste, fraud, and inefficiencies at the secretive agency. The Justice Department’s case against Drake fell apart days before the trial was set to begin last summer, highlighting the difficulties of winning convictions in such cases.

That hasn’t stopped the administration from trying. In January, the Justice Department indicted John Kiriakou, a former CIA officer accused of providing classified information about waterboarding and other controversial interrogation methods to journalists and misleading the agency while trying to get permission to publish a memoir about his time there. The case is ongoing.

The others facing potential prison time for their dealings with the media are former FBI translator Shamai Leibowitz, State Department contractor and analyst Stephen Jin-Woo Kim, former CIA officer Jeffrey Sterling, and Pfc. Bradley Manning, accused of leaking thousands of classified military and State Department documents to online whistle-blower WikiLeaks. Leibowitz was sentenced to 20 months in prison in 2010 for leaking classified information to a blogger regarding Israel’s efforts to influence Congress and public opinion; the other cases are continuing.

The new investigation began earlier this month when news leaked that the CIA had helped to foil a Yemeni-based attempt to use a sophisticated underwear bomb to bring down a Western airliner. The Los Angeles Times soon reported that an undercover Saudi agent had penetrated the al-Qaida affiliate there, volunteered for the supposed suicide mission, and then secreted the bomb safely into the hands of other intelligence operatives.

The leak infuriated the Saudis, who said it put the agent at risk and endangered other undercover operatives elsewhere in the field. The unnamed agent and his family were subsequently placed into protective custody. The anger was felt just as fiercely in Washington, where an array of powerful lawmakers warned that disclosing the source and method of the information would make the Saudis less likely to work with the U.S. in the future and make it harder to foil new plots.

The AP has defended its reporting, with spokesman Paul Colford saying in a written statement that the news service “acted carefully and with extreme deliberation in its reporting on the underwear bomb plot and its subsequent decision to publish.”

That argument fell on deaf ears on Capitol Hill on Wednesday, with Mueller saying that he didn’t want to say the leak would have a “devastating” impact on U.S. intelligence gathering efforts — but then effectively saying just that.

“The relationship with your counterparts overseas are damaged and which means that an inhibition in the willingness of others to share information with us where they don’t think that information will remain secure,” he said. “So it also has some long-term effects which is why it is so important to make certain that the persons who are responsible for the leak are brought to justice.”

Those who leaked the new information may or may not be caught. But the ferocity of Mueller’s comments mean that the administration’s war against those who disclose such information won’t wind down anytime soon.”


Douglas McNabb – McNabb Associates, P.C.’s
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Prosecutor Who Ran Ethics Unit Leaves Justice Department

April 17, 2012

The New York Times on April 17, 2012 released the following:


WASHINGTON — The Justice Department on Monday announced the departure of a high-profile prosecutor who ran its ethics unit during the botched case against Senator Ted Stevens and has since played a prominent role in the Obama administration’s efforts to prosecute officials for leaking information to the press.

The departure of the prosecutor, William M. Welch II, was disclosed in a motion before a federal appeals court in Richmond, Va. The department informed the court that he would no longer represent the government in the case against Jeffrey Sterling, a former Central Intelligence Agency official who is accused of leaking information to James Risen, an author and a reporter for The New York Times.

“Mr. Welch is leaving the Department of Justice for a job in the private sector,” the motion said, but it did not give details.

Another department official confirmed that Mr. Welch had retired, saying that his last day was Friday, and that he was taking a job in the Boston area. A law firm that represented him during the fallout from the Stevens case also confirmed that he had left the Justice Department. NPR first reported Mr. Welch’s departure on Monday.

A hard-charging prosecutor, Mr. Welch got his start in 1989 in the Justice Department’s tax division and later worked as an assistant United States attorney in Nevada and in Massachusetts. In August 2007, he was made acting deputy chief of the public integrity section at Justice Department headquarters, and the following March became its chief.

In that position, he oversaw the trial team that won a conviction against Mr. Stevens in October 2008 for failing to report gifts from an oil-services firm. But the conviction was withdrawn and the case collapsed after it emerged that prosecutors had failed to turn over information to the defense that could have helped Mr. Stevens, an Alaskan Republican who lost re-election in November 2008 and later died in a plane crash.

The federal judge overseeing the case held Mr. Welch and other prosecutors involved in the case in contempt of court, and the judge and the Justice Department opened investigations. Last month, however, the judge made public the results of his investigation, and the findings largely exonerated Mr. Welch.

Specifically, the report found that Mr. Welch had been cut out of direct supervision of the trial team because his superiors in the criminal division had taken a strong interest in the case and so he had focused on other cases. It also found that “to his credit, on each occasion” when disclosure issues were brought to Mr. Welch for a decision, he directed prosecutors to provide the information to the defense.

Back in 2009, Mr. Welch was replaced as head of the public integrity section. In October of that year, he returned to the United States attorney’s office in Massachusetts but continued to work for the criminal division, whose new head, Lanny A. Breuer, asked him to take up several largely dormant leak investigations left over from the Bush administration years.

One of those cases was against Thomas Drake, a former National Security Agency official whom Mr. Welch eventually prosecuted in connection with leaks to The Baltimore Sun about enormous waste and mismanagement within the agency.

Mr. Welch initially sought conviction on charges that could have put Mr. Drake in prison for 35 years, winning an indictment in April 2010. But the case against Mr. Drake largely collapsed amid a dispute over what classified evidence prosecutors could use.

Mr. Drake pleaded guilty to a single misdemeanor charge and received a year of probation, while all the major charges were dropped and he avoided prison time. When the judge overseeing the case accepted the deal in July, he called the government’s handling of the case — putting Mr. Drake through “four years of hell” and devastating him financially, only to drop the major charges on the eve of trial — “unconscionable.”

Mr. Welch also helped revive an investigation against Mr. Sterling, who is accused of providing information about what was portrayed in Mr. Risen’s 2006 book, “State of War,” as a botched effort to sabotage Iranian nuclear research in 2000. Mr. Sterling was indicted in December 2010.

That case, too, is in trouble. Mr. Welch had been seeking to compel Mr. Risen to testify against Mr. Sterling, but Mr. Risen’s lawyers invoked the First Amendment and said he would not testify about any confidential sources. A district court judge ruled in favor of Mr. Risen. In appealing that ruling, prosecutors told the appeals court that if the ruling stands, it “effectively terminated the prosecution” of Mr. Sterling.”


To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at or at one of the offices listed above.