- Some highlights from this interview
- Starting a leak investigation
- Why haven't there been very many successful leak prosecutions?
- What he would say to the authors of the NSA wiretapping and secret CIA prison stories
- His feelings on "Deep Throat" -- the most famous leaker of our time
David Szady served as the FBI's assistant director for counterintelligence from 2001 until 2006, when he retired after 33 years with the bureau. As part of his job, Szady ran media leak investigations. This is an edited transcript of an interview conducted on March 28, 2006.
... So you are our chief counterspy?
You could put it that way, yes. ...
In that role, would you be in charge of leak investigations?
Yes. The FBI runs leak investigations when those leaks involve classified information.
Well, first of all, you have a victim agency: the owner of the information, those who classified it. What they have to do is file a report with the Department of Justice that consists of 11 questions that have to be answered.
And those questions go from, was the material properly classified? Is that information known? Was the information that leaked accurate compared to what the actual classified information is? What was the damage to national security? How many people possibly had access to that information? And several other questions.
“I don't think anybody -- special prosecutor, FBI, Department of Justice -- really relishes the idea of using a grand jury or a subpoena to go and have a reporter talk.”
So those questions are answered by the victim agency, and they're sent to the Internal Security Division of the Department of Justice, who looks at that information and decides whether or not a leak investigation should be opened. If the Department of Justice thinks that an investigation should be opened, then it's sent over to the FBI. It comes to the counterintelligence division of the FBI, because ... the FBI's counterintelligence division runs espionage investigations or investigations that involve intelligence. ...
And it comes to the counterintelligence division because the information in question was classified in some sense?
Yes. And there is a belief that somebody leaked information that was legitimately and properly classified.
So this is the same kind of referral that takes place, whether it's a leak of classified information to a lobbyist or a spy as it is to a journalist?
... First of all, it's not espionage [in] the classic sense, where you're giving classified information to a foreign power. You're giving classified information here to somebody in the media, which is illegal. It's not espionage as we're talking about it here with spies. But it is worked, if you will, on a criminal investigation under the espionage statutes: unlawful possession; unlawful distribution; unlawfully giving this information to somebody who should not have access to it. ...
And the information has to be accurate?
So if you leak inaccurate information, there's no leak investigation?
Well, that's right. The determination may be made that there's no sense in investigating something because the information is not accurate. It's not real information, if you will.
So when the government announces a leak investigation and it comes to your office, it's confirming that the report in the newspaper, for example, or on television was true?
In-- yes. Indirectly, yes.
That's one way to fact check.
And how do you conduct these investigations? I mean, it comes to your office, and what would you decide to do then?
Well, first of all, remember, the decision to open an investigation is made by the Department of Justice. That paperwork is passed to the FBI [and then] to the counterintelligence division of the FBI, ... and an investigation is started by the FBI. Most of these investigations are run by our Washington field office in Washington, D.C., because that's where most of the leaks take place. ...
Does it go to a special squad? Is there a group that specializes in this kind of stuff?
Well, there's not necessarily a media-leak squad. Obviously there are intelligence squads within the Washington field office -- counterintelligence squads, espionage investigative squads. So what would normally happen is you would take a number of agents and bring them together to work on a particular media leak case.
Now, in the cases that we're interested in right now, involving national security information both with The New York Times and The Washington Post, it's our understanding this investigation is pretty benign as a leak investigation?
The government looks at it as a very serious leak of sources and methods. As a result of that, if the Department of Justice has made a finding that there should be an investigation conducted, then one has been initiated. Once that's initiated, [the] Washington field office is, as I said, given the investigative responsibility for that investigation. Then, depending upon the size of the potential knowledge base and also depending upon the time elements involved in this will help determine the number of agents that have to be put on a particular investigation.
So if we hear 20, 30 agents are working this around the country?
Well, it's not necessarily full-time 20, 30. Those aren't accurate numbers necessarily. But you may put a larger number of agents on an investigation initially in order to get the initial interviews done and then start whittling that down as you start focusing in on where the possible leak may be.
You got interviewed, right?
Yes, yes. If you were briefed, if we were going to run the investigation, or the FBI was going to run it from its counterintelligence division, if people in there happened to be briefed into a certain program that was leaked, and there's a possibility that you could be the leaker, as a result of that, you would be interviewed or talked to.
And what do they ask you?
... "Did you leak this information to the media?" would be a very direct question.
And they expect you to confess?
No. Well, that's part of the problem in investigating media leak cases that we can get into, because they are very difficult to investigate. First of all, most of the investigations that are done are purely ... research and record checks and things of that sort.
Since they are a criminal investigation, you could have access to using sophisticated techniques. But very rarely does that happen, because you're running into a lot of different issues. A lot of different elements are coming into the investigation.
What do you mean by sophisticated techniques?
Well, if you were going to use any type of surveillances or things of that sort.
So you mean electronic surveillance is possible?
It's possible, but it's very unlikely that something like that would be [used], because you're talking about dealing with the media. You're talking about the public's right to know. You're talking about the Constitution, the First Amendment. And you're talking about the fact that the subject in these cases are not the media representatives. The subjects are the person [or] people who gave the information to the media. There's a fine line between the public's right to know and classified information and things of that sort.
Do you polygraph people?
Yes. People can be polygraphed, but that's also an interesting technique that's not always used. ...
What you have to remember if you're running a criminal investigation, when you start using the polygraph, that would have to be done by the FBI, and it would have to be done in a voluntary basis, because if you're in an organization that requires a polygraph for employment, then you're entering into a situation where they're compelled to take a polygraph for employment, and therefore that information is not necessarily admissible in court.
It can be. Media investigations are very complicated. You have issues that come into play. It can be politics. You can have an individual who's a leaker who has whistleblower status or is going to get whistleblower status. And what does that all imply?
That's why there haven't been a lot of successful prosecutions with media leaks. And that's why, in a lot of respects, a lot of agencies look at administrative actions, administrative inquiries, processes that are in place in order to deal with leaking. And again, remember, when we're talking about the FBI being involved, it is classified information, and it has been determined that that information has been properly classified.
You mean the information that appeared in the newspaper or other media was properly classified?
That's correct. And it's accurate. Remember that, too. ... If you were prosecuting somebody and the information isn't accurate, why are you bothering with it? It doesn't make any sense.
But if you're trying to plug leaks, if you will, of any kind --
Right. You have to put this in perspective. Leaking is a serious issue, particularly when you look at the intelligence community and you look at sources and methods. These are serious issues that have to be dealt with.
But around those serious issues come all of the other factors that can be mitigating in a certain way. Recently the FBI had a case where an individual, [former Defense Intelligence Agency analyst] Mr. [Lawrence] Franklin pled guilty to giving information that eventually would go over to the Israeli government. The judge in that case said, "No, you may have all of the intentions in the world that seem good for you, that this is the thing to do, but an individual by themselves doesn't have the right to make that particular decision."
Now remember, we're talking classified again, not information that goes to fraud and abuse or political situations or things of that sort. ... The information is clearly and properly classified. It can be declassified by those who classify it, and it could be given out at that particular time. But as an individual, you don't have the right to make those decisions and give away what is clearly classified information.
Even if he's perceived as being a whistleblower?
That complicates the issue if somebody is given whistleblower status. But even with that status, to give away properly classified information that jeopardizes sources and methods, that jeopardizes operations or things that the country is doing in the intelligence world or counterterrorism world or counterintelligence that will be damaging to the United States, you don't have the right to give that information away.
Even if you're describing something that's potentially illegal?
Fraud and abuse and illegal activity -- that's where it starts to get murky and complicated, exactly. Now remember, let's go back to the 11 questions. You have to clearly define in those 11 questions when you answer them. What the information was? Was the national security of the United States damaged? Was it properly classified? And so on and so forth, so that you're getting into the Department of Justice looking at the situation, what that information involves, what type of operations, what type of intelligence or sources it involves, and can make that type of determination. ...
Has there ever been a successful prosecution?
Well, back in the '80s, there was a prosecution of an individual who gave information to [a] military magazine, gave pictures and whatnot. That was successfully prosecuted. I believe the individual pled guilty.
That was a journalist?
Yes, I think so.
Journalist who was in possession of classified material?
Yes, as I recall. And gave that to Jane's [Defence] Weekly magazine or whatever, and either pled or was successfully prosecuted. But in this area, there aren't a lot of successful prosecutions. And when you look at the issues involved, you can see why. ...
You're running into the right of the free press, the public's right to know; you're running into First Amendment rights issues. So the issue becomes looking at the subjects and not the reporters or those involved in the media. You're not focusing on those people.
Now, there can come a time or a point when a judge may decide that the reporter's responsibility is such that they have to cooperate with an investigation. Also, in these investigations, just so that we're clear, interviews that are done in these investigations are usually approved by the Department of Justice.
The closer you get to interviewing somebody in the media, the more oversight you're having by both those involved in the FBI at headquarters for the investigation, but also the Department of Justice. ... Those aren't given lightly, that authority, for all the right reasons.
Is this why your colleagues tell me they hate these cases?
Right. If you're an agent who runs investigations, if you're an agent who looks for conclusion on the type of investigations you're running, these are very complicated; they're very complex; they're very involved. And they usually result with no end. In other words, in the minds of my colleagues, my ex-colleagues, you would say, "No prosecution."
Your colleagues say that the only time these cases really get pushed is when someone with high authority -- due, usually, for political reasons, they say -- really wants to push the case.
That's not true. Depends what you mean by higher-ups.
Director of the CIA.
President of the United States.
Right. No one has been more victimized probably by leak cases over the years than the CIA, for example. Remember, though, the CIA still has to answer those 11 questions. They still have to be given to the Department of Justice, where that decision about whether to move forward with an investigation is made at the Department of Justice.
But the seriousness of the allegation is weighed also, the seriousness of the type of information that's being leaked and that sort of thing. So I think it's a fair and balanced process. ...
And your office got the referral in the Valerie Plame case?
Initially, yes. There's still prosecution outgoing in there, so commenting on it is difficult.
No one's been charged under the [Intelligence Identities Protection Act] in that case as of today. What makes that particular law difficult in terms of prosecuting somebody?
Well, there haven't been that many cases involving this particular leak of information or the identity of undercover CIA officers to begin with. I don't think it would be any more difficult than anything else. I think everybody would admit and everybody would acknowledge that the leaking of the identity of an undercover CIA officer is an extremely serious matter, particularly given the world situation we live in now, and we're actually talking about life and death. ...
When you got that referral, was your reaction, "Well, we're never going to get anywhere with this case," or, "This is another one where we're going to have to probably subpoena reporters and it won't happen"?
Any time you get a media-leak case, the agent's immediate response usually is, "Well, here's another one that isn't going to go anywhere"-type thing, because we've had so many of them, and the frustrations of working them and the difficulties of working them. But what you have here is a dilemma, because you have what I consider to be the extreme seriousness of people leaking legitimately classified information, giving up sources and methods and operations which cause great damage to the intelligence collection operations of the United States.
You have that seriousness of the issue, and yet you have the difficulty of prosecution, not the least of which, we haven't mentioned, is how many people know about this information. You usually think that it may be a small number, but as the investigation goes on, you find out that there's larger and larger numbers of people who may have had that information, which also may determine whether or not you're going to do an investigation.
To the extent that you can comment on what's an outgoing case, this particular case, the Plame case, did you ever think there really was a crime committed here?
Well, that wasn't for me to determine. The investigation would determine that and exactly what happened. Obviously the FBI ran the investigation for a while, and then, for all the right reasons, it was given over to a special prosecutor [Patrick Fitzgerald] whose job then it was to determine all of those answers. ...
And when the investigation leads to a reporter, then what happens?
Well, they all lead to a reporter somehow. And again, let me stress that if you're going to interview a reporter in the media, you have to have authority from the Department of Justice, and you have to pretty much exhaust your investigation, and it leads to that particular reporter. ...
Has a reporter ever volunteered to talk?
Sometimes they'll talk to you, but they won't give up their sources. They're not going to tell you who leaked it to them, but they might give you the time of day.
Do ... you go to your superiors or the Department of Justice and say, "We need to subpoena this reporter"?
Yes. What would happen there -- again, now, this would be a high-level decision because of the seriousness of doing something like that. And those decisions would be made by the Department of Justice.
In any of your cases, has a reporter been subpoenaed?
Not that I recall, not that we investigated. Now, that's not to say that it [never happened], but I don't recall that.
So it really takes a special prosecutor to do that?
It doesn't have to. It doesn't have to. It could be done by the Department of Justice.
But you can't remember it ever being done?
Why did you lose jurisdiction over the Plame case? Why did the Plame case get transferred to a special prosecutor?
Well, I think it was political considerations -- and rightfully so -- that the attorney general felt that given his position in the administration and given the political sensitivities of the case that it should be given over to an independent prosecutor, somebody who would be viewed as totally objective and having no ties back into the executive branch of the government.
And this special prosecutor is not, if you will, restrained by the same considerations as the Justice Department when it comes to reporters?
Oh, yes. Oh, absolutely. They would have the same considerations. They would, if you will, conduct the same investigative efforts to get to a certain point. ... To subpoena reporters is a very serious and sort of last end-of-the-road-of-the-investigation-type situation. ...
I don't think anybody -- special prosecutor, FBI, Department of Justice -- really relishes the idea of using a grand jury or a subpoena to go and have a reporter talk. But I think it also goes to the issue that these are serious matters at times, and that decisions have to be made about whether or not the need to protect sources, methods, operations, intelligence gathering for the country is paramount.
The national security versus the public's right to know?
I'd hate to say "versus." The public's right to know obviously becomes an issue here, yes. But again, this information we're talking about -- what we said before -- is determined to be legitimately and properly classified, that it has a reason that it's being classified, and it was done properly. ...
The Espionage Act -- you investigate under that statute as well, right, when there's a leak?
Is the Espionage Act your main legal jurisdiction?
How does the Espionage Act apply to reporters?
Well, remember now, the reporter is not the subject of the investigation; the reporter is the individual who received the information. ...
You could look at it this way. Reporters are in the intelligence-gathering business. They're gathering intelligence. It's an intelligence operation. Unfortunately, in these cases when the FBI's involved, it's classified information. Now, when that information is taken by a reporter and it's made public, that information is common knowledge now for those who can use it against the United States or use it to neutralize things that the United States may be doing.
But isn't it a crime under the Espionage Act to have possession of information that you are not authorized to have?
Reporters are worried that you might tell me, as an example, something that was classified and I might get prosecuted for knowing it.
Well, I can't ever recall a reporter being prosecuted.
So you don't think that will ever happen?
No. I mean, it could, depend[ing] upon what the reporter did with the information. ... You could make a case that putting it in a paper is giving it to a country that would disadvantage the United States. But you get into the whole issues in the media, and I think that those are clear. And back to the seriousness of whether or not you're going to interview or whatever, keep in mind, we're not looking at the reporter as the subject. ...
This administration, as you may have read recently, was reclassifying stuff that was in the National Archives. They have been reversing, if you will, the declassification policies of the Clinton-Gore administration in certain ways. And a lot of people in the journalism community in particular see them as much more secretive, much more, if you will, fixated with the idea of keeping information inside the government as opposed to the public knowing. My question is, because this administration is more secretive, isn't that going to result in more leaks?
Well, first of all, you're making the assumption this administration is more secretive. I don't buy that premise at all. I think that during the previous administration, the Democratic administration was very concerned about media leaks, extremely concerned about them, and in fact rewrote an executive order to deal with administrative processes and procedures to deal with leaking and the seriousness of it. So I think that every administration recognizes the seriousness of leaks.
Again now, my focus is on classified information. ... You will find very few people in the government in any administration that thinks that media leaks are necessarily a good thing when it comes to classified information. Policy issues, political issues, things of that sort, that's a whole different ballgame.
So you don't think that, for instance, 9/11 and the war on terror has made it more likely for there to be leak investigations just because the government is --
No, no. No more than we've had in the past or no more than we've looked at previously. This isn't a new phenomenon. People may think that things are overly classified or there's too many things that are classified, and there may be some truth in that when you look at everything that's classified, but again, remember, that's why you have the 11 questions. That's why you have somebody who seriously looks at the information that was leaked, again, to determine its classification, but also to determine, based on the victimized agency, the damage to the national security. ...
What's your reaction when you see, as in the Plame case, journalists becoming witnesses?
I don't think anybody likes to see that, anybody in the FBI or anybody in the Department of Justice or anybody in the media for sure. But I think there comes a time out of necessity when the particular violations that have been committed are so grievous that the department and the courts will decide that a subpoena in these certain situations is the right thing to do. ...
But you wouldn't want reporters talking, would you?
No. I think everybody recognizes the need for reporters to protect their sources. Nobody questions that. What you run into here is when the national security of the United States or violations of the law come into play that are so serious that those possibilities are considered or put into play.
You could take that and say if a reporter has information that a crime was committed, why would they not report that? Or if they knew who murdered somebody or who kidnapped somebody and a source told them, would they have an obligation to help convict that person?
These are very tough areas to deal in, and I think that's why we're having this conversation. These aren't easy investigations, and there's a lot of issues that come into play. ...
I'd make a point here about the media. The media many times is very, very responsible in acting with information that they're given that is classified. I've had situations where the media has come to me personally in my role as assistant director of the FBI about information they have. Obviously they want to verify it; they want to make sure it's accurate; they want to tell you what they have.
But more importantly, many times they've come to discuss the fact of what kind of damage would this do if we published it or if we published it today. We might recommend that it's their decision, but for the sake of an investigation, could you delay publication? And many times they will. Many times papers, TV, media have not published stories because of the national security of the United States until a later date when it was possible to do that. ...
Is there a specific case you can think of that ended because you couldn't subpoena a reporter?
Probably most leak investigations end that way. I think it would be safe to say that. First of all, if you look at the pool of knowledge and the breadth of that and you see how large that is, and then you say, "How are we ever going to get to the person?," and the only way that you could get to that source may be from the reporter, in a lot of cases we'll end. Like I said, it's a serious decision made by the Department of Justice on whether or not you can even interview the reporter in a particular case. ...
We're going to interview lots of reporters. What would you ask them, reporters who have, let's say, done the [National Security Agency warrantless wiretapping] eavesdropping story or the [Eastern European secret] detention center story or any of these stories that are classified information that are now the subject of leak investigations?
I'd want to know, have you considered all of the ramifications of publishing that information and what type of damage that may cause to those particular efforts that are being conducted by the United States, and if they're legitimate, in order to protect the national security? Have you taken all of that into consideration? I think those questions are asked by your editors, let alone, by somebody like myself? And then a decision is made whether or not a particular story should move forward.
Again, I will go back to say that the responsibility shown by the media in these type of things is tremendous at times. It's brought in, and information may be discussed with whatever agency is involved, and a decision is made at that point about the need to know. ...
And I'll come back to you and say in the case of the eavesdropping story, the motive is legality. It was leaked, obviously, by people who thought it probably shouldn't be going on.
I'm not going to get into the politics of the issue or the legalities in those things that are out there, but the technique certainly was worthy of protection. ...
But if I'm playing the reporter, ... and I discover a classified operation that has a questionable legality according to the people who are telling me about it, some of them may be in a position really to judge that, and they want that story out there because they think that secrecy is being used to justify something that both Congress and the people really haven't been able to understand or get a full briefing on.
Right. They think. They think. They've made that decision to do that.
The sources have.
Yes. But there would be the other side to say that this has been thoroughly vetted; it's been looked at; legal opinions have been obtained, so on and so forth.
So the issue, then, about legality, power, the executive branch, authority and that thing is one thing that can be discussed. But when you're revealing the actual methods or operations or techniques, then you come into an area where I'm saying there's nothing wrong with the techniques. The techniques themselves are extremely valuable. Whether or not [it goes through] a FISA [Foreign Intelligence Surveillance Act] court, there needs to be adjustment to the FISA law; all of those things can be discussed in the appropriate venue.
So what you're objecting to or what you're saying is bad is revealing that the NSA has this capability or how they go about doing it?
Both, both, because you're letting people know what techniques are being used, and to me, that's just unconscionable. The other issues can be handled openly in their own venue. ...
Is it our imagination in the journalism business that there are more subpoenas going out, that there is more leak investigations going on?
Yes, I think so. I don't think there are more subpoenas going on. What we've had is a very high-profile, politically charged investigation, not by the investigators or those running, but particularly in the media, and that it seems to indicate that there are more subpoenas, but I don't think so. Of course there haven't been many in the past, so any seems to be a large increase. ...
Do you have any evidence that any of these publications that have taken place have actually damaged national security?
Oh, sure. There's been damage to operations. There's been damage to collection efforts. There's been sources revealed, identities, that have caused damage.
In these [particular] cases?
No, no, no. I'm talking over the broad span of the years I've been in the FBI.
I'm not going to [go into] the specific ongoing cases, ... but there certainly has been damage, and in my experience, in dealing in this in the intelligence community and to see the frustration and the outrage of people expressed after certain things are leaked which have severely damaged operations or collection efforts or put sources in jeopardy or in danger, it's been very, very serious over the years. That's the point we have to keep in mind, that we are talking in a very black-and-white area when it comes to those sources and methods and operations. ...
Do you think I have the right to publish classified information?
No, no, no. No, you don't. And that's why we have media leak investigations. But no one's been prosecuted for publishing it. ... I don't know if it could be done.
... [But you think reporters should be prosecuted?]
No, I didn't say that. ... The reporter is doing his or her job, as the country would look at it. The person breaking the law is the person giving it to them. You'll have to research what happens if a reporter, when it's published, if that could be considered a crime. ...
In the past, are there any closed cases where you can be more specific about the damage done to national security?
No. I mean, I could, but I would just leave it at there have been operations that have been neutralized; there have been collection efforts that have failed; and there have been sources identified that caused damage to the national security.
There was the story in The Washington Times that identified Osama bin Laden as using a satellite phone, and that resulted in [his] not using the phone or throwing it away, allegedly --
-- and therefore damaging our ability to track him. Is that what you're talking about?
Yes, things of that sort, or people. Operations can lead to the fact [that] if somebody reveals what the United States knows or what the government knows or an intelligence service knows or what they're doing can cause the identity of that source to become known to the people you don't want to know it and can cause that person, well, all the way up to death, if a country decides to prosecute or put somebody to death for being a source. ...
I've seen this over the years what those type of leaks can do to sources, methods and operations, and I think everybody would agree that nobody wants to jeopardize those things that are done correctly and rightfully by the intelligence services or the military or the government. I think everybody, no matter what political spectrum you're on, wants those things protected.
Can you remember in your 30-odd years in the FBI where something classified came out and it resulted in something good happening?
No. No. I mean, I'd have to really think about that one. I don't know. You're trying to get me to say there is a good thing -- well, I suppose if you look at back to the Church Committee and some of the practices that the FBI or techniques they were using at that time, you could make the case ... that that was a good thing, that the safeguards and the attorney general guidelines and the law and the way the FBI operates has all changed since then, not only for the good of the public but for the good of the FBI, and not only for the good of the FBI but the good of the FBI agent and what that person is doing in an investigation.
Editor's Note The Church Committee, a senate panel named after its chairman Frank Church (D-Idaho), convened in the wake of Watergate to rein in the intelligence activities of the FBI and the CIA. The Foreign Intelligence Surveillance Act (FISA) was passed in response to the committee's work.
So when certain things are revealed, from that perspective, it makes sense. But again, most of that goes to policy and law and procedure, not to the techniques, not to what's classified.
Mark Felt, [revealed in 2005 to be Deep Throat in The Washington Post's Watergate investigation], number two in the FBI, was leaking to Bob Woodward.
Yes. And there are those who would make a strong case in the FBI and say that that was an outrageous thing that he did, and there are others who would say he was a hero.
What does Dave Szady say?
I think he had other ways of going about doing what he did.
So he shouldn't have been talking about confidential information or potentially sensitive or even classified information to a reporter.
I think he could have done it in other ways, yes.
But in the end, did what he [did] result in something positive?
He was part of what led to the whole conclusion of that episode in history, but I think what he did could have been done in other ways, without leaking [to] the media. ...