DEA Employee Gets Prison Term for Leaking to Reporter R. Robin McDonald
A federal judge in Atlanta has imposed a one-year prison sentence on a former intelligence analyst charged with stealing government information and leaking it to a London newspaper.
In a case that the U.S. Attorney in Atlanta says establishes a significant precedent, federal prosecutors assigned a media market price to the leaked information high enough to ensure a felony charge and increase the anticipated prison term.
William S. Duffey Jr., U.S. Attorney for the Northern District of Georgia, said the successful prosecution of former Atlanta Drug Enforcement Administration analyst Jonathan Randel stands as a warning to government employees, particularly law enforcement agents, who might consider providing sensitive, unclassified information to anyone, including journalists, outside of the federal government.
"It is our intention to prosecute those offenses," Duffey said. "We have to send that message to everybody within the justice system."
Duffey said Randel was prosecuted because the theft and sale of confidential government information "jeopardizes the integrity of the justice system. Here is a person who was hired in an intelligence-gathering function whom we entrusted with highly sensitive information. He had a duty and he agreed he had a duty to keep that information secret."
Duffey's prosecution of Randel is in line with a report by U.S. Attorney General John Ashcroft's interagency, anti-leak task force, which last year recommended that government administrators use laws already on the books to identify and punish employees who leak information.
The law under which Randel was prosecuted has been in existence for decades and applies to the theft of public money, property and records. It establishes a maximum 10-year prison sentence for the theft, embezzlement, or conversion of government property and also extends penalties to anyone who receives it.
Using that statute, Duffey's office defined information, including e-mail correspondence, as government property. Federal prosecutors in Atlanta placed a market value on the information Randel leaked, claiming it was worth at least $13,000, the amount Randel eventually received from the Times of London.
But prosecutors suggested the information may have had a far greater value. Last August, prosecutors called a London literary agent to testify in a hearing that the information the Times acquired and subsequently published had a market value of as much as 50,000 British pounds (about $80,000). The literary agent based his estimate on the news value of the Times' story in the competitive London newspaper market.
Neither Duffey nor a DEA spokesman in Washington, D.C., could cite any other cases where the government has prosecuted an employee for taking confidential but unclassified information and provided it to a news organization. A Justice Department spokesman in Washington could not be reached for comment.
PROSECUTION CALLED VERY RARE
Kevin M. Goldberg, a partner at Washington, D.C.'s Cohn & Marks and legal counsel to the American Society of Newspaper Editors, suggests that Randel's prosecution is, if not unheard of, extremely rare. So broad is its potential application that, if applied across the board, the law might well have netted FBI staff attorney Coleen Rowley -- whose May 2002 memo to FBI Director Robert Mueller documented how agency higher-ups brushed off her field office's pleas to investigate a terrorist co-conspirator prior to Sept. 11, Goldberg said. Time this year included Rowley among three whistleblowers it named as "Persons of the Year."
In sentencing Randel last week, U.S. District Judge Richard W. Story of the Northern District of Georgia made it plain that he considered Randel's actions "a very serious crime."
While acknowledging, "No investigation was put at risk, lives were not lost," as a result of Randel's actions, Story said, "Anyone who would leak information poses a tremendous risk." The judge also compared Randel's actions to a "drunk driver who gets in a car and gets home without killing anybody. ... No agent got killed but the risk was certainly there."
Randel's lawyer, Atlanta attorney Steven H. Sadow, is appealing the sentence, seeking less time and house arrest or confinement to a halfway house.
DATA BANKS TAPPED
In a plea agreement, Randel admitted that he supplied information from DEA data banks in 1999 to a British television correspondent who freelanced for the Times. Federal prosecutors say Randel sold the information for $13,000.
Sadow and Times solicitor Alastair Brett said the money the newspaper paid to Randel was to reimburse him for a trip to London to meet with Times officials after the newspaper was sued for libel. In addition to trip expenses, Sadow said the $13,000 covered the wages Randel lost by taking off work to make the trip.
The information Randel supplied -- which the Times published in a 1999 series of articles -- concerned Lord Michael Ashcroft, the former treasurer of Great Britain's Conservative Party, and his bank holdings in Belize. The controversy forced Ashcroft to resign as party treasurer, said his Atlanta attorney, Edward T.M. Garland, a partner at Garland, Samuel & Loeb. Ashcroft hired Garland to lobby federal prosecutors to bring a case against Randel.
Ashcroft is no relation to the U.S. attorney general, a government spokesman said.
According to court filings, Randel gave the reporter information from restricted DEA investigative databases in which Ashcroft's name had surfaced. The DEA files didn't implicate Ashcroft in any criminal activity, the Times reported. However, allegations in the Times articles that Ashcroft's name had surfaced in four separate investigations of drug-dealing and money-laundering were at the heart of a defamation suit he brought against the newspaper.
One DEA report stemmed from a request by a Belize attaché to research Ashcroft's activities in Belize because he was "acquiring significant assets" there. Ashcroft owns the Bank of Belize, according to redacted DEA reports included in court records. Belize's bank secrecy laws have helped drug dealers, among others, to shield their financial activities from scrutiny by investigative agencies. Ashcroft's ownership of the bank caused his name to surface in DEA reports regarding investigations of at least one drug dealer who had laundered money through the Bank of Belize. Sadow said Randel willingly gave information to television correspondent Toby Follett because "he thought Ashcroft was getting a free ride for crooked activities. That's why he did what he did. Money had nothing to do with it."
DEFAMATION CLAIMS SETTLED
Times owner Rupert Murdoch settled the defamation claims with Ashcroft in return for a front-page apology in which the Times stated that the paper had no evidence that Ashcroft had been involved in either drug-dealing or money-laundering, said Times solicitor Alastair Brett. Brett acknowledged that the Times did make payments to Randel, but that the money was to reimburse him for a trip he made to London in August 1999 to testify after Ashcroft sued. Garland said that Ashcroft "wanted his named cleared" and that his representatives met with the DEA and federal prosecutors and asked them to prosecute Randel for the leaks.
Garland said he sought to have the Times indicted as a co-conspirator because the statute under which Randel was prosecuted allows for the prosecution of anyone who solicits confidential information from a government employee.
"But the government wasn't interested in pursuing it that far," Garland said. Duffey wouldn't comment on whether he considered indicting the Times. The DEA subsequently released some of the information that Randel had given to the Times to other London newspapers under the federal Freedom of Information Act. Some of the information in DEA reports Randal released had been obtained from Dunn & Bradstreet, a company that sells business information. But Duffey said the government's decision to make the information public occurred after Randel released it to the Times and had no bearing on his prosecution.
"We look at the offense at the time it was committed," he said. "When this offense was committed, it was in violation of this employee's duties. What might have happened after that was irrelevant to the prosecution. At the time the information was disclosed by Mr. Randel, it was protected, sensitive information, and he had a duty not to disclose it."
SWAP CALLED 'STANDARD'
Catherine S. Manegold, a James M. Cox Jr. professor of journalism at Emory University in Atlanta, said that Randel's prosecution ignores the fact that the unofficial flow of information between government employees and the reporters who cover them "is absolutely standard operating procedure for both sides."
Manegold said that although allegations that Randel sold the information make the situation ethically murky, the government's decision to prosecute him on a felony charge "sets up a dangerous precedent. ... It's not too different from McCarthyism. If an official says something, we all report it because we know it to be true. There is no counterbalance, no checks."
If people other than designated spokesmen are dissuaded from talking with the media because they fear prosecution, journalists "can't create a prism of information that gives us our one hope at a sense of real truth. If we are confined to official, pre-vetted statements, that's a terribly dangerous place to be."
DEA spokesman Will Glasby said that comparing the documents that Randel released to the Times to the information that law enforcement agents release to beat reporters "is like comparing apples and oranges."
"Absolutely, we provide information to the media," said Glasby. "But we're not selling classified information that is clearly in violation of federal law. Oranges is providing public information to a reporter just as I'm doing now. He provided written reports. ... You'd never get written reports out of me."
Court documents filed by federal prosecutors describe the information Randel provided to the Times as "sensitive and confidential" but not classified.
Rebecca Daugherty, the FOI Service Center director for the Reporters Committee for Freedom of the Press in Washington, D.C., called the decision to prosecute Randel "shocking."
"I think it's shocking the DEA took it that far," she said. "If it were classified information there would certainly be a reason to look at it. ... But sensitive and unclassified information is available to the public under the FOI act. I can't see how you can have a person jailed for giving that information out."