U.S. Agencies Lack a Secrets Policy

Over the past 20 years, dozens of military and civilian employees of the U.S. government have been punished for taking classified documents home from work without authorization. But few of these incidents have been made public, and the penalties have been extremely inconsistent, according to current and former federal officials.

Congress, the Justice Department and the FBI are grappling with how to achieve greater fairness in such cases as they review the treatment of John M. Deutch, a former CIA director who lost his security clearances but was not prosecuted for keeping secrets on ordinary home computers.

An aide to Atty. Gen. Janet Reno said she was deeply concerned about the appearance of inequity in the handling of Deutch’s case and that of Wen Ho Lee, a former scientist at Los Alamos National Laboratory who faces trial and a possible life sentence for transferring nuclear secrets to a non-secure computer and portable tapes, seven of which are missing.

Military Receives Tougher Punishment

A review of roughly similar cases that have come to light through interviews, administrative hearings and court records indicates that military personnel generally receive harsher punishment than civilians, even when service personnel have mishandled documents that are of little consequence and civilians have compromised secrets that are clearly important. Moreover, the government’s response to civilian cases has varied widely, from firing to a minor reprimand to no action at all.

Justice Department officials say they generally do not prosecute civilians at the CIA, Pentagon, State Department or other federal agencies who mishandle secret documents, as long as there is no evidence of criminal intent, the information is not divulged to a third party, and the employees are disciplined administratively by their agencies.

A former Justice Department official who handled such cases said the practice of not prosecuting civilians for security violations developed more than 20 years ago “so as not to embarrass [federal agencies or the White House] in the courtroom.”

“No matter how gross the violation, there would be no prosecution if the agency took strong administrative action,” such as removal from the job and loss of security clearances, the former official said.

Military personnel often are treated more severely. Jail sentences or stiff administrative penalties, such as demotions and discharges, are common for service members caught removing classified material without authorization.

“If I had top-secret information on my home computer” while on active duty, “I would be investigated by the criminal investigative division, I would lose my clearance forever, and if it were top-secret or above, as it was in the Deutch case, I cannot imagine not being court-martialed--with jail time,” said retired Army Lt. Col. Ralph Peters, an author and military analyst.

Some people with knowledge of past civilian and military cases, many of which have never been made public, allege a pattern of unfairness.

“There is a double standard. The more senior you are, the less chance you pay a heavy penalty,” said a former senior intelligence official. He said a top Pentagon official during the Nixon administration was found to have committed serious violations, and “everyone just walked away from it.”

“There’s no accountability,” agreed Melvin A. Goodman, a former senior CIA analyst and professor of international security at the National War College. “What Deutch did, that was pretty gross. Important people seem to get away with more than lesser people.”

The Deutch affair particularly rankles Norman A. Germino, who lost his job at the National Security Agency seven years ago for taking home documents that he contends were completely innocuous, such as a map and a foreign vocabulary list.

“The security people at NSA don’t distinguish between serious breaches of intelligence--something a spy would do--and inadvertent mistakes,” said Germino, who now works as a case manager in Maryland’s Division of Corrections. “Deutch, being the . . . top man in the intelligence community, probably had some serious stuff. My stuff, it was junk. And I never put it on a computer where people could access it.”

For comparison purposes, a report on the Deutch affair by the CIA’s inspector general also outlines a remarkably similar security breach that was punished more swiftly and firmly.

In November 1996, Fritz Ermarth, a CIA senior intelligence analyst, was found to have written a document with the highest level of classification on his home computer, which was used to visit Internet sites. As in Deutch’s case, members of Ermarth’s family had access to the computer.

Unlike in the Deutch case, the CIA general counsel’s office promptly filed a “crimes report” with the Justice Department, alerting prosecutors that a crime may have been committed. Ermarth was demoted in rank and salary, given a letter of reprimand barring raises for two years, and suspended without pay for a month. After the suspension, Ermarth’s clearances were restored, and he retired from the agency a year later.

One important difference in the cases is that Deutch had already left the CIA when his violation was discovered, and so he could not be demoted or docked in pay. But as director of the CIA, he bore responsibility to lead by example.

‘You Will Protect Sources and Methods’

“The director of central intelligence is the only person in the entire U.S. government whose job description says, ‘You will protect sources and methods,’ ” said Mark M. Lowenthal, former deputy secretary of State for intelligence and staff director of the House Permanent Select Committee on Intelligence.

Wen Ho Lee’s attorneys are expected to argue that he is a victim of selective prosecution, citing the Deutch case. The Justice Department contends that there is a vital difference: Lee is accused of gathering and copying secret data that was not necessary to his work, allegedly with intent to harm the U.S. or to aid a foreign power. Deutch was writing official memos as part of his job; although he used unsecured computers, there is no allegation that his intent was malevolent to the country.

It is impossible to know how often government employees take classified material home. But there are indications that the practice is not rare. The State Department investigated 38 incidents last year, and Energy Department officials say security officers have looked into seven cases of unauthorized removal of sensitive information over the past 13 months.