White House Uses Espionage Act to Pursue Leak Cases
Jake Tapper, the White House correspondent for ABC News, pointed out that the administration had lauded brave reporting in distant lands more than once and then asked, “How does that square with the fact that this administration has been so aggressively trying to stop aggressive journalism in the United States by using the Espionage Act to take whistle-blowers to court?”
He then suggested that the administration seemed to believe that “the truth should come out abroad; it shouldn’t come out here.”
Fair point. The Obama administration, which promised during its transition to power that it would enhance “whistle-blower laws to protect federal workers,” has been more prone than any administration in history in trying to silence and prosecute federal workers.
The Espionage Act, enacted back in 1917 to punish those who gave aid to our enemies, was used three times in all the prior administrations to bring cases against government officials accused of providing classified information to the media. It has been used six times since the current president took office.
Setting aside the case of Pfc. Bradley Manning, an Army intelligence analyst who is accused of stealing thousands of secret documents, the majority of the recent prosecutions seem to have everything to do with administrative secrecy and very little to do with national security.
In case after case, the Espionage Act has been deployed as a kind of ad hoc Official Secrets Act, which is not a law that has ever found traction in America, a place where the people’s right to know is viewed as superseding the government’s right to hide its business.
In the most recent case, John Kiriakou, a former C.I.A. officer who became a Democratic staff member on the Senate Foreign Relations Committee, was charged under the Espionage Act with leaking information to journalists about other C.I.A. officers, some of whom were involved in the agency’s interrogation program, which included waterboarding.
For those of you keeping score, none of the individuals who engaged in or authorized the waterboarding of terror suspects have been prosecuted, but Mr. Kiriakou is in federal cross hairs, accused of talking to journalists and news organizations, including The New York Times.
Mr. Tapper said that he had not planned on raising the issue, but hearing Mr. Carney echo the praise for reporters who dug deep to bring out the truth elsewhere got his attention.
“I have been following all of these case, and it’s not like they are instances of government employees leaking the location of secret nuclear sites,” Mr. Tapper said. “These are classic whistle-blower cases that dealt with questionable behavior by government officials or its agents acting in the name of protecting America.”
Mr. Carney said in the briefing that he felt it was appropriate “to honor and praise the bravery” of Ms. Colvin and Mr. Shadid, but he did not really engage Mr. Tapper’s broader question, saying he could not go into information about specific cases. He did not respond to an e-mail message seeking comment.
In one of the more remarkable examples of the administration’s aggressive approach, Thomas A. Drake, a former employee of the National Security Agency, was prosecuted under the Espionage Act last year and faced a possible 35 years in prison.
His crime? When his agency was about to spend hundreds of millions of dollars on a software program bought from the private sector intended to monitor digital data, he spoke with a reporter at The Baltimore Sun. He suggested an internally developed program that cost significantly less would be more effective and not violate privacy in the way the product from the vendor would. (He turned out to be right, by the way.)
He was charged with 10 felony counts that accused him of lying to investigators and obstructing justice. Last summer, the case against him collapsed, and he pleaded guilty to a single misdemeanor, of misuse of a government computer.
Jesselyn Radack, the director for national security and human rights at the Government Accountability Project, was one of the lawyers who represented him.
“The Obama administration has been quite hypocritical about its promises of openness, transparency and accountability,” she said. “All presidents hate leaks, but pursuing whistle-blowers as spies is heavy-handed and beyond the scope of the law.”
Mark Corallo, who served under Attorney General John D. Ashcroft during the Bush administration, told Adam Liptak of The New York Times this month that he was “sort of shocked” by the number of leak prosecutions under President Obama. “We would have gotten hammered for it,” he said.
As Mr. Liptak pointed out, it has become easier to ferret out leakers in a digital age, but just because it can be done doesn’t mean it should be.
These kinds of prosecutions can have ripples well beyond the immediate proceedings. Two reporters in Washington who work on national security issues said that the rulings had created a chilly environment between journalists and people who work at the various government agencies.
During a point in history when our government has been accused of sending prisoners to secret locations where they were said to have been tortured and the C.I.A. is conducting remote-controlled wars in far-flung places, it’s not a good time to treat the people who aid in the publication of critical information as spies.
And it’s worth pointing out that the administration’s emphasis on secrecy comes and goes depending on the news. Reporters were immediately and endlessly briefed on the “secret” operation that successfully found and killed Osama bin Laden. And the drone program in Pakistan and Afghanistan comes to light in a very organized and systematic way every time there is a successful mission.
There is plenty of authorized leaking going on, but this particular boat leaks from the top. Leaks from the decks below, especially ones that might embarrass the administration, have been dealt with very differently.
E-mail: carr [at] nytimes [dot] com;