The Obama administration’s zealous prosecution of those who leak classified information to news media is triggering a hot debate in America over where to draw the line between tight-lipped national security and the need for government transparency in a free society.
The high-profile court martial of Army Pfc. Bradley Manning over the WikiLeaks episode, followed by US efforts to bring Edward Snowden back to the US after his revelations about domestic surveillance programs, are the latest catalysts for discussions now raging – from the halls of Congress to oped pages to dinner tables across the country.
At the center of it all is the Espionage Act, a 1917 law drafted to protect national defense information in time of war. On one side are those who see leakers such as Manning and Mr. Snowden as spies and traitors; on the other are those who see their decisions to reveal US secrets as a measure of public service, akin more to whistle-blowing or even true patriotism.
With Manning sentenced August 21 to 35 years in military prison, the Obama administration has its latest poster child for the punishment that can befall those who disclose classified secrets to journalists. Indeed, the Manning-WikiLeaks case has been a major trigger for the government’s intense push to plug leaks – a strategy that marks a departure from previous presidents, who seldom used the Espionage Act to go after federal workers caught leaking material to the news media (as opposed to leaking to, say, the nation’s avowed enemies).
Under President Obama, seven people have been prosecuted under the act for leaking classified documents to the press, compared with three during all previous presidencies.
“The statistics are startling and show that something new is going on,” says Steven Aftergood, director of the nonprofit Federation of American Scientists’ Project on Government Secrecy. “The number of [Espionage Act] prosecutions for disclosures to the media has now more than doubled compared to all previous administrations combined.”
Penalties under the Espionage Act range from 10 years to life in prison – or the death penalty in cases in which a spy’s intent is to help a foreign government. Manning, although found not guilty of “aiding the enemy” for releasing hundreds of thousands of documents to WikiLeaks for publication on the Internet, was convicted on six counts of violating the Espionage Act.
Such prosecutions are intended to send a warning to federal employees who may be considering leaking classified information to the media, say whistle-blower and media advocates. They characterize the Obama administration crackdown as the most ambitious antileak crusade in US history – and predict that it could have a chilling effect on press freedoms and the public’s right to know.
America’s “approach to national security secrets is badly out of whack,” says Elizabeth Goitein, co-director of the Liberty and National Security Program at New York University School of Law’s Brennan Center. “Anyone who is caught leaking classified information, regardless of his intent or the effect of his disclosures, is prosecuted under the Espionage Act as a traitor. Yet the government is never held accountable for inappropriate secrecy or for any misconduct it may hide. This imbalance is unhealthy for our democracy.”
As Manning’s leaked information gushed onto the Internet via WikiLeaks in early 2010, the administration began hitting back at past leakers who had been fired or demoted. Caught up in it was Thomas Drake, a former executive at the National Security Agency (NSA), who in 2005 had leaked inside information to a newspaper reporter about waste and failures of one of the agency’s terrorism surveillance programs. In April 2010, the Obama administration charged him under the Espionage Act for that leak five years earlier, alleging that the leaked information was classified. But a year later, all five espionage charges against him were dropped, with the judge chastising the government. Today, Mr. Drake maintains that he never leaked classified information and was just a whistle-blower doing his patriotic duty.
Of the seven individuals prosecuted during Mr. Obama’s tenure, three have gone to jail. (Two other cases are pending, charges were dropped in Drake's, and Snowden – who this spring gave certain newspapers classified documents about secret NSA surveillance programs that he claims are illegal – is not in US custody.)
More indictments may lie ahead. Retired Gen. James Cartwright – until August 2011 the vice chairman of the Joint Chiefs of Staff – in June was served a “target letter” indicating he is being investigated for leaking to the media details of a secret cyberweapon program, NBC News reported.
Defenders of the administration’s approach say the government has a right and a duty to plug leaks and to pursue leakers.
“If someone morally disagrees with the policy of government and unilaterally reveals a secret just because they believe it to be morally wrong, that puts our government on an unstable or anarchic path,” says Rahul Sagar, an assistant professor of politics at Princeton University and the author of the forthcoming book “Secrets and Leaks: the Dilemma of State Secrecy.”
“If someone can just break regulations whenever they don’t like them, then what’s the point of having regulations,” he adds. “OK, I don’t like nuclear weapons, so I’ll reveal their locations. I don’t like the president’s Air Force One, so I’ll reveal its flight itinerary. Government can’t tolerate this. You try to change the law. You don’t just break the law.”
Behind the Obama team’s toughened stance toward leakers, say experts on both sides, are three key developments. One is the advent of mass leaks of classified information, made possible by digital technology. Another is better tools for tracking down those who leak. And the third is an overheated political environment that, coupled with overclassification of documents as secret, makes it difficult for the administration to use a softer touch.
Mass leaks shock White House
Before the Digital Age, leakers could get their hands on a classified document or two. Now, it’s possible to store thousands of documents on a tiny thumb-drive or a CD, making a single leak much more damaging than in the past.
“When you have so much more access to communications and information, it makes it so much easier to leak,” says James Lewis, a cybersecurity expert at the Center for Strategic and International Studies (CSIS), a Washington think tank.
That became blazingly apparent in April 2010, when WikiLeaks published leaked video footage of a 2007 air strike showing Iraqi journalists in Baghdad killed by a US military helicopter. Next, WikiLeaks – fed by Manning – published more than 76,000 classified US documents about the war in Afghanistan and many more that it called the “Iraq War Logs.” In all, Manning leaked more than 700,000 documents and other material, including some 250,000 diplomatic cables. A 2010 Pentagon report concluded that initial leaks, including the “war logs,” did not compromise intelligence sources or methods. But it did say the disclosures might damage US security in the future.
“WikiLeaks was such a shock to the Obama administration that it triggered an intense reaction and determination to squelch future leaks,” Mr. Aftergood says. “Security officials were determined to prevent a breach of that scale from occurring again. Part of that was a new zero tolerance policy toward leakers.”
The crackdown apparently comes from the very top.
“The president himself was angry over WikiLeaks,” says a federal employee who asked not to be named because he is not permitted to speak to the press. “I was told that the government order to ‘make sure this [WikiLeaks] never happens again’ came direct from the president.”
The WikiLeaks reports may have prompted the government to take a second look at old cases of unauthorized disclosures of classified information. As of last year, hundreds of such cases were under review by the Office of the Inspector General of the US Intelligence Community, according to a Federation of American Scientists (FAS) report in June. “The Investigations Division [of the IC Office of the Inspector General] is reviewing 375 unauthorized disclosure case files,” according to a newly declassified report from Inspector General I. Charles McCullough, covering November 2011 through June 2012 and cited by FAS.
Of course, it’s a longstanding tradition that certain leaks of classified information – emanating from Congress or the White House itself, for instance – won’t be prosecuted, raising the prospect of a double standard. The Obama administration, for one, has been accused of leaking the identities of members of SEAL Team 6 and other classified information to producers of “Zero Dark Thirty,” a movie about the raid to capture or kill Osama bin Laden, according to news reports.
But others say leaks to reporters are out of hand and must be stopped.
“It used to be that the press was fairly good about not revealing intelligence sources and methods,” says Gabriel Schoenfeld, a senior fellow at the Hudson Institute and author of “Necessary Secrets,” a history of leaking and government response to leaking. “But that began to break down during the Bush administration, and it’s totally broken down now.” The leaks of NSA programs to newspapers and the leaking of diplomatic cables and military documents to WikiLeaks are examples where “our secrets are being disseminated in very damaging way,” he says.
A hunt made easier
The burst in spying charges is made possible in part by the government’s ability to identify leakers by analyzing e-mail, phone-call metadata, and other tools to determine which workers have been in contact with reporters, Aftergood says.
“We leave more electronic footprints in the form of telephone and e-mail records than in the past,” he says. “The old-fashioned meeting in the parking lot, or the mailing of documents in a plain brown envelope, has been superseded by tracking of unencrypted e-mail and cellphone calls, which are inherently traceable.”
That, in turn, has made the press a nearly automatic surveillance target in new leak cases.
In May, the Associated Press reported that the Justice Department had subpoenaed phone records of reporters and editors for the months prior to a story it had reported on a CIA operation in Yemen. The goal was to determine the source for the story – what US Attorney General Eric Holder described as a “serious” leak.
That same month, the Washington Post reported that James Rosen, a Fox News reporter based in Washington, had been designated a “co-conspirator” in the espionage prosecution of Stephen Kim, a State Department contractor. Indicted in 2010, Mr. Kim allegedly leaked classified information to Mr. Rosen, who was working on an article about North Korea’s nuclear program.
Designating a member of the press as a co-conspirator in an espionage case was something new. It allowed the FBI to obtain a search warrant to read Rosen’s e-mails and to track his State Department visits, the Post reported.
Mr. Holder has since clarified that the Justice Department is unlikely to prosecute reporters. But he also asserted that, as part of an investigation, the designation was warranted so that the government could get a search warrant to obtain “relevant evidence from a member of the news media.”
The Justice Department did not respond to multiple requests for an interview or to a list of questions.
Journalism advocates strenuously object.
“It’s just a good example of the Obama administration trying to use every club at its disposal,” says Ellen Shearer of the National Security Journalism Initiative at the Medill School of Journalism at Northwestern University, near Chicago. “For journalists, it’s overreach – using the law in a way I don’t think it was intended to be used.”
Too many secret documents
The rise in leak prosecutions is also related to the problem of “overclassification” – documents that are routinely classified but should not be, Mr. Schoenfeld and others say.
In 2010, the Obama administration classified 77 million documents – a 44 percent increase over the previous year, according to “Fighting for the Press,” an insider’s look at the leak of the Pentagon Papers by James Goodale, a leading First Amendment lawyer. The book notes, too, that 4 million government employees and contractors have clearance to access those classified documents.
“What we are seeing in the Obama administration prosecutions is a vigorous attempt to defend a system of classification that hasn’t been rethought since the cold war,” says Dr. Lewis at CSIS. “We have brought into the 21st century a system designed to fight the Soviet Union.”
A recent example of overclassification, Lewis says, is Presidential Policy Directive-20, or PPD-20, a top-secret document leaked to newspapers in June. The document, signed by Mr. Obama last fall, directs that cyberweapons be developed that can be unleashed with “little or no warning” against enemies worldwide.
“There wasn’t much in that document that really needed to be secret,” Lewis says. “So someone leaked PPD-20. But frankly it should have been out there for the public with maybe just a couple of [para]graphs cut.”
Leaks ‘endanger lives’
The Obama administration casts its pursuit of leakers of national security secrets as a bid to save lives – and it shows no sign of letting up its prosecutions of leaks to the press.
“Leaks related to national security can put people at risk,” Obama said at a May 16 press conference. “So I make no apologies, and I don’t think the American people would expect me as commander in chief not to be concerned about information that might compromise their missions or might get them killed.”
But some also see in Obama’s tough stance an attempt to insulate himself from accusations of being weak on national security, especially given the vicious political climate in Washington.
“I think the Obama administration is intent on protecting its flank on national security grounds and, when it can do so in small ways, it will do it – including prosecuting leaks hard,” says a former intelligence official speaking on background. “It doesn’t want to be criticized by the Republican Party for being soft on leaks.”
Others put it more benignly.
“There was some criticism of the Justice Department in the [Fox News] Rosen case,” Aftergood says. “But there’s still nobody in Congress telling the administration they should ease up. So politics have favored the aggressive response.”
Whistle-blower advocates say leaks that harm national security should be prosecuted. But they question why Espionage Act indictments are being brought over routine leaks to reporters that do not really imperil national security – as in the cases of Drake, Mr. Kim, and others.
Others say it's hard to know how such espionage prosecutions of leakers – and monitoring of reporters – will affect the news media's ability to report.
“The Snowden and Manning cases show that technology allows for massive disclosures and indiscriminate disclosures, which are new things,” Schoenfeld says. “But we’ve got other types of leakers, too. And when you’ve got this large number of leakers all being pursued by the Justice Department, well, it means we’re in uncharted waters.”