“Leaks related to national security can put people at risk. They can put men and women in uniform that I’ve sent into the battlefield at risk. 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.”
President Obama — News conference (2013)
“The current state of whistleblowing prosecutions under the Espionage Act makes a truly fair trial wholly unavailable to an American who has exposed classified wrongdoing. Legal scholars have strongly argued that the US Supreme Court – which has never yet addressed the constitutionality of applying the Espionage Act to leaks to the American public – should find the use of it overbroad and unconstitutional in the absence of a public interest defense.”
Pentagon Papers whistleblower Daniel Ellsberg
January 19 2017 — Out of a total ten prosecutions under the Espionage Act against government officials accused of providing classified information to the media, seven have occurred during Obama’s Presidency. Follow us on Twitter: @Intel_Today
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UPDATE (January 19 2019) — President Barack Obama’s administration has prosecuted more whistleblowers than all previous administrations combined under the Espionage Act for leaking secrets.
President Trump has made clear that he believes both whistleblowers and journalists should be prosecuted for leaking or publishing classified information.
“This has been evidenced in the current Attorney General, Jeff Sessions’ repeated refusal to promise protections for journalists safeguarding their sources, and his announcement in November that his office had twenty-seven ongoing leak investigations.
Less than six months into Trump’s term, former National Security Agency (NSA) contractor Reality Winner was arrested and charged with gathering, transmitting, or losing defense information under the Espionage Act.” [RSF]
In June 2017, Reality Leigh Winner was arrested and charged with “willful retention and transmission of national defense information,” a felony under the Espionage Act. On June 8, 2017, she pleaded not guilty and was denied bail.
On June 21 2018, Winner asked the court to allow her to change her plea to guilty and on June 26 she pleaded guilty to one count of felony transmission of national defense information. Winner’s plea agreement with prosecutors called for her to serve five years and three months in prison followed by three years of supervised release.
The United States — after falling two places during the course of the previous year — ranked 43rd out of 180 countries on RSF’s 2017 World Press Freedom Index. The United States ranks 45th in the 2018 World Press Freedom Index.
END of UPDATE
The Espionage Act of 1917 makes it a crime to disclose information “relating to the national defense.”
Prior to the Obama administration, there had been only three known cases resulting in indictments in which the Espionage Act was used to prosecute government officials for leaks. (Daniel Ellsberg and Anthony Russo 1971, Samuel Morison 1985 and Lawrence Franklin 2005. There is a similar case dating from 1945.) Here are the seven cases Obama added to the list.
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April 2010: Thomas Drake indicted
National Security Agency employee Thomas Drake was charged with violating the Espionage Act for retaining classified documents for “unauthorized disclosure.”
He was suspected to have leaked information on the agency’s surveillance program TrailBlazer. In June 2011, the government decided that they could not prosecute him without revealing details about the documents he supposedly leaked.
May 2010: Shamai Leibowitz convicted
In May 2010, Shamai K. Leibowitz, a translator for the FBI, admitted sharing information with a blogger and pleaded guilty under 18 U.S.C. § 798(a)(3) to one count of disclosure of classified information. As part of a plea bargain, he was sentenced to 20 months in prison.
June 2010: Bradley / Chelsea Manning arrested
Bradley Manning, a 22-year Army Private, was arrested after he told someone online that he was the source for Wikileaks’ biggest gets, including a quarter-million State Department cables. It will be almost two more years before he is ultimately charged in a military court.
In July 2013, a military tribunal judge found Manning not guilty of aiding the enemy – the most serious charge against him. He was found guilty of multiple counts under the Espionage Act and five counts of theft, among other charges.
The 35-year sentence was by far the longest punishment ever imposed in the United States for a leak conviction. Manning has been jailed for nearly seven years. On January 17 2017, President Obama commuted all but four months of the remaining prison sentence.
August 2010: Stephen Kim indicted
In August 2010, Stephen Jin-Woo Kim, a contractor for the State Department and a specialist in nuclear proliferation, was indicted under 18 U.S.C. § 793(d) for alleged disclosure in June 2009 of national defense information to reporter James Rosen of Fox News Channel, related to North Korea’s plans to test a nuclear weapon.
On 7 February 2014, Kim entered a guilty plea to a single felony count of disclosing classified national defense information to an unauthorized person, Rosen. Kim was sentenced to a 13-month prison term.
December 2010: Jeffrey Sterling indicted
Jeffrey Alexander Sterling, a former CIA agent was indicted under the Act in January 2011 for alleged unauthorized disclosure of national defense information to James Risen, a reporter for The New York Times, in 2003 regarding his book State of War.
On 22 December 2010, U.S. attorney Neil H. MacBride filed an indictment against Jeffrey Alexander Sterling on the Unlawful Retention and Unauthorized Disclosure of National Defense Information, Mail Fraud, Unauthorized Conveyance of Government Property, and Obstruction of Justice.
Sterling was arrested on 6 January 2011. Sterling was convicted of espionage charges on 26 January 2015. On 11 May 2015, Sterling was sentenced to 3½ years in prison and thus set for release in 2018. Jeffrey’s appellate hearing took place in early December 2016.
January 2012: John Kiriakou charged
John Kiriakou was charged with leaking information about the interrogation of an Al Qaeda leader and disclosing the name of a CIA analyst involved.
Former CIA John Kiriakou
Kiriakou gave an interview on ABC News in 2007 detailing the Bush administration’s use of waterboarding in interrogating terrorist suspects. He was convicted in October 2012 and sentenced to 2 1/2 years in prison.
June 14, 2013: Edward Snowden Charged
In June 2013, Edward Snowden was charged under the Espionage Act after releasing documents exposing the NSA’s PRISM Surveillance Program. The charges carry a penalty of up to 30 years in prison.
Future CIA Director Mike Pompeo has issued his own press release, calling Snowden a “liar and a criminal,” who deserves “prison rather than pardon.”
In a C-SPAN interview earlier this year, Pompeo went further, stating:
“He [Snowden ]should be brought back from Russia and given due process, and I think the proper outcome would be that he would be given a death sentence. Having put friends of mine, friends of yours who serve in the military today an enormous risk because of the information he stole and then released to foreign powers.”
Criticism
Numerous people have criticized the use of the Espionage Act against national security leakers.
A 2015 study by the PEN American Center found that almost all of the non-government representatives they interviewed, including activists, lawyers, journalists and whistleblowers, thought the Espionage Act had been used inappropriately in leak cases that have a public interest component.
Professor at American University Washington College of Law and national security law expert Stephen Vladeck has said that the law “lacks the hallmarks of a carefully and precisely defined statutory restriction on speech.”
Attorney and former whistleblower Jesselyn Radack notes that the law was enacted “35 years before the word ‘classification’ entered the government’s lexicon” and believes that “under the Espionage Act, no prosecution of a non-spy can be fair or just”.
Clemency for Chelsea Manning is ‘surprisingly generous’ of Obama
Former CIA analyst and whistleblower John Kiriakou joins RT America’s Anya Parampil to discuss the recent commutation of Chelsea Manning’s prison sentence and what the gesture might mean for other dissidents, as well as the CIA’s out-of-control politicization and dishonesty.
REFERENCES
Charting Obama’s Crackdown on National Security Leaks — Propublica
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One Year Ago — Obama’s Crackdown on National Security Leaks
Two Years Ago — Obama’s Crackdown on National Security Leaks
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