Bradley Manning’s conviction under the Espionage Act is the latest development in the Obama administration’s push to prosecute leaks.
Despite promises to strengthen protections for whistleblowers, the Obama administration has launched an aggressive crackdown on government employees who have leaked national security information to the press.
With charges filed against NSA leaker Edward Snowden this June, the administration has brought a total of seven cases under the Espionage Act, which dates from World War I and criminalizes disclosing information “relating to the national defense.” Prior to the current administration, there had been only three known casesresulting in indictments in which the Espionage Act was used to prosecute government officials for leaks.
The administration has also targeted journalists. In May, it was revealed that the Department of Justice had secretly seized AP reporters’ phone recordswhile investigating a potential CIA leak, and targeteda Fox News reporter as part of a criminal leak case (outlined below). No journalist has been chargedwith a crime. But the news prompted an outcry that Obama’s hard line on leaks could have a "chilling effect" on investigative reporting that depends on inside sources. (In response, the Justice Department issued new guidelines limiting when journalists’ records can be sought.)
A spokesman for the Department of Justice told us the government “does not target whistleblowers.” (Read their full statement.) As they point out, government whistleblower protections shield only those who raise their concerns through the proper channels within their agency—not through leaks to the media or other unauthorized persons.
Director of National Intelligence James Clapper summed up the government’s approach in a 2010 memo: “people in the intelligence business should be like my grandchildren—seen but not heard.”
Here’s a timeline of leak prosecutions under the Espionage Act, showing how they’ve picked up steam under Obama.
1971: Daniel Ellsberg and Anthony Russo indicted
1985: Samuel Morison convicted
August 2005: Lawrence Franklin indicted
January 2006: Lawrence Franklin convicted
Franklin pled guilty and was sentenced to 12 years in prison, which was later reduced to ten months’ house arrest. The two lobbyists were also indicted for receiving unauthorized information—a highly unusual charge—but the case against them was dropped in May of 2009.
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. The case against Drake began under the Bush administration - FBI agents raided his house in 2007.
May 2010: Shamai Leibowitz convicted
Leibowitz, a linguist and translator for the FBI, pleaded guilty to leaking classified information to a blogger. He was sentenced to 20 months in prison. At the time of his sentencing, not even the judge knew exactly what he had leaked, though later disclosures indicated it was FBI wiretaps of conversations between Israeli diplomats about Iran.
June 2010: Bradley 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 more almost two years before he is ultimately charged in a military court. In February 2013, he pleaded guilty to providing files to Wikileaks, but not to violating the Espionage Act and other charges. Courts have maintained an unprecedented level of secrecy over the case, withholding documents and allowing witnesses to testify in secret.
August 2010: Stephen Kim indicted
State Department analyst
Kim, an analyst working under contract with the State Department, was indicted for giving classified information to Fox News about North Korea. His case is still pending. In a July 2013 ruling in the case, a federal judge said the government did not need to show that the information leaked could have damaged national security – just that Kim knew it could and willfully leaked the information.
The Washington Post reported in May 2013 that Fox News journalist James Rosen was investigated in the Kim case. The Department seized Rosen’s phone records and emails, and tracked his “comings and goings from the State Department.” Rosen was not charged with a crime, but an FBI investigator wrote that there was evidence he was a “co-conspirator.”
December 2010: Jeffrey Sterling indicted
Sterling, a CIA officer, was charged with leaking information about the CIA’s efforts against Iran’s nuclear program. His case is still pending.
New York Times reporter James Risen was ordered to testify in Sterling’s trial. Prosecutors believed Kim had leaked material to Risen for his book, “State of War.” Risen fought the subpoena, arguing that it was his First Amendment right to protect his source’s confidentiality. In July 2013, Risen lost that fight, when a federal appeals court said there was no “reporters privilege” that could allow him not to testify.
Jun. 2011: Case against Thomas Drake dropped
Drake pled guilty to a minor charge, not under the Espionage Act, and served no prison time. The government had decided that they could not prosecute him without revealing details about the documents he supposedly leaked. Critics saw the government’s withdrawal as a sign that they had overreached in using the Espionage Act.
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. Kiriakou gave an interview on ABC News in 2007 detailing the Bush administration’s use of waterboarding in interrogating terrorist suspects.
October 2012: John Kiriakou convicted
June 14, 2013: Edward Snowden Charged
Edward Snowden, who leaked documents about the NSA’s secret surveillance programs, was charged with theft of government property and two counts of disclosing information under the Espionage Act – charges which together carry a penalty of up to 30 years in prison.
July 30, 2013: Bradley Manning Convicted
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. He could spend decades in prison.
Statement from the Department of Justice:
· The Justice Department has always taken seriously cases in which government employees and contractors entrusted with classified information are suspected of wilfully disclosing such classified information to those not entitled to it. As a general matter, prosecutions of whose who leaked classified information to reporters have been rare, due, in part, to the inherent challenges involved in identifying the person responsible for the illegal disclosure and in compiling the evidence necessary to prove it beyond a reasonable doubt in a court of law. Prosecutorial decisions are always based on the facts, the evidence and the law. The Department has been working with the intelligence community not only to expedite but also to improve the handling of such cases. The Justice Department has also been working with these agencies to ensure that that the intelligence community and other agencies have remedies of their own to address employees suspected of leaking classified information in those instances where criminal prosecution is not feasible.
· The Justice Department does not target whistle-blowers. Should any federal employee wish to blow the whistle or report government wrongdoing, there are well-established mechanisms for doing so with the Offices of Inspector General of their respective agencies. With regard to classified information, there is a particular statute providing lawful mechanisms for reporting such matters. We always encourage federal employees to do so. However, we cannot sanction or condone federal employees who knowingly and wilfully disclose classified information to the media or others not entitled to receive such information. An individual in authorized possession of classified information has no authority or right to unilaterally determine that classified information should be made public or disclosed to those not entitled to it. The leaker is not the owner of such information and only the owner can declassify such information.
As a general matter and as provided by the law, federal regulations and Justice Department guidelines, whenever the Justice Department conducts an investigation of this sort, we seek to strike the proper balance between First Amendment freedoms and the law enforcement and national security interest in investigating unauthorized disclosures of classified information. In recognition of the importance of freedom of the press to a free and democratic society, it is the Justice Department's policy that the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues.
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