Despite openness pledge, President Obama pursues leakers
(POLITICO) The Obama administration, which famously pledged to be the most transparent in American history, is pursuing an unexpectedly aggressive legal offensive against federal workers who leak secret information to expose wrongdoing, highlight national security threats or pursue a personal agenda.
In just over two years since President Barack Obama took office, prosecutors have filed criminal charges in five separate cases involving unauthorized distribution of classified national security information to the media. And the government is now mulling what would be the most high-profile case of them all – prosecuting WikiLeaks founder Julian Assange.
That’s a sharp break from recent history, when the U.S. government brought such cases on three occasions in roughly 40 years.
The government insists it’s only pursuing individuals who act with reckless disregard for national security, and that it has an obligation to protect the nation’s most sensitive secrets from being revealed. Anyone seeking to expose malfeasance has ample opportunity to do so through proper channels, government lawyers say.
But legal experts and good-government advocates say the hard-line approach to leaks has a chilling effect on whistleblowers, who fear harsh legal reprisals if they dare to speak up.
Not only that, these advocates say, it runs counter to Obama’s pledges of openness by making it a crime to shine a light on the inner workings of government – especially when there are measures that could protect the nation’s interests without hauling journalists into court and government officials off to jail.
“It is not to me a good sign when government chooses to go after leakers using the full force of criminal law when there are other ways to handle these situations,” said Jane Kirtley, a University of Minnesota law professor and former executive director of the Reporters Committee for Freedom of the Press. “Of course, the government has to have some kind of remedy, [but] I’d certainly hope they’re being very selective about these prosecutions.”
Jesselyn Radack, a former Justice Department attorney now with the Government Accountability Project, said it’s “very destructive and damaging to be going after people for leaks that embarrass the government.” The policy, she said, is “a disturbing one particularly from a president who got elected pledging openness and transparency — and someone who also got elected thanks to a lot of [Bush-era] scandals that were revealed by whistleblowers.”
But Jack Goldsmith, a senior Justice Department official under President George W. Bush, said the U.S. intelligence apparatus — which is perhaps most at risk from leaks of classified information — has pressured Obama’s Justice Department to get tough.
“Leaking has gotten a lot worse over the last decade,” said Goldsmith, now a law professor at Harvard . “It’s viewed as sort of crisis in the intelligence community in the sense that there is a strong perceived need to do something about it.”
Yet Goldsmith notes an apparent double standard: top White House and administration officials give unauthorized information to Washington reporters almost daily, but authorities will come down hard if rank-and-file employees get caught doing the same thing. “Top officials frequently leak classified information and nothing happens to them,” he said.
Still, leak prosecutions brought under Obama amount to “almost twice as many as all previous presidents put together,” noted Daniel Ellsberg, who changed history and helped set a legal precedent when he handed the Pentagon’s top-secret assessment of the Vietnam War to New York Times reporters four decades ago. “The campaign here against whistleblowers is actually unprecedented in legal terms.”
The stakes in the White House’s anti-leak drive could rise higher if the Justice Department decides to prosecute Wikileaks’ Assange for facilitating the publication of hundreds of thousands of classified U.S. military reports from Iraq and Afghanistan, along with thousands of sensitive cables from American diplomats overseas. Prosecuting the enigmatic Australian, however, is easier said than done.
Trying to extradite Assange and haul him into a U.S. court is certain to ignite hot debate over First Amendment protections and raise questions about whether mainstream journalists will be the next targets for prosecution. But if the Obama administration doesn’t move against Assange, it could spur outrage in the intelligence community and bipartisan anger on Capitol Hill.
It’s hard to say how much of the campaign to punish leakers stems from the current administration’s desire to make it a priority and how much stems simply from the glacial-paced investigation of cases left over from Bush’s term. Two of the five prosecutions brought since Obama took office pertain to alleged leaks that sprung under his predecessor.
The Bush-era cases include, former National Security Agency official Thomas Drake, who is set to stand trial next month in a case stemming from leaks that led to Baltimore Sun articles in 2006 and 2007 about alleged waste in classified NSA surveillance programs. In September, former Central Intelligence Agency officer Jeffrey Sterling is scheduled to go on trial for allegedly leaking information about a botched CIA covert operation to sabotage Iran’s reputed nuclear weapons program — a plot disclosed in Times reporter James Risen’s 2006 book, “State of War.”
Another three prosecutions relate to leaks on Obama’s watch, however, including the case of Army Private Bradley Manning — perhaps the highest-profile leak case in American history. Manning, a boyish, 23-year-old intelligence analyst, allegedly helped Assange and Wikileaks obtain hundreds of thousands of military reports and diplomatic cables, many of them classified.
The military filed more charges against Manning last week including a count of aiding the enemy — a capital offense, though prosecutors say they won’t seek the death penalty.
Justice Department spokesman Matt Miller declined to comment on whether the Obama administration is taking a tougher line against leakers, but said “we take the leaking of classified information very seriously.” However, court documents indicate that punishing leakers seems to have become a higher priority.
In a brief filed in January seeking to deny Sterling bail, prosecutors argued that leaking is more pernicious and harmful to national security than old-school, cash-for-info spying. Unlike an intelligence swap or document transaction with a foreign agent, prosecutors wrote, Sterling “elected to disclose the classified information publicly through the mass media” where any U.S. enemy could read it, “thus posing an even greater threat to society.”
Nevertheless, despite talk of a scorched-earth campaign against leakers, there have been no charges filed in connection with some of the most significant secrets revealed during the past decade — including disclosures to The New York Times about the Bush-era effort to intercept some phone calls and e-mails without warrants.
The lack of charges over the warrantless wiretapping leak, which hit the front page of the Times in December 2005, is particularly notable since former Justice Department attorney Thomas Tamm told Newsweek more than two years ago that he was a key source for the story.
“He basically put a target on his head and said, ‘Come get me,’” said Steven Aftergood, with the Federation of American Scientists’ Project on Government Secrecy. “And they didn’t.”
In addition, there have been no prosecutions or even signs of serious investigation into a large volume of classified leaks to Washington Post reporter Bob Woodward for the books he has written on war policy under both recent White Houses. POLITICO reported last year that Woodward sometimes arrived for official interviews carrying classified maps.
While the Obama administration has, like its predecessors, steered clear thus far of charging journalists with receiving or publishing classified information, it has not shied away from using the courts to pry out information about a reporter’s sources. Last year, the Justice Department re-issued a grand jury subpoena to Risen in an apparent effort to determine his sources for the Iran nuclear story. Attorney General Eric Holder is believed to have personally authorized the subpoena, since under department rules, decisions to subpoena reporters are made at the highest level.
“I was extremely surprised that the Risen subpoena was reinstituted. That struck me as a battle that no one needed to have,” Hearst Corp. general counsel Eve Burton, a veteran of First Amendment court fights told POLITICO after word of the subpoena emerged last year. “I thought Eric Holder would be a more moderating force in that regard.”
A judge later quashed the subpoena at Risen’s request, heading off a confrontation that could well have resulted in him going to jail to maintain his silence.
The Obama administration’s angst over leaks begins at the top. In private White House meetings, the president has reportedly railed against disclosure of national security information, including the breaches that dogged his review of the U.S. Afghanistan/Pakistan policy in 2009. After one eruption from the president, National Counterintelligence Executive Bear Bryant was ordered to come up with new ways to plug the leaks.
Officials have been tight-lipped about Bryant’s review, but a source told POLITICO the administration will use not only the law but also employee discipline procedures and classified clearance cancellations to punish the suspects.
Some lawyers also believe that pressure from both parties in Congress, about Wikileaks in particular, is driving the administration’s tough line.
“This is worse than Ames and Hanssen combined because of the totality of the information,” said House Intelligence Committee Chairman Mike Rogers (R-Mich.), referring to former CIA analyst Aldrich Ames and former FBI agent Robert Hanssen, both of whom are serving life terms for spying for Russia.
Rogers said century-old statutes for dealing with national security information need to be updated.
Already, Sens. John Ensign (R-Nev.), Scott Brown (R-Mass.), Joe Lieberman (I-Conn.) and House Homeland Security Committee Chairman Peter King (R-N.Y.) have proposed a bill that would make it a crime to disclose the name of a classified U.S. source or informant. And Sen. Ben Cardin (D-Md.) has drafted legislation that would make it easier to charge and convict leakers.
An aide to Cardin called his measure “a balanced approach” and said it would enhance whistleblower protections, but critics warned Cardin’s bill edges close to Britain’s Official Secrets Act—a statute that makes it a crime to leak anything the government designates as secret.
“Sen. Cardin disavows the Official Secrets Act label, but the fact is that his bill would sanctify whatever is classified,” Aftergood said. “The bill says that whatever is classified is presumptively properly classified. That does not correspond to anyone’s experience of classification policy. Not even the president believes that. … So, why write it into law?”
Aftergood said that if the law passed it would discourage what he termed “good leaks,” which expose government wrongdoing or abuse.
“The downside is very serious,” he said. “Should disclosure of prisoner abuse at Abu Ghraib prison have been a felony just because the information was classified at the time? Should the disclosure of domestic surveillance that violated the Foreign Intelligence Surveillance Act have been a felony. I say, no. By failing to allow for the possibility of good leaks, the bill sweeps too broadly.”