Charting Obama’s Crackdown on National Security Leaks
We’ve updated our timeline to reflect new developments. It was originally published on March 9, 2012.
Last week, the AP announced the Department of Justice had secretly seized reporters’ phone records while investigating a potential CIA leak. On Monday, The Washington Post revealed the DOJ had also targeted Fox News reporter James Rosen as part of its criminal leak case against Stephen Kim, outlined below.
None of the journalists in either case are being charged with a crime. But the news has prompted outcry that Obama’s hard line on leaks could have a "chilling effect" on investigative reporting that depends on inside sources.
While the Obama administration promised to strengthen protections for whistleblowers, it has launched an aggressive crackdown on government employees who have leaked national security information to the press.
The administration has brought a total of six cases under the Espionage Act, which dates from World War I and criminalizes disclosing information “relating to the national defense.” (The Department of Justice has five criminal cases and the Army has one against alleged Wikileaks source Bradley Manning.) 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.
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
Analyst for the military and RAND
1985: Samuel Morison convicted
Aug. 2005: Lawrence Franklin indicted
State Department analyst
Jan. 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.
Nov. 2007: Thomas Drake’s house raided
FBI agents raided the house of National Security Agency employee Thomas Drake, who was suspected of leaking information on the agency’s domestic surveillance program TrailBlazer.
April 2010: Drake indicted
May 2010: Shamai Leibowitz convicted
Leibowitz, a linguist and translator for the FBI, pled 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
Army intelligence analyst
Aug. 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.
The Washington Post reported this week that Fox News journalist James Rosen was investigated for publishing classified information the DOJ suspected was provided by Kim. 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.”
Dec. 2010: Jeffrey Sterling indicted
May 2011: James Risen subpoenaed
New York Times reporter
New York Times reporter James Risen was ordered to testify in the trial of Jeffrey Sterling, who prosecutors believed 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 February of this year, the government appealed a decision to limit the scope of what Risen could be called to testify on.
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.
Jan. 2012: John Kiriakou charged
former CIA officer
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, in 2007, gave an interview on ABC News detailing the Bush administration’s use of waterboarding in interrogating terrorist suspects.
Feb. 2012: Bradley Manning charged
October 25, 2012: John Kiriakou convicted
February 28, 2013: Bradley Manning pleads guilty to 10 of 22 charges
Manning plead guilty in military court to providing files to Wikileaks, but not to violating the Espionage Act and other charges.
Manning’s pre-trial hearings ended on May 21, 2013, and his full trial is set to begin June 3. Courts have maintained an unprecedented level of secrecy over the case, withholding documents and allowing 24 witnesses to testify in secret during the upcoming trial.
Christie Thompson contributed to this story.
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 willfully 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 whistleblowers. 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 willfully 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.Image Sources: Associated Press, Getty Images, Wikimedia Commons