Thou Shalt Not Leak

In early 2012 at a White House press briefing ABC’s Jake Tapper asked why the U.S. applauded courageous reporting overseas but did the reverse at home. “How does that square with the fact that this administration has been so aggressively trying to stop aggressive journalism in the U.S. by using the Espionage Act to take whistleblowers to court?” The administration, he added, thinks “the truth should come out abroad; it shouldn’t come out here.”

Americans are said to love whistleblowers (at least in films and on TV), many of whom have also been called leakers for telling what they know to reporters who when subpoenaed by prosecutors refuse to reveal their confidential sources. That’s conventional wisdom. Erin Brockovich and the cigarette company chemist in The Insider were depicted as good guys and gals, as was Ron Ridenhour, a Vietnam War helicopter door gunner who helped expose the murders of 300-500 Vietnamese peasants by U.S. troops at My Lai and was later honored. Daniel Ellsberg revealed a mountain of government lies during the Vietnam War, was threatened with prison, and remains a hero to anti–Vietnam War Americans. More recently, in Traitor: The Whistleblower and the “American Taliban” Jesselyn Radack related how she, a Justice Department lawyer and authority on legal ethics during the Bush administration, was harassed and fired for protesting what she claimed was official misconduct in the treatment of John Walker Lindh, the so-called American Taliban.

Now the Obama administration has decided to crack down. Some government employees have been charged with leaking national security secrets, thereby violating the Espionage Act, a controversial law enacted in 1917 to hunt down “spies.” More criminal cases have been brought by the Obama administration than by all other presidential administrations combined.

From the Alien and Sedition Acts of the late 18th century to the Age of McCarthyism, there has always been tension between freedom and security. 9/11 has led to more and more restraints, some necessary and some not. The second Bush administration, for example, limited the use of the writ of habeas corpus and relied on Guantanamo, torture, and placing prisoners in secret prisons in countries adept in torture. Yet nowadays, despite Obama’s “transparency” pledge, as many millions of documents, many just ordinary materials, are classified “top secret,” whistleblowers — their critics prefer to call them leakers — are accused of endangering national security, the “holy of holies.” The House of Representatives has just voted to authorize the attorney general to investigate “leaks of sensitive information” — most likely to The New York Times, The Washington Post, and Foreign Policy — about “sensitive information involving the military, intelligence, and operational capabilities of the U.S. and Israel.”

Thomas A. Drake, who worked at the National Security Agency, was indicted for telling a Baltimore Sun reporter about a government software program purchased from a private firm that he believed was too costly and less effective than the one it would replace. Because of the prosecutor’s refusal to allow certain secret material in court, the case collapsed and Drake was finally permitted to accept a plea bargain and received probation.

There are other pending cases. John Kiriakou, a former CIA official, is accused of naming a CIA employee for waterboarding a captured alleged al-Qaeda prisoner, and Jeffrey Sterling, another onetime CIA officer, has been charged under the Espionage Act with leaking information about Iran to New York Times reporter James Risen for his book State of War. In June 2011, Stephen J. Kim, a specialist in weaponry who worked for Lawrence Livermore National Laboratory and the Defense and State departments studying North Korea’s arms programs, was allegedly asked by a State Department officer to discuss North Korea with James Rosen of Fox News and the two spoke and exchanged e-mails. When Rosen reported news about the CIA and Pyongyang, Kim was indicted for leaking classified information and violating the Espionage Act. His trial will begin next fall. And Pfc. Bradley Manning is now being court-martialed for supposedly leaking secret files to WikiLeaks.

The growth of the national-security state will inevitably restrict some of our freedoms. Granted, it isn’t easy to prevent actual terrorism and at the same time preserve liberty. Granted, while we have far too many secrets, some must remain so, though relying on the Espionage Act is a ham-handed approach especially for an administration that once promised to act as an antidote to the Bush presidency. It’s an old and oft-quoted observation, but Benjamin Franklin’s warning about the dangers of sacrificing liberty for security bears keeping in mind.

Author: Murray Polner

Murray Polner has written for The New York Times, Washington Monthly, Commonweal, The Nation, The American Conservative, Columbia Journalism Review, Newsday, and other publications.