Is the Obama administration abusing the Espionage Act?

Prosecutors may still attempt to indict WikiLeaks founder Julian Assange under the 1917 Espionage Act, though their case will likely depend on exactly how he received his information. But, WikiLeaks aside, the Obama administration has made increasing use of the act to clamp down on whistleblowers.

Prompted by a question at a White House press briefing last week by ABC’s Jake Tapper, David Carr explores the issue in his New York Times column: 

The Obama administration, which promised during its transition to power that it would enhance “whistle-blower laws to protect federal workers,” has been more prone than any administration in history in trying to silence and prosecute federal workers. […]

In case after case, the Espionage Act has been deployed as a kind of ad hoc Official Secrets Act, which is not a law that has ever found traction in America, a place where the people’s right to know is viewed as superseding the government’s right to hide its business.

In the most recent case, John Kiriakou, a former C.I.A. officer who became a Democratic staff member on the Senate Foreign Relations Committee, was charged under the Espionage Act with leaking information to journalists about other C.I.A. officers, some of whom were involved in the agency’s interrogation program, which included waterboarding.

For those of you keeping score, none of the individuals who engaged in or authorized the waterboarding of terror suspects have been prosecuted, but Mr. Kiriakou is in federal cross hairs, accused of talking to journalists and news organizations, including The New York Times.

Another example was Thomas Drake, a former NSA employee who was prosecuted under the espionage act and faced a possible 35 years in prison for talking to reporters about a deal to buy digital data monitoring software uneccesarily violate privacy. The case against him eventually collapsed and he pleaded guilty to a minor misdemeanor charge. Some more examples here.

I’m no attorney, but these prosecutions do seem to have diverged pretty far from the original scope of the Act, which refers to people who transmit information to a foreign government or entity “with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation.” It seems pretty clear that neither Drake nor Kiriakou were acting with intent to harm the United States. And they were communicating with well-established U.S. media organizations, not foreign government or militaries. 

U.S. courts have left the door open to espionage prosecutions of this kind, however. The best known case on this issue is the 1971 Pentagon Papers case, which is best remembered for the Supreme Court’s decision that the Government could not prevent the publication of Vietnam war documents leaked by analyst Daniel Ellsberg to the New York Times. 

However, the court actually ruled only that the Nixon administration had failed to demonstrate a compelling national security threat that warranted the prior prevention of publication. They left open the possibility that if a more compelling threat could be demonstration, such an injunction could be warranted. Moreover, it was suggested that the standard for a espionage prosecution after publication might not be as high as with prior restraint.

So, the law’s not quite settled on how much of a threat to national security a media leak needs to be before it’s considered espionage. But at the rate the Obama adminsitration is going — it has already prosecuted more government officials for providing classified information to the media than every previous administration combined — the Supreme Court may soon get the chance to provide some clarity on the matter.