David Carr
Last
Wednesday in the White House briefing room, the administration’s press
secretary, Jay Carney, opened on a somber note, citing the deaths of
Marie Colvin and Anthony Shadid, two reporters who had died “in order to
bring truth” while reporting in Syria.
Jake
Tapper, the White House correspondent for ABC News, pointed out that
the administration had lauded brave reporting in distant lands more than
once and then asked, “How does that square with the fact that this
administration has been so aggressively trying to stop aggressive
journalism in the United States by using the Espionage Act to take
whistle-blowers to court?”
He then suggested that the administration seemed to believe that “the truth should come out abroad; it shouldn’t come out here.”
Fair
point. 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.
The
Espionage Act, enacted back in 1917 to punish those who gave aid to our
enemies, was used three times in all the prior administrations to bring
cases against government officials accused of providing classified
information to the media. It has been used six times since the current
president took office.
Setting aside the case of Pfc. Bradley Manning, an Army intelligence analyst who is
accused of stealing thousands of secret documents,
the majority of the recent prosecutions seem to have everything to do
with administrative secrecy and very little to do with national
security.
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.
Mr.
Tapper said that he had not planned on raising the issue, but hearing
Mr. Carney echo the praise for reporters who dug deep to bring out the
truth elsewhere got his attention.
“I
have been following all of these case, and it’s not like they are
instances of government employees leaking the location of secret nuclear
sites,” Mr. Tapper said. “These are classic whistle-blower cases that
dealt with questionable behavior by government officials or its agents
acting in the name of protecting America.”
Mr.
Carney said in the briefing that he felt it was appropriate “to honor
and praise the bravery” of Ms. Colvin and Mr. Shadid, but he did not
really engage Mr. Tapper’s broader question, saying he could not go into
information about specific cases. He did not respond to an e-mail
message seeking comment.
In
one of the more remarkable examples of the administration’s aggressive
approach, Thomas A. Drake, a former employee of the National Security
Agency, was prosecuted under the Espionage Act last year and faced a
possible 35 years in prison
Thomas Drake
His
crime? When his agency was about to spend hundreds of millions of
dollars on a software program bought from the private sector intended to
monitor digital data, he spoke with a reporter at The Baltimore Sun. He
suggested an internally developed program that cost significantly less
would be more effective and not violate privacy in the way the product
from the vendor would. (He turned out to be right, by the way.)
He was charged with 10 felony counts that accused him of lying to investigators and obstructing justice. Last summer, the
case against him collapsed, and he
pleaded guilty to a single misdemeanor, of misuse of a government computer.
Jesselyn
Radack, the director for national security and human rights at the
Government Accountability Project, was one of the lawyers who
represented him.
“The
Obama administration has been quite hypocritical about its promises of
openness, transparency and accountability,” she said. “All presidents
hate leaks, but pursuing whistle-blowers as spies is heavy-handed and
beyond the scope of the law.”
Mark
Corallo, who served under Attorney General John D. Ashcroft during the
Bush administration, told Adam Liptak of The New York Times this month
that he was “sort of shocked” by the number of leak prosecutions under
President Obama. “We would have gotten hammered for it,” he said.
As
Mr. Liptak pointed out, it has become easier to ferret out leakers in a
digital age, but just because it can be done doesn’t mean it should be.
These
kinds of prosecutions can have ripples well beyond the immediate
proceedings. Two reporters in Washington who work on national security
issues said that the rulings had created a chilly environment between
journalists and people who work at the various government agencies.
During
a point in history when our government has been accused of sending
prisoners to secret locations where they were said to have been tortured
and the C.I.A. is conducting remote-controlled wars in far-flung
places, it’s not a good time to treat the people who aid in the
publication of critical information as spies.
And
it’s worth pointing out that the administration’s emphasis on secrecy
comes and goes depending on the news. Reporters were immediately and
endlessly briefed on the “secret” operation that successfully found and
killed Osama bin Laden. And the drone program in Pakistan and
Afghanistan comes to light in a very organized and systematic way every
time there is a successful mission.
There
is plenty of authorized leaking going on, but this particular boat
leaks from the top. Leaks from the decks below, especially ones that
might embarrass the administration, have been dealt with very
differently.
E-mail: carr@nytimes.com;
Twitter.com/carr2n
A version of this article appears in print on February 27, 2012, on page B1 of the
New York edition with the headline: Blurred Line Between Espionage And Truth.
