David E. Sanger has the kind of establishment journalism credentials that exude authority. In a three-decade-long career at the New York Times, he’s reported from New York, Tokyo and Washington, and he’s now the paper’s chief Washington correspondent. He’s been a member of reporting teams that have won two Pulitzer Prizes. He’s written two well-received books, and he’s a member of the Council on Foreign Relations and the Aspen Strategy Group. He has taught at Harvard Kennedy School of Government and is a regular, reasonable, bespectacled, and somewhat avuncular presence on the Sunday morning network television news and interview shows.
In June 2012, the New York Times published a Sanger story revealing that President Obama had ordered accelerated attacks on Iran’s nuclear enrichment facilities via a cyberweapon with the futuristic name Stuxnet. This act of journalism put Sanger’s sources in the crosshairs of the Obama administration’s Justice Department.
In a recent opinion piece in the Washington Post, former Post executive editor Leonard Downie, Jr. described the outsized governmental response to Sanger’s story. Federal investigators, Downie cites Sanger as saying, questioned scores of government officials who were identified, through phone, text, and email records, as having had contact with Sanger. Sanger also told Downie that the White House chief of staff sent out a memo instructing executive branch employees to retain email from the respected Times scribe. Longtime sources quickly went silent.
“They tell me: ‘David, I love you, but don’t e-mail me,” Downie quoted Sanger as saying. “Let’s don’t chat until this blows over.’ ”
Sanger told Downie something else, too: “This is most closed, control-freak administration I’ve ever covered.”
As US news media and transparency nonprofits tell the tale, the Obama administration has waged an unprecedented legal war against national security whistleblowers and the reporters they spill their secrets to. Even beyond the highly publicized Bradley/Chelsea Manning and Edward Snowden cases, media advocates note, the Obama administration has pursued a record number of criminal prosecutions against alleged leakers of classified material. In doing so, they say, the federal government has repeatedly overreached in dealing with reporters, and not just Sanger: It secretly seized months of phone records associated with Associated Press bureaus and journalists; it obtained emails of Fox News chief Washington correspondent James Rosen via a search warrant based on claims he was a co-conspirator, rather than a reporter doing his job; and it attempted to force star New York Times national security reporter James Risen to testify about his sources in a leak case. Echoing Sanger, media advocates complain that the Obama administration has frightened sources inside the federal government so badly that they won’t engage in even routine electronic contact with reporters. There can be a plaintive tone to these criticisms, which often point out that Obama has overseen more leak prosecutions than George W. Bush, the supposed epitome of executive secrecy and national security overreach (and the first president to deal with leaks in the new technological era).
The Obama administration, in its defense, insists that it has taken a reasoned course in responding to leaks that have done real, serious harm to the country’s counterterrorism and intelligence-gathering efforts. The Justice Department says it does not go after whistleblowers within the government who proceed through proper channels—such as a complaint to an Inspector General, an official with wide latitude to police behavior within an executive agency—but it does vigorously prosecute federal employees who illegally take it upon themselves to publicize classified information. (Which would describe Daniel Ellsberg’s release of the Pentagon Papers, even though it likely hastened American withdrawal from Vietnam.) And, the department says, it balances First Amendment concerns with national security and law enforcement interests whenever it considers investigating leaks. These rejoinders also seem to contain wounded undertones, a kind of exasperation that anyone would think an administration headed by a former professor of constitutional law who’s committed to transparency might blithely trample on press freedom.
If the debate over leaking and its prosecution has been fiercely argued, the argument has also included elements of political theater. The realities of national-security leaking are more nuanced and ambiguous than the black-and-white, press-freedom-versus-national-security drama presented by both sides.
For all the claims that the Obama administration is on a leak prosecution crusade, the uptick in leak cases during the Obama administration is relatively small in absolute terms, and it has occurred within a larger context. In this administration, as in previous presidencies, government officials who leak classified information are very rarely prosecuted, and journalists who receive the leaks have a remarkable degree of insulation from legal consequences, due at least in part to one underlying reality: Leaking is extraordinarily useful to the president and his staff.
David Pozen, a Columbia Law School associate professor who has studied what he calls the “intricate ecosystem” of leaking, describes the situation this way in a forthcoming Harvard Law Review article: “The great secret about the laws against leaking is that they have never been used in a manner designed to stop leaking — and that their implementation threatens not just gauzy democratic ideals but practical bureaucratic imperatives, not just individual whistleblowers but the institution of the presidency.”
Government officials leak constantly, on authorized, semi-authorized, and unauthorized bases. They leak to affect policy, to test public reaction to policy changes under consideration, to communicate among executive agencies and with foreign governments, to settle grudges, to bolster their egos, to inform reporters and to butter them up, and, occasionally, to actually blow the whistle on governmental abuses. The programmatic prosecution of leakers would, Pozen says, restrict all of those activities and more, and make governing immeasurably more difficult for any president.
So the relevant question may not be whether the Obama administration is frenetically focused on waging legal war against leaks. It may be more important to ask whether the climate of the ecosystem that has long protected leakers and national security reporters is changing, whether the Obama anti-leaking crusade is a temporary aberration that will soon fade—or the first dangerous step in a progression of ever-more-rigorous crackdowns to come.
The routine use of email, text and instant-messaging services, and cell phones, along with the proliferation of surveillance cameras and turnstiles that track people in federal buildings, has made it far easier than in decades past for investigators to gather electronic communication records and other evidence that can be used to build criminal cases against leakers, observers of the Obama leak uproar have noted. Meanwhile, a new breed of low-level, large-scale digital leaker – Manning, for example, who leaked hundreds of thousands of classified documents through Wikileaks in 2010 – has raised the possibility of leaks that are enormously threatening to national security and, ergo, enormously concerning to a commander-in-chief.
Despite these changes in the classified information environment, Pozen told TakePart that he believes the self-regulating features of the leak ecosystem will continue to work as they have for decades, greatly limiting legal action against government officials who reveal classified information. “But,” he admits, “I can’t rule out that we may really be heading into a new order.”
The Espionage Act of 1917 was passed shortly after the United States entered World War I, forbidding Americans from engaging in activities that might support enemy military operations. Amended several times since, it has been used to prosecute everyone from Socialist Party presidential candidate Eugene V. Debs, convicted and imprisoned for making a pro-Socialist, anti-war speech, to Julius and Ethel Rosenberg, who were found guilty and sentenced to death in 1951 for selling atomic secrets to the Soviet Union.
Through American history, presidents and other national security leaders have railed about leaks of classified information to the press, but only on rare occasions – the publication of the Pentagon Papers in 1971 being one – has the government tried to use the Espionage Act to target the media directly over such leaks. And no journalist has been charged under it. More recently, the government has used the act (often these two sections) to prosecute public employees who leak classified information to the media.
The Obama administration’s eight leak prosecutions of government officials under the Espionage Act represent an increase over historical levels. In all preceding administrations, it's been widely reported, the Espionage Act was used to bring just three cases against public officials for providing classified information to the media. But of the eight Obama-era cases, two originated during the Bush administration, and two – against Manning and Snowden – seem, for strategic reasons alone, all but unavoidable, given the scale and importance of the secrets revealed. Thomas Patterson, the Bradlee Professor of Government and the Press at Harvard’s Kennedy School of Government, says that given the pro-transparency pronouncements Obama made before and since he took office, it seems likely that leak prosecutions were pursued on a case-by-case basis, rather than as part of an overarching plan. “I don’t think he necessarily wants to be out on this limb,” Patterson says.
“So it’s kind of hard to imagine, if he’s doing it,” Patterson adds, “who might not be in the future.”
In August, a military judge sentenced Manning to 35 years in prison for leaking more than 700,000 government documents to Wikileaks. Snowden has taken asylum in Russia after leaking documents that detail massive National Security Agency electronic surveillance operations around the world; he’s been charged with three felonies. (The investigative site ProPublica has compiled information on Obama administration leak prosecutions here.)
And the eight prosecutions pursued during the Obama administration are a truly tiny total when compared to the vast amount of government leaking that takes place. Although definitive data are not available, officials have said that the Justice Department received about 50 criminal leak referrals a year in the late 1990s, and an average of 37 annually from 2005 to 2009, Pozen writes in his heavily footnoted paper. The referrals hardly tell the whole tale, he notes: “Looking at classified information disclosures specifically, a study by the Senate Select Committee on Intelligence counted 147 separate instances in the nation’s eight leading newspapers in the first six months of 1986. The Weapons of Mass Destruction (WMD) Commission claimed in its 2005 public report to have identified ‘hundreds of serious press leaks’ of classified information over the past decade.” In his paper, Pozen cites estimates of the indictment rate for leak-law violations at less than 0.3 percent over a roughly 30-year period ending in 2011. The rate during the Obama administration is difficult to state precisely, because data is not available for the entire Obama era. But extrapolating from previous statistics, the percentage of referrals that led to indictments in the Obama years is likely in the low single-digits; this would be higher than the historic rate, though still very low.
“For a crime that Presidents describe as a major threat to national security and good government,” Pozen writes, “the degree of ‘underenforcement’ is stunning.”
The leak cases prosecuted by the Obama administration are a varied lot, ranging from the very-hard-to-justify to the essentially-impossible-to-question. On the paper-thin end, Thomas Drake, a former National Security Agency official, probably most closely matches the notion of the public-interest whistleblower that inhabits the public imagination. He was charged with 10 felony counts of violating the Espionage Act for speaking to a Baltimore Sun reporter about an NSA technology program that went vastly over budget and has since been cancelled as a boondoggle. But those charges were dropped just before trial in July 2011, when Drake was allowed to plead guilty to a single misdemeanor for which he received a sentence of a year’s probation, plus community service. The judge in the case said [pdf] the Justice Department’s dragging-out of the four-year-long investigation “doesn’t pass the smell test.”
The Obama-era leaker at the other end of the sympathy scale would seem to be former FBI agent Donald Sachtleben, who agreed late in September to plead guilty to leaking information to the Associated Press that led to the unmasking of an undercover agent working for the United States inside al Qaeda. In a separate case, Sachtleben also pleaded guilty to possessing and distributing child pornography. His total sentence, if a judge accepts the plea agreement, would be nearly 12 years in prison.
As unsympathetic as Sachtleben may be, his prosecution has created a flash point for the public relations inferno that now surrounds the Obama administration’s anti-leaking efforts. To acquire evidence against Sachtleben, federal investigators secretly seized two months’ worth of records relating to more than 20 telephone lines used by AP journalists. The phone records — obtained by a subpoena served without first notifying the wire service, as is customary — sparked an uproar in Congress and among media organizations and free press advocacy groups. The volume on that uproar was turned up not long afterward when the Washington Post revealed that during their investigation of apparent leaks of classified information about North Korea in 2009, federal investigators obtained phone and email records of Fox News chief Washington correspondent James Rosen. Some of those records were obtained by a search warrant that alleged there was probable cause to believe that a “national news reporter” (identified in news reports as Rosen) had violated a section of the Espionage Act relating to unauthorized disclosure of national defense information as an “aider and abettor and/or co-conspirator.”
The administration has since seemed to back away from its more aggressive stance on accessing records of journalists’ communications, with the Justice Department reviewing and revising its media policies. The new policies expand the department’s longstanding practice of not prosecuting journalists for newsgathering activity and of using subpoenas, court orders, and search warrants to obtain media records only as “an extraordinary measure.” Under the new policy, the government would access media communications records only after review by a newly created News Media Review Committee and only after authorization by the attorney general. The administration has also thrown its support behind a shield law that aims to provide reporters with protection against having to reveal sources in court. Nevertheless, some media advocates feel the law would do little to protect national security reporters.
Notwithstanding evidence of administration backtracking and the relatively small number of prosecutions, many journalists and media advocates remain deeply wary of the administration’s approach to leak investigations. Lucy Dalglish, dean of the Philip Merrill College of Journalism at the University of Maryland and a former executive director of the Reporters Committee for Freedom of the Press, believes that the Obama administration is “incredibly disciplined” in terms of the information it provides the press, on- and off-record, and, at the same time, more dismissive of journalists than it should be.
Widespread email and cell phone use have made it relatively easy for the government to amass information on the electronic communications of government officials and, when it chooses, journalists, and the administration’s policy toward leaks and leakers is, she feels, “evolving into dangerous territory.” She acknowledges that the specter of leaks of large volumes of secrets from low- and mid-level sources, à la Manning and Snowden, puts the administration in a difficult position — one in which the White House could well be pining for the “quaint” days when national security leaks went to established media outlets that would listen to administration requests for restraint. Still, Dalglish says, through its leak investigations the administration is trying to frighten mid-level leakers, and that tack is making federal employees of all sorts reluctant to talk to the media. “They’ve even scared people in the National Park Service,” Dalglish said.
Downie, the former Washington Post executive editor, is now a professor at the Walter Cronkite School of Journalism at Arizona State University, and he has an even more dire view. “With the passage of the Patriot Act after the Sept. 11, 2001, terrorist attacks, a vast expansion of intelligence agencies and their powers, the aggressive exploitation of intrusive digital surveillance capabilities, the excessive classification of public documents and officials’ sophisticated control of the news media’s access to the workings of government, journalists who cover national security are facing vast and unprecedented challenges in their efforts to hold the government accountable to its citizens,” Downie wrote in his Post opinion piece, which was based on a report he wrote for the Committee to Protect Journalists. “They find that government officials are increasingly fearful of talking to them, and they worry that their communications with sources can be monitored at any time.”
In response, Downie wrote, journalists are avoiding telephone conversations and email exchanges to protect government sources, and “a few” news organizations are using separate computer networks and other methods of evading government snooping, including encryption of electronic communications — perhaps foreshadowing a sort of digital communications arms race between the leak police and the press. For example, the Freedom of the Press Foundation has begun distributing open source software called SecureDrop that media organizations can use to provide security to sources who want submit digital documents that the government can’t intercept and decipher. The New Yorker is already using a version of the software for its Strongbox file submission site. At the very least, Beltway-area park benches and barstools are likely to get a workout under this new regime.
Steven Aftergood, director of the project on Government Secrecy at the Federation of American Scientists, provides a more modulated view. Although the moves are often overlooked, the Obama administration decided against pursuing two significant leak cases left over from the Bush administration, Aftergood notes. And the new Justice Department media policy does suggest some rethinking of the administration’s anti-leaking strategy, Aftergood says, particularly in a section that suggests intelligence agencies might address leaks through administrative sanctions – the withdrawal of security clearances from alleged leakers, for example – rather than relying on criminal prosecution. (Though Aftergood says it remains to be seen whether such rethinking will be applied.)
Even so, Aftergood expects the Obama administration to continue its vigorous legal pursuit of leakers: “I think there is a lot of momentum behind the current aggressive stance.”
Mark Zaid is a Washington, DC lawyer who worked with two government officials the Obama administration has prosecuted for alleged classified leaks: former CIA officer Jeffrey Sterling, charged with leaking information about CIA activity related to Iran’s nuclear program, and John Kiriakou, a former CIA counterterrorism operative who pleaded guilty last October to leaking the identity of a former colleague to a reporter at ABC News. (A similar act by Bush administration officials resulted in widespread condemnation and the conviction of Vice President Dick Cheney’s chief of staff.) Zaid says he has been involved in defending alleged leakers since the mid-1990s; his view of the Obama administration leak policies is markedly different than the view some journalists and press advocates have taken.
“I really don’t see this administration as more aggressive than others,” he said. The difference in numbers of prosecutions relates mostly to availability of evidence, he says; technological advances available to federal investigators have provided a wealth of information about leakers that was not possible to accrue in the past, helping them build strong, if circumstantial, cases against leakers.
Also, Zaid said, Justice Department lawyers push the legal envelope in regard to leaks and espionage prosecutions. In the Sterling case, for example, prosecutors have pursued a remarkably aggressive course against Times national security reporter James Risen, subpoenaing him to testify in the former CIA agent’s trial. A federal appellate court has ruled that Risen must indeed testify, a decision that, if it stands, could send him to jail for refusing to reveal his sources, potentially with ripple effects on a range of national security reporting.
But Zaid does not see this prosecutorial zeal as emanating from the Obama administration, and he considers the Obama administration’s pursuit of leakers as more an evolutionary than an extraordinary change, an extension of Bush administration policies, just as many Bush policies were extensions of Clinton-era practices. While he does not necessarily approve of the evolving increase in aggression with which leak cases are pursued, Zaid says, “I’m not surprised at anything they’re doing.” It’s a natural outgrowth of technology, circumstance, and the continuity of prosecutorial practice from administration to administration.
At the end of a lengthy interview, Zaid made an interesting, overarching point: There is a very small community of people who deal directly with classified leak cases, and none of the people in it is completely disinterested. Representatives of nonprofits that deal with First Amendment and free press issues can be “passionate to a fault,” he said, defending whistleblowers and their media partners wholesale, even if some of their behavior is not defensible. Whistleblowers can themselves “end up having blinders on,” making them unable to see the difference between the broader public interest and their own dedication to a cause or love of the limelight. That lawyers – in and out of the government — are vigorous advocates for their clients is, of course, a given.
So, when assessing the state of leak prosecution in the Obama era, Zaid suggested, one should remember a simple reality: “There’s a lot of agendas in this field.”
David Pozen spent months examining the complex world of national security leaking in Washington. The Columbia law professor interviewed a range of national security journalists and roughly two dozen current and former executive branch officials who have worked on top secret issues, and he analyzed a variety of documents obtained under the Freedom of Information Act, all with the aim of understanding why it is that high federal officials so loudly decry the leaking of classified information, while being permissive about it.
Pozen’s description of the “intricate ecosystem” of leaking is layered, detailed, and difficult to summarize in a way that does justice to its depth. In essence, he contends that the executive branch has never seriously attempted to enforce leak laws because, among other reasons, leaking works enormously in favor of the president. The president's men (and women) use authorized leaks – what Pozen calls plants – in many ways that enhance their power. Unauthorized leaks tend to be tolerated because they show that not all reporting based on secret information is a government “plant” that the public can dismiss as official propaganda. If the government’s own leaking is to be viewed as legitimate, some seemingly unauthorized leaks must appear in the media.
Or, in Pozen’s construction, “Plants need to be watered with leaks.”
Meanwhile, he says, a host of government officials communicate with reporters on a semi-authorized middle ground. That is, superiors know that these officials are speaking with the media, but often do not know the precise substance of what is being conveyed. Pozen calls the classified leaks that happen in this intermediate realm “pleaks,” meaning they lie somewhere between leaks and plants. Any serious, programmatic attempt to enforce leaking laws would, first, tend to eliminate the leaks that are necessary to legitimize the government’s plants in the press. It could also wind up targeting pleaks and, inevitably, place executive branch officials who engaged in or allowed them at risk of prosecution.
Lest this talk of leaks, pleaks, and plants confuse rather than explain, here is Pozen’s own one-sentence summary of why leaking is so seldom punished: “Even though particular leaks may cause real damage, an accommodating approach to enforcement has…supported, rather than subverted, the government.”
Pozen is the first to acknowledge that he has not devised a unified field theory of the workings of the leak ecosystem. His analysis has, however, gained both public notice and appreciation inside the community that deals closely with leaking. It’s an analysis that acknowledges the rise of new factors that could push the Obama administration and future presidencies to intensify the legal pursuit of leakers – including a perception that the government is vulnerable to an increased number of threatening disclosures of classified data by lower-level employees with access to nonestablishment media outlets like Wikileaks. The Snowden affair, Pozen notes, has dramatically changed the secrecy debate within a matter of months.
After all, tens of thousands of lower-level federal employees have access to classified data of one sort or another, and technology enables their leaks. Daniel Ellsberg had to spend hours secretly photocopying the Pentagon Papers late at night; Snowden simply made digital copies of some of the NSA’s most intimate secrets from a file-sharing location on the agency’s internal computer network, to which he had access as an NSA contractor.
At base, Pozen’s assessment of the future of leak pursuit suggests that it will continue to be one of permissiveness and few prosecutions, because the leak ecosystem is resilient, and leaking is of enormous benefit to the president. “There is a strong basis for predicting that the current ‘leak panic’ will fade,” Pozen writes, “and that prosecutorial excess in this area ought to be self-correcting … History as well as theory is on the side of the leaker. Permissive neglect [toward leakers] has proven a remarkably resilient model over many decades in the face of great social, technological, journalistic, and bureaucratic change.”
Pozen acknowledges, however, that he cannot be sure the Obama anti-leaking crusade is a temporary aberration rather than a harbinger of increasingly harsh executive branch efforts to control classified information and frighten leakers. As he’s prepared his paper for publication, Pozen says, he’s described his views on leak prosecution to several national security reporters. And their response?
“They say,” he allows with a light chuckle, “‘I hope you’re right.’”
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