Obama used the Espionage Act to put a record number of reporters' sources in jail, and Trump could be even worse

This is Part III of a three-part series by Freedom of the Press Foundation on the Espionage Act of 1917 on its 100th anniversary. Part I can be read here and Part II can be read here.

“My background is in the Navy, and it is good to hang an admiral once in a while as an example to the others,” Dennis Blair told The New York Times in July 2013. “We were hoping to get somebody and make people realize that there are consequences to this and it needed to stop.”

Blair, who served as Director of National Intelligence for the Obama administration in 2009 and 2010, was defending the Obama administration’s strategy of aggressively prosecuting journalists’ sources under the Espionage Act of 1917.

For much of the law’s existence, while it was used perniciously against anti-war demonstrators, it was not applied to journalists or their sources. It was not until 1971 that a person was indicted under the Espionage Act for providing classified information to a journalist. Between 1917 and 2009, only one person was convicted under the Espionage Act for leaking to a news organization.

But the Obama administration was determined to change that. Under pressure from Congress and intelligence agencies, Attorney General Eric Holder directed the Department of Justice to aggressively prosecute government employees who discussed classified information with reporters. In 2012, after news organizations reported on U.S. drone strikes and attempts to disable Iranian nuclear reactors, Holder assigned two U.S. attorneys to track down the journalists’ sources.

President Barack Obama strongly supported Holder’s war against journalists’ sources, despite once promising to protect whistleblowers when in office and running for president on the national security scandals of the Bush administration — misdeeds that became public only because of leaks.

“Since I’ve been in office, my attitude has been zero tolerance for these kinds of leaks and speculation,” Obama said in June 2012. “Now we have mechanisms in place where, if we can root out folks who have leaked, they will suffer consequences. In some case, it’s criminal. These are criminal acts when they release information like this. And we will conduct thorough investigations, as we have in the past.”

Obama’s Justice Department succeeded in putting a number of people in jail for daring to help national security journalists report on classified government programs.

During the Obama administration, the Department of Justice brought charges under the Espionage Act against eight people accused of leaking to the media — Thomas Drake, Shamai Leibowitz, Stephen Kim, Chelsea Manning, Donald Sachtleben, Jeffrey Sterling, John Kiriakou and Edward Snowden.

Two other high ranking Obama officials, General David Petraeus and General James Cartwright, were also prosecuted as part of leak investigations. They both ultimately pled to lesser charges and were never indicted under the Espionage Act. Cartwright was also later pardoned. Including their cases, the total number of leak case prosecutions under the Obama administration was 10.

Thomas Drake was a senior NSA executive who started his job on September 11, 2001. In the post-terror attack climate, he had repeatedly complained — both internally at the agency and to Congress and the Department of Defense — about waste and lack of privacy protections at the spy agency. In 2005, he allegedly started talking to Siobhan Gorman, a reporter for the Baltimore Sun, and provided her with unclassified documents for a story detailing how the NSA wasted hundreds of millions of dollars on a spying program that infringed on Americans’ privacy.

The Department of Justice initially investigated him as a suspected source for the Times’s 2005 Pulitzer Prize-winning article on warrantless wiretapping; it did not find any evidence that he was, but it did discover his alleged communication with Gorman. A grand jury formally indicted Drake under the Espionage Act in 2010. Drake was never accused of providing classified information to anyone, since he only shared unclassified information with Gorman. Instead, he was accused of taking a few classified documents home.

As the case proceeded, the prosecution argued that it did not matter why Drake took the documents home or whether his actions actually harmed national security.

“The only intent required under the statute is that the defendant retained the documents willfully, i.e., in violation of a known legal duty. … whatever intent or belief that the defendant had for the potential use of those documents is irrelevant,” the prosecution wrote in a motion asking the court to prevent Drake from telling the jury that he was a whistleblower.

Drake tried to argue that he did know the documents were classified — one of the documents was actually stamped “UNCLASSIFIED” but the prosecution argued that Drake should known that it was supposed to be classified — and that they should not have been classified. But the prosecution argued that was all irrelevant under the Espionage Act.

Drake was essentially barred from making any public interest defense at his trial—a fate that has befell every source charged under the Espionage Act before or since.

But just before the case was set to go to trial in June 2011, the prosecution’s case fell apart. The New Yorker and “60 Minutes” highlighted the travesty of the case against Drake, and the subsequent public attention to the case led the Justice Department to drop all charges in exchange for Drake pleading guilty to a misdemeanor. But the case remained a template which the Justice Department would use against several other alleged sources.

Just a month after Drake was originally indicted, Shamai Leibowitz, a linguist working for the FBI, was accused of leaking information to blogger Richard Silverstein. He was charged under the Espionage Act, took a plea deal in December 2009 and was sentenced to 20 months in prison. Leibowitz said that he had provided Silverstein with evidence that the FBI “was committing illegal acts,” and Silverstein later told the Times that Leibowitz had given him transcripts of secretly wiretapped conversations at the Israeli embassy in Washington, D.C.

Then, Chelsea Manning, an Army intelligence analyst in Iraq, was accused of giving classified files to WikiLeaks in 2010 in one of the biggest and most cited leaks in US history. These included the infamous “Collateral Murder” video, which showed a U.S. Apache helicopter firing on Reuters journalists and civilians in Iraq, the Afghan War logs, the Iraq War logs, the State Department diplomatic cables and the Guantanamo Bay files.

Manning was arrested in Iraq and charged with a number of offenses, including violation of the Espionage Act and “aiding the enemy,” a military regulation that carried the death penalty.

In July 2013, a military judge acquitted Manning of the “aiding the enemy” charge but convicted her on a number of other charges, including multiple charges under the Espionage Act. She was sentenced in August 2013 to 35 years in prison — by far the longest sentence ever given to a whistleblower or leaker. Shortly before leaving office, President Obama commuted her sentence to seven years (including time served), and she was released from prison in May 2017.

The cases kept coming. Stephen Kim, a State Department contractor, was accused of leaking information about North Korea’s nuclear program to Fox News reporter James Rosen in 2009. After fighting the case for years, Kim took a plea deal in 2014 and was sentenced to 13 months in prison.

Jeffrey Sterling, a former CIA agent, was accused of leaking information about the CIA’s spectacularly botched attempts to disrupt Iran’s nuclear program to New York Times reporter James Risen in 2005. It was only in 2011, as the Obama administration ramped up its war on leakers, that Sterling was indicted under the Espionage Act. In 2015, Sterling was convicted of violating the Espionage Act and sentenced to three and a half years in prison.

John Kiriakou, a former CIA officer, was accused of giving a freelance reporter the name of an undercover CIA agent in 2009. Kiriakou, who had previously spoken out about the CIA’s torture of Guantanamo Bay detainees, said that he thought the agent had already retired and was no longer undercover. Even though the information was never published, Kiriakou was forced to take a plea deal. The Espionage Act charges were dropped, but he pled guilty to violating the 1982 Intelligence Identities Protection Act and was sentenced to 30 months in prison in January 2013.

Donald Sachtleben, a former FBI agent, was accused of confirming information about a foiled terrorist plot in Yemen to Associated Press reporters in 2012 after the Department of Justice secretly seized two months’ worth of AP reporters’ work phone, cell phone and home phone records. News outlets and journalism groups condemned this invasion of journalists’ privacy, and Attorney General Holder later agreed to adopt new internal Justice Department regulations limiting when the Department of Justice could seize reporters’ communications. Sachtleben pleaded guilty in 2013 to violating the Espionage Act.

Then, in a case that made international headlines, Edward Snowden, an NSA contractor, was accused in 2013 of providing journalists with electronic copies of tens of thousands of classified documents describing secret NSA programs, including programs that collected information about innocent Americans’ communications. The stories led to a significant court ruling that the NSA had engaged in illegal spying on Americans and several reforms in Congress, the executive branch, and at many of the world’s largest tech companies, yet the Department of Justice quickly charged him with violating the Espionage Act, charges which remain to this day. (Snowden is now the president of the Freedom of the Press Foundation, and Greenwald and Poitras are members of the organization’s board of directors.)

Snowden has said publicly that it would be impossible for him to receive a fair trial in the U.S. because he would not be able to mount a public interest defense. Snowden said that he wants to be able to argue to a jury that he leaked information to journalists because he believed that the American people should know that the NSA was secretly spying on them. If he returned to the U.S. to face trial, however, he would not be permitted to make such an argument.

The Espionage Act criminalizes the mere retention and communication of classified information, regardless of intent. The law, as currently interpreted, makes no distinction between a person who disclosed information to help foreign enemies undermine U.S. national security and a person who disclosed information to help the press expose illegal government programs. Snowden’s defense — that he leaked to inform the American people, not foreign enemies — would be considered irrelevant, which means that the prosecution would be able to exclude it from trial.

If it seems strange that the Espionage Act makes no distinction between working with foreign spies and working with journalists, that could be because the law was not originally intended to apply to the latter.

“Why would the Espionage Act have a public interest defense when it was not drafted in the first place to cover a situation like Snowden?” Jim Goodale, the former general counsel for The New York Times, said in an interview last week. “If it had been drafted in the first place to cover a situation like Snowden, it might have had all sorts of caveats with respect to the Snowden fact pattern.”

The Espionage Act prosecutions of journalists’ sources have continued under the administration of President Donald Trump and only look to get worse. Trump has, on an almost weekly basis, called for leak investigations into news reports about his administration and Attorney General Jeff Sessions has indicated that the Department of Justice wants to increase the prosecution of journalists’ sources.

“We are going to step up our efforts and already are stepping up our efforts on all leaks,” Sessions said in April 2017, adding that he wants to put “some people in jail” for disclosing classified information.

In June 2017 Reality Winner, an NSA contractor, became the first known government employee indicted for leaking to the media. The twenty-five year old was accused of sending a classified document about Russian attempts to hack employees of a voting machine company to the national security news site The Intercept. Hours after The Intercept published a story based on the document, the Department of Justice announced that Winner had been arrested and indicted under the Espionage Act.

In addition to charging journalists’ sources under the Espionage Act, both the Obama administration and the Trump administration have explored the possibility of using the law directly against journalists.

In 2010, as part of its investigation into Stephen Kim in 2010, Obama’s Department of Justice obtained a search warrant for Fox News reporter James Rosen’s private emails. In an affidavit supporting the search warrant, an FBI agent accused Fox News reporter James Rosen of conspiring to violate the Espionage Act.

“There is probable cause to believe that the Reporter has committed a violation of 18 U.S.C. § 793 (Unauthorized Disclosure of National Defense Information), at the very least, either as an aider, abettor and/or co-conspirator of Mr. Kim,” FBI special agent Reginald Reyes wrote in an affidavit that shocked press freedom groups at the time.

Rosen was never charged under the Espionage Act, and Attorney General Eric Holder later said that he regretted naming Rosen as a “co-conspirator,” but it laid bare the danger that reporters continue to face to this day with the Espionage Act still on the books.

“I think about the subpoena to the Fox reporter, Rosen,” Holder said in 2014. “I think that I could have been a little more careful looking at the language that was contained in the filing that we made with the court — that he was labeled as a co-conspirator."

This wasn’t the only dangerous move Obama’s Justice Department made that could directly affect journalists, however. They also opened a grand jury to investigate considered charging Julian Assange, the founder of WikiLeaks — the recipient and publisher of the classified documents leaked by Manning — with violating the Espionage Act.

A successful prosecution of WikiLeaks and its founder Julian Assange under the Espionage Act would have set a dangerous precedent, paving the way for the government to use the Espionage Act against news organizations that published leaked information. While the grand jury itself was a disturbing escalation, the Justice Department reportedly realized the precedent it would set and declined to publicly issue charges against WikiLeaks.

But with the case still technically open, the Trump administration has said that it is willing to go even further than the Obama administration did in criminalizing journalism. The Justice Department under Jeff Sessions has indicated it intends to seek Assange’s arrest, and when asked about the potential for the Trump administration to use any WikiLeaks precedent against other news organizations, Sessions refused to rule it out.

This, coupled with the report that President Trump allegedly told FBI director James Comey in a private meeting that he wanted the FBI to “jail journalists” who reported on leaked information has worried many in the press freedom world that Trump may finally go where others have been unwilling or unable to: an actual prosecution of a journalist under the Espionage Act.

In the meantime, the government will continue to use the Espionage Act against government employees, treating it as a broad anti-disclosure law. Though this was not the original intent of the law when it was enacted in 1917, the Espionage Act has effectively become an American version of the U.K.’s “Official Secrets Act” — a law that outlaws public knowledge and discussion of any information that the government deems secret.

Given how vague the Espionage Act is and how broadly it’s been interpreted over the years, virtually all national security journalism could be held to violate it. But the government cannot enforce it to that extent. So instead, the Department of Justice finds scapegoats, such as Reality Winner, and then prosecutes them as though their disclosures of classified information to journalists were singularly dangerous to national security.

These aggressive Espionage Act prosecutions will have a chilling effect on national security reporting, just as the government intends. While national security journalists will continue to do their jobs — carefully working their sources in the government to learn information about classified and unclassified government programs — some of their sources will understandably be reluctant to talk to them, for fear of being investigated and prosecuted under the Espionage Act.

But other government sources will continue providing classified information with reporters, bravely risking their careers and their freedom in order to help inform the American people about what their government is doing. A few of those brave sources will end up in jail, convicted of violating the Espionage Act of 1917, for daring to discuss the government’s official secrets.

This is the third and final part of a three-part series on the history of the Espionage Act. If you missed the first two parts, read up on the early history of the Espionage Act and how the law became a tool used against the press.

This post has been updated to clarify there were two additional leak prosecutions during the Obama administration that did not include Espionage Act charges.