Josh Gerstein examines the Obama administration as they attempt to defeat information leakers:
The Obama administration, which famously pledged to be the most transparent in American history, is pursuing an unexpectedly aggressive legal offensive against federal workers who leak secret information to expose wrongdoing, highlight national security threats or pursue a personal agenda.
In just over two years since President Barack Obama took office, prosecutors have filed criminal charges in five separate cases involving unauthorized distribution of classified national security information to the media. And the government is now mulling what would be the most high-profile case of them all – prosecuting WikiLeaks founder Julian Assange.
That’s a sharp break from recent history, when the U.S. government brought such cases on three occasions in roughly 40 years.
The government insists it’s only pursuing individuals who act with reckless disregard for national security, and that it has an obligation to protect the nation’s most sensitive secrets from being revealed. Anyone seeking to expose malfeasance has ample opportunity to do so through proper channels, government lawyers say.
But legal experts and good-government advocates say the hard-line approach to leaks has a chilling effect on whistleblowers, who fear harsh legal reprisals if they dare to speak up.
Not only that, these advocates say, it runs counter to Obama’s pledges of openness by making it a crime to shine a light on the inner workings of government – especially when there are measures that could protect the nation’s interests without hauling journalists into court and government officials off to jail.
“It is not to me a good sign when government chooses to go after leakers using the full force of criminal law when there are other ways to handle these situations,” said Jane Kirtley, a University of Minnesota law professor and former executive director of the Reporters Committee for Freedom of the Press. “Of course, the government has to have some kind of remedy, [but] I’d certainly hope they’re being very selective about these prosecutions.”
Jesselyn Radack, a former Justice Department attorney now with the Government Accountability Project, said it’s “very destructive and damaging to be going after people for leaks that embarrass the government.” The policy, she said, is “a disturbing one particularly from a president who got elected pledging openness and transparency — and someone who also got elected thanks to a lot of [Bush-era] scandals that were revealed by whistleblowers.”
But Jack Goldsmith, a senior Justice Department official under President George W. Bush, said the U.S. intelligence apparatus — which is perhaps most at risk from leaks of classified information — has pressured Obama’s Justice Department to get tough.
“Leaking has gotten a lot worse over the last decade,” said Goldsmith, now a law professor at Harvard . “It’s viewed as sort of crisis in the intelligence community in the sense that there is a strong perceived need to do something about it.”
Yet Goldsmith notes an apparent double standard: top White House and administration officials give unauthorized information to Washington reporters almost daily, but authorities will come down hard if rank-and-file employees get caught doing the same thing. “Top officials frequently leak classified information and nothing happens to them,” he said.
Still, leak prosecutions brought under Obama amount to “almost twice as many as all previous presidents put together,” noted Daniel Ellsberg, who changed history and helped set a legal precedent when he handed the Pentagon’s top-secret assessment of the Vietnam War to New York Times reporters four decades ago. “The campaign here against whistleblowers is actually unprecedented in legal terms.”
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