President Barack Obama meets with his national security team in the Situation Room

President Barack Obama’s administration has developed a reputation for aggressively prosecuting whistleblowers or individuals responsible for national security leaks. The policy adopted by the administration was influenced by former director of national intelligence, Dennis Blair, who requested a “tally of the number of government officials or employees who had been prosecuted for leaking national security secrets,” according to the New York Times.

Sharon LaFraniere of the Times reports:

In the previous four years, the record showed, 153 cases had been referred to the Justice Department. Not one had led to an indictment.

That scorecard “was pretty shocking to all of us,” Mr. Blair said. So in a series of phone calls and meetings, he and Attorney General Eric H. Holder Jr. fashioned a more aggressive strategy to punish anyone who leaked national security information that endangered intelligence-gathering methods and sources.

“My background is in the Navy, and it is good to hang an admiral once in a while as an example to the others,” said Mr. Blair, who left the administration in 2010. “We were hoping to get somebody and make people realize that there are consequences to this and it needed to stop.” [emphasis added]

Such a comment from Blair is significant because critics of Obama’s policy on leaks (including this writer) have suggested the policy on leaks was about making an example out of someone in order to send a message to others in government not to leak or think about blowing the whistle on national security policies or programs. This comment would seem to validate that suggestion.

Furthermore, one notices that the “aggressive strategy to punish anyone who leaked national security information” does not seem to have been put together with any interest in whether it was the intent of individuals to “endanger intelligence-gathering methods and sources.” The unauthorized disclosures themselves would be enough to prove that an act had taken place that needed to be punished to the greatest extent possible and create a climate similar to what might result if the nation actually had an Official Secrets Act that purely criminalized unauthorized disclosures by security or intelligence employees regardless of intent.

It was found that 153 leak cases had been referred to the Justice Department. Fourteen suspects had been identified, as of 2009. Zero of those had been prosecuted.

Would it be possible to have 14 suspects and decide none of them needed to be prosecuted? The decision to become much more aggressive on leaks than the previous administration of President George W. Bush was a result of high-ranking officials in the Obama administration and pressure from Congress. The answer would, therefore, appear to be “no.”

According to the story:

The Justice Department imposed a tight deadline to decide whether to open criminal inquiries into leaks, shortening to just three weeks a review process that had often dragged on for months. Leaks considered unworthy of prosecution were marked for administrative inquiries. Underscoring the administration’s determination, Robert M. Bryant, Mr. Blair’s national counterintelligence executive, was put in charge of stanching leaks.

That has helped increase the likelihood that suspects are pursued.

A key inspiration for the crackdown was that a “culture of leaking must be reined in to protect covert sources and high-risk intelligence operations and reassure allies that it is safe to share intelligence.” But it would appear the policy has not gone after leaks that could pose risk to “covert sources and high-risk intelligence operations to reassure allies that it is safe to share intelligence” if the leaks fit within the administration’s agenda.

On June 3, it was reported that Israel’s military was furious that the US government had revealed information on a top secret Israeli military installation, “a state-of-the-art facility to house a new ballistic-missile defense system.” An unnamed Israeli military official commented, “If an enemy of Israel wanted to launch an attack against a facility, this would give him an easy how-to guide. This type of information is closely guarded and its release can jeopardize the entire facility.” The spokesperson for the Pentagon, however, shrugged off this concern saying the “United States routinely published the details of its construction plans on a federal business opportunities website so that contractors could estimate the costs of jobs.”

Former Secretary of Defense Leon Panetta was also reported to have revealed the name of the Navy SEAL unit that was responsible for the raid on Osama bin Laden’s compound and the name of the unit’s ground commander at a “secret” speech. Mark Boal, a filmmaker behind Zero Dark Thirty, happened to be in attendance, according to an inspector general’s report.

Neither leaks are likely to result in prosecutions, but, under Obama’s aggressive policy, they could be. If there is to be equal protection under the law, then high-ranking officials responsible for unauthorized disclosures should be just as liable as lower level employees. (Plus, remember, there is no intent requirement for pursuing these people. They just have to know or have “reason to believe” there leak could have caused damage or injury to the United States.)

The policy gave “more latitude” to investigators to “comb through journalists’ records to hunt for suspects.” While there was an uproar over the Justice Department seizing the Associated Press’ phone records, members of the press can expect that if this sort of activity is helpful to investigations it will continue in some form (perhaps, with some cosmetic changes to make it less alarming to those who believe in press freedom).

Congress’ role in supporting the administration’s crackdown has been a key factor in enabling the prosecutions of leakers. After leaks on Obama’s secret “kill list,” covert cyber warfare against Iran and a CIA underwear bomb plot sting operation in Yemen, the Senate, led by the typically over-zealous chairwoman of the Senate Intelligence Committee, Dianne Feinstein, pushed anti-leaks proposals. The measures could have forced intelligence agency employees to surrender their pension benefits if they were found to have disclosed information without proper authorization and prohibited certain former intelligence agency employees from taking jobs as “consultants” or entering into contracts with media organizations. However, the proposals failed to pass because Sen. Ron Wyden decided to respond to the concerns of open government and press groups.

Just as he did after WikiLeaks began to release the documents that Pfc. Bradley Manning, who is on trial at Fort Meade, provided to the media organization, Sen. Joe Lieberman renewed his call for an “anti-leaks” law‘ in America. His call for the law went nowhere.

Retired general James Cartwright is being investigated for his role in leaking information on cyber warfare against Iran and the Stuxnet virus. That the administration may go after a former high-ranking general is seen as an unprecedented escalation in the war on leaks.

Unmentioned in the Times story is the development of a neo-McCarthyist “Insider Threat” program that encourages all government agency employees to look over their shoulder and inform on their colleagues if they see any “indicators” that their colleagues might be a spies or individuals that would leak and forsake their duty to safeguard classified information.

The crackdown on leaks that threatens press freedom and government employees’ First Amendment rights has been possible particularly because Obama is a Democratic president.

[The Bush] Justice Department prosecuted only one official under the Espionage Act for disclosing national security secrets, a Pentagon analyst first investigated in 2004 and convicted in 2006. As a conservative, President Bush would have faced a greater public backlash had he sought to imprison leakers, said Gabriel Schoenfeld, a senior scholar with the Hudson Institute, a conservative-leaning research organization.

Mr. Bush “was not willing to spend the political capital,” Mr. Schoenfeld said. “This president is very hawkish on this.”

Progressive or liberal forces, particularly those tied into the establishment, simply are unwilling to dissent and take issue with this aggressive policy as they would if Bush was still in power or if a Republican was president. (Of course, this statement applies to his expansion of executive power around drones and a global assassination program as well as top secret government surveillance programs that violate the Fourth Amendment.)

Up until former NSA contractor Edward Snowden’s disclosures on secret surveillance programs, it has not been unpopular for Obama to pursue leaks aggressively. A recent Quinnipiac poll of American voters, however, found that 55 percent considered Snowden to be a whistleblower (versus 34 percent who considered him to be a traitor).

Snowden is charged with violating the Espionage Act, but this poll suggests, if he ever did go on trial in the US, the public would be much less supportive of his prosecution than the prosecution of Manning.

Eight Americans have been charged under the Espionage Act by the Obama administration for leaking (seven for leaking to the press). That is more than twice as many as all previous presidential administrations combined.

A page describing what the eight did or allegedly leaked and how they were or have been prosecuted can be found here.


Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."