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Since his election in 2008, President Obama has overseen the indictment of seven individuals for unauthorized disclosures of classified information. This track record set the bar high for future administrations, as more leak cases have been prosecuted under Obama than all other presidents combined.

More impressive than the sheer number of prosecutions is that the President has also overseen only the second successful conviction under the Espionage Act in the history of the more than 100-year-old law. In July 2013, Army Private Bradley Manning, who is now known as Chelsea Manning and made thousands of documents public through the online site WikiLeaks, was found guilty of five counts of violating the Espionage Act and five counts of theft. However, Manning was not found guilty of aiding the enemy – the gravest charge he faced under the Espionage Act.

Despite this administration inadvertently setting the record for cases prosecuted, not one has been against a member of the press. All, however, have been brought against current or former government officials who have leaked classified information to the press for publication.

It’s often questioned why these individuals are prosecuted, while members of the press who make that information public are not. Some have warned that prosecuting members of the press in cases such as WikiLeaks “would open the proverbial door to prosecuting The New York Times or other traditional news sources that regularly publish classified information” (Kitrosser). Recently, reporter David Gregory and Rep. Peter King (R-NY), questioned why Glenn Greenwald, the former journalist for The Guardian, who reported on much of the information leaked by former military contractor Edward Snowden, was not going to be held liable for his actions.

Gregory and King are not the first to suggest holding journalists accountable for publishing classified information in the public domain. In May 2006, former Attorney General Alberto Gonzales piqued the interest of reporters and newspapers across the country when he stated that “there are some statutes on the book which, if you read the language carefully, would seem to indicate” that it is possible to prosecute journalists for publishing classified information (Silver).

Although it would later be clarified that Gonzales was only specifically referring to certain sections of the Espionage Act, a 2006 Congressional Research Service Report went on to identify four statutes that could be used to prosecute the press for unauthorized disclosures of classified information. They are: 18 U.S.C. § 641, which deals with the theft of public money, property, or records; sections of the Espionage Act of 1917; the Atomic Energy Act of 1954; and the Intelligence Identities Protection Act of 1982 (Silver).

Seven years later, these laws are still available outlets for the government to prosecute members of the press if they so chose to pursue them. However, current Attorney General Eric Holder has made clear that the Obama administration will not do so.  In a recent hearing before the Senate appropriations subcommittee, Holder stated that the Justice Department’s “goal in investigating leak cases is to identify and prosecute government officials who jeopardize national security by violating their oaths, not to target members of the press or discourage them from carrying out their vital work.” He emphasized that, “The department has not prosecuted, and as long as I’m attorney general, will not prosecute any reporter for doing his or her job.”

A few weeks ago, Bart Gellman, former national security reporter for The Washington Post, and General Michael Hayden, former Director of the National Security Agency (NSA) and Central Intelligence Agency (CIA) and former Deputy Director of National Intelligence, gave a lecture at Duke University’s Sanford School of Public Policy. The two debated the differences between leakers and whistleblowers in an age where national security reporting has turned digital. Their conversation provided the perfect picture of the conflict that emerges when the media’s responsibility to offer the public information is juxtaposed with the need for secrecy in the government’s efforts to fulfill its constitutional duties to provide for the national defense.

And Gellman provided a clear picture of what a “reporter doing his or her job” looks like. Gellman’s self-stated “goal as a reporter is to maximize the information available to the public for the purposes of self governance” (Gellman & Hayden). He explained the process that he goes through when deciding what to publish when he receives classified information, which alone revealed his respect for that information and his understanding that, despite his First Amendment freedom to publish, some information must remain classified for the security of the nation.

First, when discussing that information over the phone with government officials, Gellman references only page and paragraph numbers of documents when the conversations are on an open line, so as not to reveal any information in the chance that someone is listening in. Gellman also revealed that he decided – even before speaking with government officials – to not publish a portion of the Snowden documents because he inherently recognized the damage that the information could do to national security and intelligence collection capabilities for legitimate defense activities that were protecting American citizens. However, Gellman did acknowledge the duty he feels to publish information that he believes the public has a right to know. For example, the only information he decided to publish from the Snowden leaks that he was asked not to was the name of the nine companies that were sharing metadata for American citizens with the government (Gellman & Hayden).

Gellman also stated that, based on his experiences with those that share classified information with the media, he believes that the standard definition of a  whistleblower is often too narrow and misconstrued. He argued that whistleblowing is often narrowly defined as the act of reporting activities that are unlawful, wasteful, fraudulent, or abusive, but that “certainly there’s a category of information that the public ought to know about that’s not unlawful conduct.” For example, Gellman referred to the NSA’s spying activities as “unknown lawfulness” that he believes the public had the right to be made aware of. According to Hayden, the NSA program in question had been authorized by two presidents, by statute on multiple occasions, and by the federal court, making it a lawful activity (Gellman & Hayden). But Gellman posed that his primarily responsibility as a journalist was to offer information that brought  “unknown lawful” activities such as these to light, when it would benefit the public.

On the other hand, Hayden posed that some individuals – such as Snowden, in his opinion – masquerade as whistleblowers with a larger intended purpose when the government views them a leakers who are releasing information without a clear intent to uncover unlawful, wasteful, fraudulent, or abusive government conduct.

“I don’t think Snowden was an innocent who went into government service and was suddenly offended by something he discovered,” Hayden said. To use Hayden’s metaphor, Snowden was not a gatherer, but a hunter who spent the better part of a year looking through NSA systems to find information that he wanted to make public (Gellman & Hayden).

However, Snowden has publicly made statements avowing that he believed he was uncovering government wrongdoing and abuse of power by releasing information that he carefully curated to remove sensitive information such as names – unlike Manning, who released troves of documents without any effort to redact personal information that they may have included. From statements he made at his trial, Manning more closely fits Hayden’s image of a leaker posing as a whistleblower. At his trial, Manning conceded that he did not “even look at the proper channels” for how he could release the classified information in question within the military chain of command, something that a true whistleblower who intended to properly reveal government wrongdoing may have initially sought out.

The overall question posed by both of these recent cases, and the slew of leak prosecutions under President Obama, is whether or not the increasing number of prosecutions (but few convictions) of government officials has deterred others from leaking information. According to New York Times national security reporter Scott Shane, it may have. Shane recently told the Committee to Protect Journalists: “I think we have a real problem. Most people are deterred by those leak prosecutions. They’re scared to death. There’s a gray zone between classified and unclassified information, and most sources were in that gray zone. Sources are now afraid to enter that gray zone” (Downie & Rafsky).

However, President Obama’s current press secretary, Jay Carney, isn’t worried. He also spoke with the Committee to Protect Journalists and said that “the idea that people are shutting up and not leaking to reporters is belied by the facts,” citing anonymously sourced media reports about planning for military action in Syria on the day he gave his interview (Downie & Rafsky).

 

Works Cited

Downie Jr., L. & Rafsky, S. “The Obama Administration and the Press.” Committee to Protect Journalists Special Report. 10 October 2013.

Gellman, B. & Hayden, M. (11 November 2013). Leakers or Whistleblowers? National Security Reporting in the Digital Age. 2013 Robert R. Wilson Lecture. Lecture conducted from Duke Sanford School of Public Policy, Durham, NC.

Kitrosser, Heidi. “Free Speech Aboard the Leaky Ship of State: Calibrating First Amendment Protections for Leakers of Classified Information.Journal of National Security Law & Policy (6): 409-446.

Silver, Derigan. “National Security and the Press: The Government’s Ability to Prosecute Journalists for the Possession or Publication of National Security Information.” Communication Law and Policy 13 (2008): 4, 447-483.

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