AP Photo by Jacquelyn Martin
In 2009, President Obama promised to create a more transparent, whistleblower-friendly government.
But the reality is that federal employees who have given government secrets to news media organizations in recent years have ended up being prosecuted as leakers.
Former CIA agent John Kiriakou was recently sentenced to 2 1/2 years in prison, becoming the first CIA agent ever to be jailed for sharing government secrets with the press under the Obama Administration’s efforts to prosecute leakers.
“I regret giving out the name,” Kiriakou said in an interview days before he was sentenced to prison. “It was a momentary lapse in judgment. But I don’t regret whistleblowing on waterboarding.”
In December 2007, Kiriakou spoke to ABC news about the U.S. practice of waterboarding war criminals. Later, he gave a New York Times reporter the name of an agent involved in the illegal interrogation technique.
In April, Kiriakou was charged with one count of violating the Intelligence Identities Protection Act, three counts of violating the Espionage Act and one count of making false statements. He pleaded guilty to violating the Intelligence Identities Protection Act and was sentenced to prison, which he began serving at the end of February.
Kiriakou is one of six government officials charged under the 1917 Espionage Act during the Obama administration — that’s more people charged than during all previous administrations combined. Before 2009, the act was used three times against government officials.
Jesselyn Radack, the national security and human rights director of the Government Accountability Project, said the “selective and vindictive” prosecutions are disappointing after the president pledged to usher in a new era of open government when he took office in 2009.
“He was elected on a platform of transparency and openness and a platform in which he praised whistleblowers,” said Radack. “Not only has he not carried through on whistleblower promises, but he’s gone one step further and is prosecuting.”
The Obama administration says it supports lawful whistleblowers and recently passed the Whistleblower Protection Enhancement Act, which gives federal workers a way to report government wrongdoing internally and without repercussions. However, the bill does not provide protection to those that work in national security or anyone who speaks to journalists.
Radack, who represented Kiriakou, said the effort against whistleblowers is certainly chilling interactions between journalists and federal employees.
“This is the backdoor way of going after journalists,” Radack said. “I don’t think the administration has been very transparent about their real motives. They’re just making examples of these people and deterring future leaks that aren’t authorized.”
The Espionage Act was passed in 1917 and has been amended several times. It was first used to punish those who didn’t support World War I and made it a crime to leak information with intent to harm U.S. armed forces.
Recently, the Obama administration has charged six government employees with violating the act by speaking to journalists about classified information. However, all of the defendants whose cases have seen the inside of a courtroom have had the charges against them reduced or dropped.
“They use [the Espionage Act] as a hammer to beat you down with, knowing that this case is going to fall apart,” Kiriakou said. “They use it as a threat, a bargaining chip against you.”
Last summer, lawmakers called for tougher laws and investigations into classified leaks after The New York Times reported on Obama’s terrorist “kill list” and the Stuxnet program, an American government created computer virus that ran cyberattacks against Iran’s nuclear program.
Sen. Dianne Feinstein, chairman of the Senate Intelligence Committee, claimed that leaks were coming from the White House. Attorney General Eric H. Holder Jr. directed U.S. attorneys in Maryland and Washington, D.C., to investigate senior government officials’ involvement in the leaks, and Director of National Intelligence James Clapper put in place measures to crack down on leaks within federal ranks.
The concern about leaks spurred legislators to pass the Whistleblower Protection Enhancement Act in November. The act provides federal employees a safe way to report classified concerns internally without going to the press or dealing with possible backlash. However, the act does not apply to national security and intelligence employees.
Project on Government Oversight spokesman Joe Newman said his organization has been trying for 13 years to get the act passed.
“We were very pleased with the Whistleblower Protection Enhancement Act,” he said. “It was passed and we didn’t get everything we wanted, but it still made some significant progress to protect whistleblowers.”
Radack said the act is a step in the right direction but falls short of protecting an important sector of the government. It also does not provide protection for anyone who speaks to the press.
“It’s done a number of good things, but in terms of actually protecting the whistleblowers who I’d argue need it the most, like my clients and the people being prosecuted, they’re specifically excluded,” Radack said. “Their disclosures would be the most severe and meaningful, and they’re not protected at all.”
Despite the passage of the Whistleblower Protection Enhancement Act, the Senate Intelligence Committee wanted to address the issue of internal leaks more directly. In what Newman called an overreaction to the rising number of leaks, the committee proposed measures that would require reporters to only speak to designated public affairs officials and would prevent off-the-record talks between journalists and government employees. Sen. Ron Wyden was the only senator to place a public hold on the 2013 Intelligence Authorization Bill in opposition to the legislation.
Ultimately, Wyden’s hold on the bill led to negotiations that resulted in the removal of the controversial provisions and the passage of the bill in December.
A Culture of Secrecy
The Obama administration has done a lot to open the government in the last four years, but when it comes to prosecuting whistleblowers, there’s room for concern, said Newman, the Project on Government Oversight spokesman.
“The government is going after the messenger when they should be concerned about what these people are saying,” he said. “The overreaction to WikiLeaks has influenced what we’ve seen in the past four years under the Obama administration, which has been a little heavy-handed in the use of the Espionage Act.”
After Army private Bradley Manning allegedly provided hundreds of thousands of classified documents to WikiLeaks, a file-sharing website that publishes classified information, the Obama administration began prosecuting loose-lipped government employees. Manning was charged under the Espionage Act and is awaiting trial.
Newman said part of the reason there has been an uptick in leaks is due to the culture of secrecy within the government.
“A lot of times, whistleblowers are following the chain of command but are still getting rebuffed,” Newman said. “And then the prosecutions are very heavy-handed and intimidating. That’s scary. Do you want to come forward and face possible prosecution? Those things have a strong chilling effect.”
Kiriakou said the atmosphere within the CIA was very aggressive and coming forward with concerns was not encouraged.
“It was so militant,” he said. “If you weren’t part of the solution you were part of the problem. It was unspoken but clearly out there.”
Radack said that a lot more information is being kept secret than is necessary, and government workers are rebelling against that.
“They see war crimes, crimes against humanity, illegal domestic surveillance of Americans, and it’s all being protected under the guise of secrecy and classification when, in reality, that stuff should totally be in the public domain,” Radack said.
Matthew Miller, former director of the Justice Department Office of Public Affairs, argued in an article he wrote for The Daily Beast that people who label those being prosecuted as whistleblowers ignore the harm they have caused.
“Sometimes the difference between blowing the whistle on wrongdoing and exposing a legitimate national security program is in the eye of the beholder,” Miller wrote. “But some things are secret for a reason, and when government employees violate the law to disclose information that undermines our national security, there must be consequences. It may not be popular, but the administration is right to enforce these laws.”
But the information whistleblowers have shared with the media has not inflicted harm upon the country, Radack said.
“In all these cases the government has claimed that the U.S. has been harmed in some way, though they never articulated how,” Radack said. “It’s purely a lot of fear mongering that we see in these cases. No identifiable harm has ever been claimed by the government as a result of these men’s disclosures.”
Whistleblowers versus leakers
Newman said whistleblowers like Kiriakou are punished because the government has such a narrow definition of what constitutes a whistleblower versus a leaker.
“All whistleblowers might be considered leakers, but all leakers aren’t whistleblowers,” Newman said. “Prosecutors will label someone a leaker to frame them in a bad light when in fact that person should be considered a whistleblower and deserves protection under the law.”
The Department of Justice released a statement last year insisting that it does not target whistleblowers, which it defines as any federal employee that reports government wrongdoing through “well-established mechanisms” within the government.
“An individual in authorized possession of classified information has no authority or right to unilaterally determine that classified information should be made public or disclosed to those not entitled to it,” the statement said. “The leaker is not the owner of such information and only the owner can declassify such information.”
Many recent leaks that have been reported by the media are authorized leaks from the White House, according to Radack. For example, details on the raid of Osama bin Laden’s compound were widely shared by Obama aides, despite the fact that the information was classified.
In his article for The Daily Beast, Miller wrote that he thinks the difference between leakers and whistleblowers depends on what is being exposed.
“Leaks of classified information can endanger American soldiers and intelligence officers and expose sensitive national security programs to our enemies,” he wrote. “Whistleblowers expose violations of law, abuse of authority, or a substantial and specific threat to public health or safety.”
Although the Justice Department defines a whistleblower based on how he or she disseminates classified information, Newman said the motivations of the individual should be considered.
“What is their motivation for bringing this information forward?” Newman said. “We believe whistleblowers are motivated by the public interest and are trying to expose waste, fraud and corruption.”
Newman said the government’s definition of a whistleblower can be widened through new legislation that would give more protection to people within the intelligence and national security community.
“It’s a new Congress and the things we didn’t get in the last whistleblower bill are things that we’ll look for in the future,” Newman said.
Meanwhile, six government employees are being prosecuted for trying to make the United States a better country, Radack said.
“At the end of the day, John (Kiriakou) is going to jail,” she said. And it’s especially repugnant because he is the only CIA operative to go to jail in connection with this torture program, and he didn’t torture anyone. He just blew the whistle on it.”