As the name suggests, the U.S. Espionage Act of 1917 is intended to punish those who commit acts of treason, whether for personal gain or out of ideological conviction. The Obama administration, however, seems to have abandoned all caution in wielding this extraordinary power.
A new Bloomberg News investigation shows that Attorney General Eric Holder’s Justice Department has indicted six government workers under the act for leaking information. If that doesn’t sound like a lot, consider that until President Barack Obama took office, there had been only three such cases in U.S. history.
All the more alarming is the cavalier way the law has been used to go after people who neither spied for other governments nor passed on classified information for financial gain. Previously, its harsh provisions were reserved for egregious crimes such as those of the double agents Aldrich Ames and Robert Hanssen. Five of the six recent cases involve leaks to the news media, and most of those were by people who say they believed they were blowing the whistle on waste, fraud and abuse in government. (The sixth is Army Private First Class Bradley Manning, accused of leaking classified documents to WikiLeaks, an organization that published them online.)
Among the more disturbing examples of the administration’s overreach is the case of Thomas Drake, a senior National Security Agency employee who was prosecuted under the Espionage Act in 2010. Drake says he contacted a reporter after his superiors at the NSA failed to respond to his concerns about waste of funds in program development, along with intrusions into the lives of law-abiding American citizens. He is adamant that he didn’t disclose classified information and, indeed, the case against him collapsed.
Had he been convicted, he could have faced 35 years in prison. Even so, his reputation was destroyed. His career in public service is over, and his finances wiped out by his legal defense. He now works at an Apple store in a Washington suburb.
Abuse of the law also imposes a heavy cost for the rest of us. As the article makes clear, the crackdown by the administration chills dissent, curtails the free press and, as Drake told Bloomberg, sends a signal to would-be whistle-blowers in government to “see nothing, say nothing, don’t speak out -- otherwise we’ll hammer you.”
These ill-advised prosecutions are a blatant violation of Obama’s promise to “usher in a new era of open government.” To be fair, he took a step toward rectifying things with a recent policy directive to executive-branch agencies that extends current federal whistle-blower protections to national security and intelligence employees. It would shield those workers from retaliation if they report waste, fraud or abuse through official channels, broadening the Whistleblower Protection Enhancement Act that passed the U.S. House last month and awaits Senate approval.
Still, that’s not sufficient to prevent the abuses of power described in the Bloomberg article. The president should also ensure that government whistle-blowers won’t be subject to the Espionage Act if they talk to the news media after their efforts to report wrongdoing to their superiors go unheeded or are met with retaliation.
The government needs to keep secrets and must be able to rely on the loyalty of the people it entrusts with them. Traitors deserve to face the harshest penalties. Whistle- blowers, however, deserve protection.
Today’s highlights: the editors on what the presidential candidates aren’t saying about coal power; Caroline Baum on five things the Republicans won’t tell you; Ezra Klein on Romney’s biggest problem; Jonathan Mahler on the decline and fall of the New York Yankees; Fouad Ajami on Malala and the history of Pakistan; Phil Zuckerman on why secular voters may be more powerful than you think.
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