Photographer: Andrew Harrer/Bloomberg

How the U.S. Deals With People Who Leak Secrets: QuickTake Q&A

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The U.S. Justice Department signaled it’s ready to act on President Donald Trump’s demand to crack down on leaks, arresting a National Security Agency contractor for passing classified information to a media organization. The 25-year-old former U.S. Air Force linguist was charged on June 5 with providing the online publication, The Intercept, with a top-secret document that detailed Russian hacking efforts in the days before the 2016 election. Reality Leigh Winner faces as long as 10 years in prison, and the government may press for a tough sentence to deter other leaks.

1. What charges can leakers face?

Winner was charged with gathering, transmitting or losing defense information under 18 U.S. Code Section 793 (e), the part of the Espionage Act that makes it a crime to pass information to a person not entitled to receive it that might be used to injure the U.S. or give advantage to any foreign nation. Another section of the code the government can use is 798, which makes it a crime to pass on information to an unauthorized person relating to cryptography or the communication intelligence activities of the U.S., or any foreign government. The most serious charge that can be laid against a leaker is treason, which can be punishable by death.

2. What’s Trump’s position on leakers?

He’s done a total turnaround. During the election campaign, as his Democratic opponent Hillary Clinton was engulfed by negative publicity following a hack of servers at the Democratic National Committee that forced Chairwoman Debbie Wasserman Schultz to resign, Trump praised leaks from the hack. “Wikileaks. I love Wikileaks,” Trump said on the campaign trail in October. He changed his tune after taking office in January, railing against leakers in television interviews and on Twitter. In a meeting in the Oval Office with the then-FBI director, Trump reportedly told James Comey that he should consider putting journalists in prison for publishing classified information. The details of that meeting were then leaked to the New York Times.

3. Is Trump taking a new approach?

No. He’s apparently following up on what his predecessor, Barack Obama, did with unprecedented zeal -- cracking down on people who illegally passed on information, even reporters who published it. Under Obama, nine people were charged under the Espionage Act with passing information to media outlets, and journalists from Fox News, ABC and the Associated Press were ensnared in leak prosecutions. The Espionage Act, which has been around since 1917, wasn’t used against alleged leakers of classified information until 1973, and it was used in that way just twice more before 2009.

4. How are leakers treated by the courts?

It varies. Retired four-star general David Petraeus pleaded guilty in 2015 to a misdemeanor charge of mishandling classified information, after he provided it to his biographer Paula Broadwell. He was given two years probation and fined $100,000. At the other end of the scale is the case of Chelsea Manning, who was court martialed, convicted of violating the Espionage Act and sentenced to 35 years in prison. Manning, an intelligence analyst at the U.S. Army, passed almost 750,000 documents to WikiLeaks, including video files and military incident logs from Afghanistan and Iraq, which, among other things, exposed abuses of detainees. President Obama commuted her sentence to seven years, and she was released in May.

5. Have the prosecutions deterred leakers?

Apparently not. The Trump administration has been plagued by leaks, perhaps the most since Watergate. Columnist Charles Krauthammer called it "the Niagara of leaks” and a “loyalty problem inside the White House,” in an appearance on Fox News. The leaks began almost immediately as the president took office, with details of one of his first conversations with a foreign leader — Australia’s Malcolm Turnbull — leaking out, including Trump abruptly ending the phone call and calling it his “worst call by far.” A series of leaks to the Washington Post and the New York Times led to the resignation of Trump’s National Security Adviser Michael Flynn. A leak triggered a pause in intelligence sharing between U.K. investigators and U.S. officials after the New York Times published the name of a suspected attacker and photos from the scene of a bombing outside an Ariana Grande concert in Manchester, England. While promising to prosecute leakers whom he called a threat to national security, Trump has also tried to downplay their importance, saying in a May 28 tweet, “It is my opinion that many of the leaks coming out of the White House are fabricated lies made up by the #FakeNews media.”

The Reference Shelf

  • The Committee to Protect Journalists details how the U.S. Espionage Act can be used to prosecute journalists.
  • A Freedom of the Press Foundation article: “How the Obama administration laid the groundwork for Trump’s cracking down on the press.”
  • In Bloomberg View, Noah Feldman says that the prosecution of Winner could backfire.
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