Thursday, June 14, 2012

Espionage Act Update

The Obama Administration has prosecuted, under the Espionage Act, twice as many individuals that have leaked information to the press as all preceding administrations combined. He has prosecuted 6 individuals who have leaked information to the press; all of his predecessors combined had only prosecuted 3. I have covered Bradley Manning’s pre-trial detention and his first pre-trial hearing. In January I also covered the cases of 4 other leak-related Obama-era Espionage act prosecutions. Today, I bring you an update on those cases as well as the story of the sixth Obama-era leak-related Espionage act prosecution. I will also discuss the 3 leak-related Espionage Act prosecutions that occurred under previous administrations.

Thomas Drake

In 2011 the Obama Administration dropped all major charges against Drake, who pled guilty to the misdemeanor charge of misusing the agency’s computer system. On July 15, 2011 he was sentenced to a 1-year probation and community service.

Shamai Leibowitz

Shamai Leibowitz pled guilty to disclosing classified information on May 24, 2010. He was sentenced to 20 months in prison.

Stephen Jin-Woo Kim

Stephen Kim worked as an analyst for a contractor of the State Department. In June 2009 he told James Rosen of Fox News that North Korea would likely respond to a United Nations Security Council resolution condemning its nuclear and ballistic missile tests with a nuclear test. The test didn’t occur. In August 2010 the Obama Justice Department charged Kim with the Unauthorized Disclosure of National Defense Information and for lying to the FBI. Kim’s trial is ongoing.

Jeffrey Alexander Sterling

Jeffrey Sterling discussed Operation Merlin, a covert Clinton-era CIA operation concerning Iran’s nuclear program, with James Risen of the New York Times. Risen detailed the operation in his book. The CIA maintains that Risen’s description of the operation is inaccurate. Sterling was charged by the Obama administration with disclosing national defense information and obstruction of justice in January 2011. Sterling’s trial is ongoing.

Bradley Manning

Bradley Manning’s latest pre-trial hearing occurred June 6-8. The defense used the hearing to obtain documents from the government relating to the government’s response to the Wikileaks disclosure and a State Department damage assessment relating to the leaks. Manning’s trial is currently scheduled to take place sometime between November and January. Manning has now been detained by the US military for over 2 years.

John Kiriakou

John Kiriakou worked for the CIA from 1990 through 2004. Kiriakou participated in the capture of suspected terrorist Abu Zubaydah. In 2007 Kiriakou did an interview with Brian Ross of ABC News where he revealed that Abu Zubaydah had been waterboarded. During the interview, Kiriakou said that Zubaydah became cooperative after only 30-35 seconds of waterboarding and that the information gained from the technique disrupted a number of attacks. In 2009 a Justice Department memo from 2005 was released that revealed Zubaydah had been waterboarded not once, but 83 times. Also in 2009 Ali Soufan, an FBI agent involved in the interrogation of Zubaydah, argued that valuable intelligence was obtained before “enhanced interrogation” was used. Soufan also believes that no information was collected from Zubaydah that couldn’t have been obtained through regular tactics. In 2010 Kiriakou admitted in his autobiography that he wasn’t present when Zubaydah was interrogated and that in his 2007 interview with ABC News, he relied on what he had overhead within the CIA about the operation. That context was not present in ABC’s presentation of the interview.

John Kiriakou was charged on January 23, 2012 and indicted on April 5, 2012. The indictment charges Kiriakou with one count of disclosure of information indentifying a covert agent, three counts of disclosure of national defense information (under the Espionage Act), and one count of lying to the CIA’s Publications Review Board to get his autobiography published.

The first two counts against Kiriakou (identification of a covert agent, and national defense information disclosure) involve an ACLU defense strategy. The ACLU is defending suspected terrorists at the Guantanamo Bay Prison. They assembled a photo lineup of suspected CIA interrogators and random individuals not associated with the prisoners in any way. This technique was meant to imitate a police lineup where witnesses identify suspects in criminal cases. The ACLU was attempting to find potential witnesses to testify about abusive treatment of detainees in order to obtain mitigating evidence against the death penalty which their clients faced.

In the prosecution’s criminal complaint, Kiriakou is alleged to have supplied the name of a covert CIA agent involved in the Zubaydah operation to a journalist who then supplied it to the ACLU. The name is said to have ended up in a classified court filing by the attorneys defending the Guantanamo detainees. The government’s complaint says that the agent was not photographed and that his name was not released to the public.

The third and fourth charges are both for the disclosure of national defense information. They relate to a 2008 front page New York Times article. The article detailed the interrogation of Khalid Shaikh Muhammad (KSM), the self-described mastermind of the 9/11 attacks. The author of the article and the New York Times made the irresponsible decision to publish the name of one of KSM’s interrogators, who was not involved in KSM’s waterboarding. The New York Times was criticized for that decision, including by Kiriakou. His indictment alleges that Kiriakou was a source for that story.

The final charge Kiriakou faces is for lying to the CIA Publications Review Board (PRB) in order to get his autobiography published. His indictment alleges that he told the PRB that a “magic box” discussed in his book was created in his own imagination, when in fact it was an actual part of the operation.

Kiriakou’s trial is ongoing.

Individuals prosecuted under the Espionage Act for leaking information to the press prior to the Obama Administration

Samuel Loring Morison

Samuel Loring Morison was a civilian intelligence analyst for the navy from 1974 through 1984. During his employment with the navy, Morison was also a contributor and editor for Jane’s Fighting Ships, a yearly reference work on the world’s navies, published in Britain. After Morrison decided he wanted to work full time for Jane’s, he sent three classified photos of the construction of the first Soviet nuclear-powered aircraft carrier to the sister publication Jane’s Defense Weekly. Morrison leaked the photographs in order to increase his likelihood of receiving a job a Jane’s, but he also had a political motive. Morrison said that, “If the American people knew what the Soviets were doing, they would increase the defense budget.”

The Regan Administration prosecuted Morison for the leak. In 1985 Morison was convicted of disclosing classified information to the press and sentenced to two years in prison. The Supreme Court declined to hear his appeal. He was pardoned by Bill Clinton on January 20, 2001, his last day in office.

Daniel Ellsberg and Anthony Russo

The Pentagon Papers chronicled the decisions that lead to US involvement in Vietnam. In 1969 Daniel Ellsberg and Anthony Russo copied the Pentagon Papers which according to Ellsberg showed that, “The decisions year after year were to continue the war, although all predictions pointed to a continued stalemate with this kind of approach and thus to prolong the war indefinitely.” *

Ellsberg leaked a copy of the document to the New York Times. After the Times’ first few articles on the Pentagon Papers, the Nixon Administration obtained a temporary prior restraint from a judge that prevented the Times from publishing further stories about the documents. Ellsberg then gave a copy of the Pentagon Papers to the Washington Post, which was also restrained. Ellsberg leaked the Pentagon Papers to 17 other newspapers as well. In 1971, the Supreme Court ruled in New York Times Co. v. United States, that the newspapers could publish and discuss the contents of the Pentagon Papers.

On June 28, 1971 Ellsberg turned himself in to face the charges against him. Ellsberg and Russo were charged with theft of government property, conspiracy, and violation of the Espionage Act. During the trial, it became known that White House operatives had burglarized Ellsberg’s psychiatrist, the judge in the case announced that he had been offered a job as head of the FBI by a White House official (which the judge considered a bribe), and it was revealed that the FBI had wiretapped Ellsberg and then claimed that it had lost the records documenting the wiretap.

All of this lead Judge Byrne to declare a mistrial on May 11, 1973. He told the court, “The totality of the circumstances of this case which I have only briefly sketched offend a sense of justice.”

  * David Rudenstine, The Day the Presses Stopped (Berkeley: University of California Press, 1996), page 40.

Postscript: The Listening Post did a special discussing Obama’s War on Whistleblowers titled, “Blowing the Whistle on the Obama Administration.” The show criticized the US news media for largely ignoring the story. It contains an extended interview with Jesselyn Radack who works for the Government Accountability Project defending whistleblowers.

Russia Today has done a good job covering the topic as well. CBS News did a great segment on Drake’s case in 2011. You can read the text of the Espionage Act yourself here.

UPDATE (11/18/12): John Kiriakou reached a plea agreement on October 23 with the Obama Justice Department. Kiriakou pled guilty to disclosing the identity of a covert officer and was sentenced to 30 months in prison, 3 years of supervised release, and a fine of 100 dollars. Charges 2 through 5 against Kiriakou were dropped.

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