On Monday, the Washington Post published an editorial critical of the prosecution of NSA whistle-blower Thomas Drake under the Espionage Act:
Mr. Drake's prosecution smacks of overkill and could scare others with legitimate concerns about government programs from coming forward. For example, the Justice Department charged Mr. Drake under a section of the Espionage Act that deals with “retention of classified information” and carries a possible 10-year sentence. Mr. Drake was indicted on five such counts in April 2010. Yet there are other statutes that deal with the mishandling or improper retention of classified information that do not involve espionage charges. These provisions seem to more accurately reflect the acts that Mr. Drake is accused of; they also carry far shorter sentences.
One of the big issues here is the selectivity with which the government prosecutes leakers. High-level officials leak national-security information to the press all the time, frequently in their own interest or that of their bosses, but they aren't prosecuted. Responding to Jane Mayer's original story on the subject a few weeks ago, Andrew Exum wrote:
I have a tough time having any degree of sympathy for those who leak classified information -- even when that information exposes a problem in or abuses of the system. And I think Mayer intends for us to pity her protagonist, who is being prosecuted for feeding information to a reporter for the Baltimore Sun. (The protagonist claims none of the information he leaked was classified, though it was cut-and-pasted from SECRET documents.) I found myself nodding along with the guy who told Mayer, "To his credit, he tried to raise these issues, and, to an extent, they were dealt with. But who died and left him in charge?" Exactly right: the system breaks down when every Tom, Dick, Harry and Jane gets to decide what gets released to the media and what does not. Unsurprisingly, journalists have a more sympathetic view toward those people who feed them scoops than do those whose jobs and lives are made harder by their colleagues leaking information.
It's hard to see how prosecuting Drake stops "every Tom, Dick, Harry and Jane" from leaking -- rather the chilling effect will only impact those people leaking information in the public interest without prior approval from their bosses. I wonder how many people on the Obama administration's national-security team would be prosecuted if they were held to the same standard as Drake based on the deluge of information revealed in the aftermath of the raid that killed Osama bin Laden?
I do think there's a difference between the indiscriminate disclosure of information, Julian Assange-style, and what Drake was doing. Drake's leaks concerned the government wasting money or breaking the law with its surveillance policies, were obviously matters of public interest, and he took action after exhausting his options within the system. But his leaks weren't authorized by someone in charge, and they caused problems for the NSA, so he's facing prison time. The message this sends is that it's only criminal to leak classified information if it might make the federal government look bad. There simply isn't any other option when the government is breaking the law in secret, other than someone deciding that the public has a right to know. What's the bigger "breakdown" in the system, the government breaking the law in secret, or the person who lets everyone know it's happening?
