In addition to ongoing leak investigations, six government employees and two contractors, including fugitive NSA contractor Edward Snowden, have been prosecuted since 2009 under the Espionage Act for providing information to reporters about, among other subjects, the NSA’s communications surveillance, the CIA’s aggressive interrogation of terrorism suspects and, in the case of Army Pvt. Bradley Manning, diplomatic cables and Iraq and Afghanistan war documents.
Even though they violated laws governing classified information, many of the leakers could be characterized as whistleblowers rather than spies; they publicized actions for which the government should be held accountable. But the Obama administration has drawn a dubious distinction between whistleblowing that reveals bureaucratic waste or fraud, and leaks to the news media about unexamined secret government policies and activities; it punishes the latter as espionage.
“It was never a conscious decision to bring more of these cases than we ever had,” Matthew Miller, a former spokesman for Attorney General Eric H. Holder Jr., told me. “Some strong cases,” inherited from the Bush administration, “were already in process,” he said.
“And a number of cases popped up that were easier to prosecute” with “electronic evidence,” including phone and e-mail records. “Before, you needed to have the leaker admit it, which doesn’t happen,” Miller added, “or the reporter to testify about it, which doesn’t happen.”
Every disclosure to the press of classified information now triggers a leak investigation, said Washington Post national news editor Cameron Barr. “Investigations can be done electronically. They don’t need to compel journalists to reveal sources.”
The Post’s Justice Department reporter, Sari Horwitz, said a Justice official told her that “access to e-mail, phone records and cellphones make it easier to do now.”
After the New York Times published a 2012 story by David E. Sanger about covert cyberattacks by the United States and Israel against Iran’s nuclear enrichment facilities, federal prosecutors and the FBI questioned scores of officials throughout the government who were identified in computer analyses of phone, text and e-mail records as having contact with Sanger.
“A memo went out from the chief of staff a year ago to White House employees and the intelligence agencies that told people to freeze and retain any e-mail, and presumably phone logs, of communications with me,” Sanger said. As a result, longtime sources no longer talk to him. “They tell me: ‘David, I love you, but don’t e-mail me. Let’s don’t chat until this blows over.’ ”