Former State Department arms expert Stephen Kim, indicted for allegedly leaking secrets about North Korea to Fox correspondent James Rosen, is involved in pre-trial negotiations. And the FBI is still trying to identify the person or persons who gave information to the Associated Press about the CIA’s clandestine operation that infiltrated al-Qaeda in the Arabian Peninsula’s bombing operations.
Those who allegedly broke the law should be handled through the judicial system. But in the wake of these four incidents, perhaps it’s time to pause and separate fact from fiction, and see how we can remedy a problem we have: Every leak of national security shouldn’t require invoking the Espionage Act of 1917, which, at its extreme, calls for life imprisonment or the death penalty.
We need a separate law. It would be used when the leaker’s intent is not to harm the United States or aid a foreign nation or entity.
Easier said than done. Remember, criminal laws are written as much to deter actions as they are to punish offenders.
That 1917 act was passed hastily, two months after the United States entered World War I against Germany in an effort to mete out harsh penalties for interfering with military operations, as well as traditional spying. Several amendments have been added to try to address various types of unauthorized disclosures.
There already are other laws that can cover leakers. Snowden, for example, in addition to being charged under the Espionage Act, faces charges under a statute that punishes individuals for theft or conversion of government property for their own use or that of others. It does not necessarily involve disclosing classified information, and it carries the possibility of imprisonment for up to 10 years. Under the Espionage Act, the penalty could be death in wartime circumstances.
Leakers, however, act with varied intentions, and the law should consider that. The leaker could be a whistleblower, for example, frustrated after trying within the system to expose wrongdoing or waste and then turns to the news media.
But he or she also could be an individual with less noble motives: They simply disagree with an administration’s policies and want to promote their own views with cherry-picked intelligence; they are temporarily angry at their job situation; or they just want to gain favor with the media.
Another problem is how to determine whether the leaked information would harm national security. That knowledge comes after the fact, but we’ve seen that the nation survives leaks.
In the past 30 years, I’d say few leaks have been so major that they generated full-scale investigations, and only a handful have led to prosecutions.