Jesselyn Radack is the National Security & Human Rights Director of the Government Accountability Project.
In 1971, Richard Nixon’s administration charged Daniel Ellsberg and Anthony Russo, the men who leaked the classified Pentagon Papers, under the Espionage Act. The case was eventually dismissed due to government misconduct. With the guilty verdict against Pfc. Bradley Manning, President Obama has won what Nixon could not: an Espionage Act conviction against a government employee accused of mishandling classified information. Obama’s administration has relied heavily on the draconian World War I-era law — meant for prosecuting spies, not whistleblowers — in its ruthless, unprecedented war on “leaks,” invoking it seven times (more than all other U.S. presidents combined) to go after people who reveal information embarrassing to the United States, or, worse, that exposes its crimes.
Until this week, this extreme crackdown had failed. I represent two of the whistleblowers whom the Obama administration at one time charged with espionage: former National Security Agency senior executive Thomas Drake and former CIA agent John Kiriakou. Not coincidentally, they exposed two of the biggest government scandals of the Bush administration — secret domestic surveillance and torture, respectively.
A little-known fact is that the government ended up dropping all espionage charges in both cases. In contrast, this did not happen in the case of Manning: A military judge convicted him on six espionage counts, among other charges. A key difference is that Manning’s trial occurred in a court-martial, significant parts of which were conducted in secret. The trial was barely covered by most media outlets, and those that did cover it closely were thwarted at every step by restrictive, arbitrary and ever-changing press rules from the Army’s Public Affairs Office. Thus the government was able to avoid the public and media scrutiny that assisted Drake and Kiriakou.
Prosecuting someone for espionage is one of the most serious charges you can level against an American. The term is so incendiary that it alienates a whistleblower’s natural allies among open-government, transparency and civil liberties advocates. To add insult to injury, reporters who bravely cover these cases and the lawyers who zealously represent those who speak truth to power now find themselves criminalized. The war on whistleblowers is just as much a war on journalists, including: the Justice Department’s secret subpoena of phone records from 20 phone lines at the Associated Press; Fox News’s James Rosen being accused of being an “aider, abettor and/or co-conspirator” by publishing a source’s information; and a disastrous appeals court ruling that New York Times reporter James Risen must testify against his CIA source.
Opponents of whistleblowers can irresponsibly shout menacing words about lawyers and journalists facing criminal charges of aiding and abetting or being an accessory to a crime, but their ignorance is on full display. The most recent example is former NSA and CIA director General Michael Hayden calling the Guardian’s Glenn Greenwald a “co-conspirator” for writing a series of stories that exposed massive NSA surveillance programs based on Edward Snowden’s disclosures. Yet a cursory search would show that both legal and journalistic ethics rules already prohibit a lawyer or journalist from knowingly counseling or assisting a client or source to commit crimes or fraud. Representing a despised client is in the finest legal tradition set by John Adams, who agreed to represent the British soldiers accused of the Boston Massacre, despite the infamy and even death threats he faced, because of the duty he felt to offer adequate representation.
In this case, the people being prosecuted are those who disclosed fraud, waste, abuse and illegality of the highest order for the purpose of benefitting the public. It sends the most chilling of messages to jail truth-tellers and dissenters, essential actors in maintaining an informed citizenry, which lies at the heart of a free and open democratic society. After all, in our grand experiment with democracy, the people are supposed to control the government, not the other way around. The work of the government is supposed to be public and people’s personal lives private, not the other way around. There are a number of brave souls trying to correct the trajectory of decline that our country is on. Public servants should not have to choose their conscience over their careers, and especially their very freedom.