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Holding the Government Accountable

Six Americans Obama and Holder Charged Under the Espionage Act (and One Bonus Whistleblower)

Though rare, U.S. presidents have attempted to use the World War I-era Espionage Act to silence Americans from leaking information to the media for decades. It is a charge that is as controversial, as it is grave. This is the law the Nixon administration infamously invoked when attempting to bar the media from continuing to publish the classified Pentagon Papers—the second largest leak of classified information to the press in the U.S., after Wikileaks. Nixon of course, was unsuccessful, and his shattered reputation never recovered.

But guess what? The Nixon Administration is small potatoes compared to the present. When it comes to wielding the “incomprehensible” Espionage Act to stop disclosures of classified information, one presidential administration has the rest beat by a mile: The Obama Administration. This Administration far outnumbers every previous one in prosecuting leaks of classified information to the media. The Department of Justice under Obama and Attorney General Eric Holder has used it more than all prior administrations combined.

Here are six cases where the Obama Administration charged an American with the Espionage Act—and one very similar case where a whistleblower underwent a criminal investigation for leaking information to the press. After perusing these, be sure to check out POGO’s Adam Zagorin’s piece for further analysis on Obama’s use of this contentious law.

Thomas Drake

Drake is a former senior executive at the National Security Agency, who was charged under the Act for allegedly retaining top-secret defense documents for the purpose of unauthorized disclosure. Drake’s defenders called him a whistleblower who was a key witness in a Defense Department Inspector General audit, first obtained by POGO, which found that the NSA spent $1.2 billion on a contract that was ineffective, when it could have done it in-house for $3 million. The espionage charges were ultimately dropped after public pressure for leniency, and Drake pleaded guilty to a misdemeanor for exceeding authorized use of a computer (which did not involve classified information).

Shamai Leibowitz

Leibowitz is a dual U.S.-Israeli citizen who worked as a translator for the FBI. He was tried under the Act and sentenced to 20 months in prison last year for leaking classified information to a blogger. He released the documents because he was concerned about the possibility of a “disastrous” Israeli strike on Iran. The blogger told The New York Times that Leibowitz is an “American patriot and whistleblower.

Stephen Jin-Woo Kim

Kim is a former contractor for the State Department who was indicted for allegedly leaking nuclear information about North Korea to Fox News. Kim has pleaded not guilty, and his lawyer has denounced the charges, and says the leak is an example of “the type of government-media exchanges that happen hundreds of times a day in Washington.”

Bradley Manning

Manning is an Army intelligence analyst who was charged under the Act for allegedly disclosing a Defense Department video showing a U.S. helicopter shooting journalists in Baghdad, State Department diplomatic cables and intelligence reports on the Wars in Afghanistan and Iraq to Wikileaks. According to The New York Times—which published some of the material after receiving input from the government on its sensitivities—Manning has been alternately portrayed as a “premeditated traitor” and an “accidental hero.” If convicted on all charges, Manning could face life in prison.

Jeffrey Sterling

Sterling is a former CIA agent who was indicted under the Act for allegedly disclosing unauthorized national defense information and the identity of a “human asset” to a New York Times reporter. Specifically, prosecutors believe Sterling talked to the reporter about a botched U.S. operation to thwart Iran’s nuclear weapons program. Sterling has pleaded not guilty—and some critics reportedly say Sterling is a “test case” for pursuing charges against Wikileaks founder, Julian Assange.

John Kiriakou

Kiriakou is the CIA's former director of counterterrorism operations in Pakistan, who was charged under the Act for allegedly leaking to reporters the names of two agency operatives involved in the interrogation of terrorism detainees under the George W. Bush Administration. Kiriakou was also charged with violating the Intelligence Identities Protection Act. Human rights and open government advocates like the Government Accountability Project have harshly criticized the charges.

Bonus! Thomas Tamm

Tamm is a former lawyer in the Department of Justice who admitted to leaking to The New York Times information about George W. Bush’s warrantless wiretapping program. Although not officially charged under the Espionage Act, he was the subject of a five-year criminal investigation for leaking information to the press. Ultimately, the Justice Department dropped the investigation and didn’t charge Tamm.

Update: Corrected text about Drake's misdemeanor.