Ninety-three years ago we passed a law that is still being bungled today. In 1917, in the age of the Titanic and the opening of Fenway Park, World War I was still raging. Congress passed the Espionage Act, aimed at spying.
Today, when this creaky and aging legislation is dusted off, it often targets whistleblowers more than spies. Perhaps it is unsurprising that the Obama administration appears more intent on using it against leakers than did prior administrations. Testosterone flow is endless, and Powers That Be don’t like to be embarrassed by tales of incompetence, waste and abuse.
All that’s required is a little over classification of otherwise useful secrets — useful in informing citizens of exactly what its government is doing in their name.
Today the government is going after an apparent patriotic bureaucrat, stuck deep among the 30,000 employees working for the National Security Agency, for exposing inept bungling in NSA attempts to keep up with digital technology when monitoring cell phones, emails and web traffic.
Thomas Drake, 53, was shunned numerous times when he tried to alert his superiors to what he felt were wasteful attempts to use the wrong technology. For talking to the Baltimore Sun, he faces prison, and now works at an Apple store. His title? “Senior Change Leader/Chief, Change Leadership & Communications Office, Signals Intelligence Directorate.”
For his trouble, White House Chief Agent of Change is prosecuting him. Perhaps Obama should have picked up the phone and asked Drake how the latter could further serve his country.
Government agencies have long gone after those who embarrass them, using anti-spy legislation for what are often political purposes.
The standard for such prosecutions is the Pentagon Papers case in 1971. The Papers were an exhaustive study in U.S. Vietnam policy through 1967. They concluded that successive presidents had misled the public about the Vietnam War, which dragged on until 1975. The most damaging revelation was the conclusion that the Defense Department was pushing the conflict not for any national security reason, or even because the U.S. was threatened by a classic “enemy.” Instead, 70 percent of the motivation was to avoid “a humiliating defeat.”
The Papers remained classified primarily because they might embarrass successive administrations. When Richard Nixon took over the presidency from Lyndon Johnson in 1969, he continued to cloak the study in secrecy. But the papers were leaked in 1971. First, a U.S. Senator had them read into the record of a committee he chaired. Under the Constitution, no member of Congress may be prosecuted for utterances there.
The Papers also were leaked to the New York Times in June 1971. When the government succeeded in barring their further publication with a restraining order, they hopscotched to the Washington Post and other papers. The Supreme Court ruled 6-3 by the end of the month that the government had made no compelling case for “prior restraint.”
In other words, a majority of justices held that the Pentagon Papers, which suggested the U.S. was maintaining a war for no reason save embarrassment, should never have been classified. Citizens had a better claim for reading and discussing them than their government had for covering them up.
Nonetheless, the games continue, hardly limited to the U.S. government. Not to be outdone, many lesser agencies, following the hallowed example of their leaders since 1917, have been able to banish whistleblowers simply because they leaked embarrassing information.
The FBI has taken up one new “leaking” case each month in recent years, according to a recent study. The agency is not above the type of apparent retaliation that makes its portrayal in television’s “NCIS” kids’ play. In one case, a Congressional staffer who worked with the NSA’s Thomas Drake had her home raided, along with three other workers whose observations about the NSA sparked a review of it.
In 2005, the Bush Administration unleashed a determined attempt to find out who had leaked detailed reports that the U.S. was using warrantless wiretaps on its own soil. The tactic, concocted and defended in the name of a post-2001 anti-terror campaign, has developed into a largely legal and political debate. No matter. The government continued to think of those who would reform it through leaks as spies, rather than whistleblowers.
Still, it is a little surprising to see the aforementioned Chief Agent of Change at the White House swept up in such efforts. He also has campaigned as an agent of transparency. That needed reform clearly is still unwelcome in Washington.
There is a tendency to go after those who leak “classified” information for simply breaking rules aimed at the protection of the U.S. But each time such prosecutions are misused, they weaken our confidence in the security agencies’ truthfulness. We have long known such agencies would classify the recipe for a ham sandwich if they thought they could, claiming such disclosure would weaken an obscure “intelligence capability” if disclosed, and duck the resulting political scrum when the cover story blew.
Maybe the ham sandwich needs a new (classified) recipe.
The Usual Suspect (firstname.lastname@example.org ) is a founder of the Aspen Daily News and appears here on Sunday.