Plugging the leaks: the war on disclosure

Henry Vanderwater was an army private in the Union-occupied town of Alexandria, Virginia, during the American Civil War, charged with defending the seat of the federal government in Washington.

In 1863 he passed a military command roster, showing how well the town was guarded, to a local newspaper, which published it. The soldier was found guilty of aiding the enemy on the basis that Confederate soldiers could read the roster. He was sentenced to three months of hard labour and dishonourably discharged.

A century and a half later, US prosecutors tried unsuccessfully to use the Vanderwater case as a precedent in the court martial of Bradley Manning, the soldier and self-confessed leaker of hundreds of thousands of sensitive military and diplomatic documents to the anti-secrecy group WikiLeaks.

That the US government should dredge up a 150-year-old case during a time of civil war to prosecute a leaker of secrets shows the lengths the United States is going to in the name of protecting national security.

Prosecutors argued that the publication of the classified material, including secret battleground reports from Iraq and Afghanistan, Guantánamo prisoner files and diplomatic cables, indiscriminately leaked by Manning, helped the United States' enemies because members of al-Qaeda could read the documents on the internet.

A military prosecutor noted in court that the material published by WikiLeaks was found in the Pakistani hideout where Osama bin Laden was killed, and had been used in al-Qaeda propaganda. The prosecution argued that this was not an ordinary journalistic leak, as WikiLeaks was run by “information anarchists”.

This week Manning was acquitted by a military judge of aiding the enemy, the most serious charge against him relating to the biggest leak of information in US intelligence history. That could have put him in prison for life without the possibility of parole. He still faces 136 years in jail on 20 other charges on which he was found guilty. Manning, who has been detained since 2010, won’t know his sentence until the end of this month.

Crackdown
A hero and whistle-blower on war crimes to his defenders and an anarchist and publicity-hungry traitor to the US government, Manning is the latest leaker to be convicted in an intensive crackdown by the Obama administration on individuals who disclose secrets they believe the public should know about.

In a country whose government purports to uphold a constitutional right to freedom of speech and a free press, the growing list of prosecutions of those who have revealed classified information shows the efforts to deter others from spilling more secrets. Civil libertarians argue that the cases damage investigative journalism and the capacity of a democracy to hold government accountable.

While one leaker faces decades in prison, the US continues its attempt to capture another, the former intelligence contractor Edward Snowden, whose leaks to the Guardian and the Washington Post newspapers have exposed sweeping National Security Agency surveillance of telephone calls made by millions of Americans and the emails, web browsing and internet searches of millions more people outside the US.

On Thursday the 29-year-old leaker, who is wanted on espionage charges, won a temporary respite in his efforts to elude capture. He secured year-long refugee status from Russia, which has allowed him to leave Sheremetyevo Airport, in Moscow. He was holed up in the airport for a month after the US revoked his passport, thus preventing him travelling to Venezuela, Nicaragua or Bolivia, which also offered asylum.

Others have not managed to escape the administration's anti-leaker crusade. A former CIA officer, John Kiriakou, who spoke out against the George W Bush administration's use of torture on terrorism suspects in 2007, was sentenced to 30 months in prison in January for disclosing the name of a covert agent to a freelance writer. The conviction was the first time a CIA officer was jailed for disclosing secret information to a journalist.

A former NSA executive, Thomas Drake, was charged under the Espionage Act, a law enacted during the first World War to prosecute spies, for leaking information to the Baltimore Sun, but the US department of justice dropped the charge for a guilty plea on a minor misdemeanour. Drake served no prison time.

Drake and two other NSA veterans, William Binney and J Kirk Wiebe, have since spoken about how they tried to raise concerns with their superiors, congressional oversight committees and, eventually, the media about surveillance, as revealed by Snowden, that they believed was unconstitutional and illegal.

A court ruling last month was seen as a further blow to press freedom. A Virginia appeals court found that the first-amendment right to a free press doesn’t protect reporters who receive unauthorised leaks from being forced to testify against those suspected of leaking information to them.

James Risen, an author and New York Times reporter, was ordered to testify in the criminal trial of the former CIA analyst Jeffrey Sterling, who has been charged with leaking classified information to him. The reporter has been subpoenaed three times since his book State of War: The Secret History of the CIA and the Bush Administration was published, in 2008, in a dogged pursuit of one of his alleged sources.

A reporter for Fox News, James Rosen, has been named as a co-conspirator in an espionage case against Stephen J Kim, an arms expert, over an article published in 2009 about how intelligence officials expected North Korea to respond to a UN resolution on the country's missile testing. Earlier this year federal investigators secretly seized the phone records of Associated Press journalists as part of a probe into the leaking of a story about the CIA foiling a Yemen-based plot to blow up an aircraft.

The scale of the clampdown on leakers is unprecedented. During Obama's years in the White House at least seven prosecutions on espionage charges have been taken against people who are alleged to have provided information to the media, compared with three prosecutions taken under all previous presidents combined.

“Whether or not one considers each of these people whistle-blowers in the narrow legal sense, they are news sources, and one has to wonder about the motivations and the consequences of criminalising their disclosures in the way that has been done,” says Steven Aftergood, the director of the project on government secrecy at the Federation of American Scientists.

“I think the use of the felony statutes against news-media sources should be an extremely rare event, not a routine one.”

The White House has said the president has sought to strike a balance between protecting national security from damaging leaks and the right of reporters to pursue stories without fear of investigation.

In light of Obama’s aggressive record, that fear is running higher than ever.