In 1984, the Reagan administration charged Samuel Loring Morison, an intelligence analyst with the Naval Intelligence Support Center, with violating the Espionage Act for leaking photographs of new Soviet nuclear aircraft carriers to Jane’s Defence Weekly. Morison claimed he was trying to alert the public to a new Soviet threat, but the administration prosecuted him anyway and in December 1985 Morison was convicted and sentenced to two years in jail.
In 1998, the late Senator Patrick Moynihan wrote President Bill Clinton recommending that he grant Morison a pardon. “The Espionage Act has always been used to prosecute spies, those passing information to foreign powers,” Moynihan wrote. “What is remarkable [in this case] is not the crime, but that he is the only one convicted of an activity which has become a routine aspect of government life: leaking information to the press in order to bring pressure to bear on a policy question.” Moynihan warned that the “prosecution of leakers could imperil an entire administration. If ever there were to be widespread action taken, it would significantly hamper the ability of the press to function.” Clinton pardoned Morison on January 20, 2001, his last day in office.
The Obama administration has not heeded Moynihan’s advice. It has engaged in gross overkill in punishing leaks about its own foreign policy and that of the George W. Bush administration. The administration has undertaken twice as many leak prosecutions as all previous presidential administrations combined. It has repeatedly stepped over the limit that separates leakers from the outlets that publish their leaks, investigating Associated Press and Fox News reporters and attempting to force a New York Times reporter to reveal his sources.
They have prosecuted Bradley Manning, Edward Snowden and other leakers on the same grounds used to prosecute spies. As Reagan did with Morison, they have invoked the Espionage Act, which bans the disclosure of classified information “with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation." Manning has also been charged under the military code with “aiding or attempting to aid the enemy,” a violation punishable by execution, and he was held for nine months at a Marine prison in conditions that verged on torture.
This perfervid campaign against leaks has occurred in the aftermath of two disastrous and highly unpopular wars and a government surveillance program that overstepped its Constitutional bounds. That doesn’t mean that the leaks were legal, or that the leakers didn’t deserve to be prosecuted, but it does mean that in assessing the charges to bring—and particularly those related to espionage or aiding the enemy—the Obama administration should have taken the context and content of the leaks into account. Instead, it has treated traditional whistleblowers as spies or traitors.
There is a fairly clear difference between spies and whistleblowers. Spies disclose their secrets directly and exclusively to a foreign power, often one with which the United States has hostile relations. When employees of the government or military circulate a classified document without authorization to the media, they are leaking. If the leakers do so for what they claim to be a higher good, rather than for money or simple attention, they are performing an act of civil disobedience. Whether that act is justified depends on whether it is judged to contribute to a higher good. If it is judged that way, then the leaker would appear to deserve leniency at the hands of the government. And with foreign policy, how it is judged will depend on the historical context of their actions.
National security leaks played a prominent role in American foreign policy during the Vietnam War era. Daniel Ellsberg’s release of the Pentagon Papers to the New York Times and Washington Post helped fuel anti-war sentiment in the United States. In 1974, Seymour Hersh published a story in The New York Times, based on leaks, detailing covert CIA attempts to overthrow governments and assassinate foreign leaders. That led to Congressional investigations into government spying. The government prosecuted Ellsberg under the Espionage Act. Ellsberg could have been convicted at least of lesser offenses, but the judge, apprised of the Nixon administration’s illegal wiretapping, threw out the whole case. In retrospect, Ellsberg is widely deemed—and deservedly so—to have acted heroically, having put himself in jeopardy to expose an unjust war.
The current controversy over leaks spans the period after the September 11, 2001 terrorist attacks. In the immediate aftermath, the Bush administration invaded Afghanistan to overthrow its government, which continued to harbor al Qaeda, and it strengthened intelligence gathering on foreign terrorist plots against the United States. These actions were widely supported and were justified. But in March 2003, the administration invaded Iraq under false pretenses and contrary to international law, which forbids “preventive” wars. The war itself turned into a foreign policy disaster comparable to the Vietnam War. At the same time, the administration continued to expand its intelligence activities to include the warrantless surveillance of American citizens. As the public learned largely through leaks that the administration had misled it about the war, that spurred opposition to the war and to other measures that Bush took as part of his war on terror.
Under Obama, the United States remained in Iraq for another four years and escalated its operations in Afghanistan, even though al Qaeda had already been driven out of the country. With the cooperation of a secret and pliant foreign intelligence court, the administration also expanded the warrantless surveillance of American citizens and businesses. The administration’s actions violated the Fourth Amendment of the Constitution against warrantless searches. James Clapper, the official in charge of National Intelligence, deceived Congress in his testimony about these activities.
There are people who still defend the invasion of Iraq, and there are even more who would defend Obama’s escalation of the war in Afghanistan, and the warrantless surveillance of American citizens. But what can be said is this: These actions remain subject to debate, and in so far as they are, Americans have acquired significant and essential knowledge with which to judge them from unauthorized leaks. These leaks have spurred a public discussion of foreign policy that might otherwise have been suppressed by secrecy.
Manning claimed that he leaked information about the wars in Iraq and in Afghanistan to “spark a domestic debate on the role of the military and our foreign policy.” His leaks certainly did so. Revelations included American troops killing civilians, including women and children, and then calling in an airstrike to destroy evidence; the video of an American Apache helicopter gunship shooting civilians, including two Reuters reporters; American military authorities failing to investigate reports of torture and murder by Iraqi police; and a “black unit” in Afghanistan tasked to perform extrajudicial assassinations of Taliban sympathizers that killed as many as 373 civilians. Manning’s leaks also revealed American surveillance—contrary to the original UN charter—of the UN’s top leadership.
Snowden’s leaks have sparked a needed debate about government surveillance. They revealed a massive spying campaign by the National Security Administration (NSA) on Americans and also on foreign individuals and businesses that were not directly implicated in any terrorist threat. The NSA reportedly bugged the European Union mission in Washington D.C. Like Manning, Snowden claimed to be acting in his country—and the world’s—interest. "I understand that I will be made to suffer for my actions," Snowden wrote, but "I will be satisfied if the federation of secret law, unequal pardon and irresistible executive powers that rule the world that I love are revealed even for an instant."
In all these cases of leaks, a government prosecutor could argue that the revelations helped America’s adversaries. Any revelation of American government misconduct is a boost to the country’s adversaries. The publication of the Pentagon Papers or revelations about the My Lai Massacre certainly helped the cause of the North Vietnamese and their allies during the Vietnam War. Reports of CIA attempts to assassinate Cuba’s Fidel Castro certainly strengthened the Cuban Communist’s cause. But to acknowledge that is to recognize how grossly the criterion of “aiding the enemy” is being misused by Obama, Holder, and the military. The question isn’t if a leak unintentionally benefits adversaries (declared or undeclared), but whether, in the circumstance, it has benefited American democracy.
Some amount of secrecy is justified. The Roosevelt administration was certainly justified in concealing its ability to decode Japanese and German messages—and the leak in 1942 to the Chicago Tribune of America’s ability to decode Japanese messages was patently unjustified. But Manning and Snowden’s leaks—as well as those earlier of Thomas Drake about the NSA’s warrantless surveillance or John Kiriakou of CIA’s use of torture—revealed the underside of questionable foreign policy activities about which the public had either been kept in the dark or deceived. These leaks strengthened American democracy. They were justifiable acts of civil disobedience.
But Obama, who opposed the invasion of Iraq and criticized the surveillance state that the war on terror had created, chose to prosecute these individuals, while deciding not to prosecute Bush administration officials who promoted the torture of prisoners. Obama also condoned the brutal treatment of Manning, who during nine months in the Marine brig, before he was convicted of any crime, was kept in solitary confinement, forced to sleep naked with the lights on and without covers, and made to sit upright all day in his cell without being allowed to rest or do pushups. At a press conference in March 2011, Obama said that Manning’s treatment was “appropriate and … meeting our basic standards.” When State Department spokesman P.J. Crowley, who served 26 years in the air force, condemned Manning’s treatment as “ridiculous and counter-productive and stupid,” Obama and Secretary of State Hillary Clinton accepted Crowley’s resignation.
There is nothing, of course, that can done to temper Manning’s prosecution, which is in the military’s hands.The military judge—bearing out Georges Clemenceau’s quip that “military justice is to justice what military music is to music”—ruled that Manning can be charged with “aiding the enemy,” based on the fact that some of the files Manning gave to Wikileaks were found on Osama bin Laden’s computer. The administration is also committed to charging Snowden under the Espionage Act.
But if Obama comes to understand that these men are not traitors or spies, but whistleblowers who acted in what they believed was the country’s best interest—and that what they did was in the country’s best interest—he has a precedent he can follow in dealing with them. He can do for the whistleblowers he has prosecuted what Clinton did for Samuel Loring Morison. Snowden may be out of reach, and if not, should be tried under lesser charges, but a midnight pardon for Manning, who has already suffered during three years of imprisonment, doesn’t undermine the law; it makes an exception for certain individuals whose actions are ultimately excusable because of a higher law. Nothing less from Obama will remove the stain of injustice that has sullied his administration.