The selective prosecution of leaks threatens democracy

One of the grossest hypocrisies of Washington officialdom is the willingness to denounce leaks of some classified information and to countenance leaks of other classified information. But the gap between indignant pretense and standard practice has widened into a chasm in recent years, with Barack Obama’s administration prosecuting leakers in record numbers while protecting its own. Selective prosecution of leaks in the name of national security has never been more extreme.

This duplicity is on full display as the long-delayed trial of former Central Intelligence Agency officer Jeffrey Sterling, charged with seven counts under the Espionage Act and three related charges, began today in a U.S. District Court not far from the agency’s headquarters in Langley, Virginia. Prosecutors say Sterling was the source for a chapter in the 2006 book “State of War” by New York Times reporter James Risen, revealing a CIA operation that gave flawed nuclear weapon blueprints to Iran in 2000.

The start of the trial comes a few days after front-page stories reported that Attorney General Eric Holder has been dragging his feet after the FBI and Justice Department prosecutors recommended that former CIA Director David Petraeus be indicted for sharing classified information with his biographer-turned-lover Paula Broadwell. Some leaders, such as Senate Intelligence Committee Chairwoman Dianne Feinstein, insist that he not be prosecuted even if he did break the law. “This man has suffered enough in my view,” she said. She has not, of course, taken such a forgiving view of National Security Agency whistleblower Edward Snowden.

Few prominent lawmakers have ever bothered to draw attention to such glaring contradictions. An exception came when Sen. Daniel Patrick Moynihan observed that the secrecy emperor had no clothes. In a September 1998 letter to President Bill Clinton, the senior senator from New York pointed out that “leaking information to the press in order to bring pressure to bear on a policy question” had become “a routine aspect of government life.” Moynihan added this zinger: “An evenhanded prosecution of leakers could imperil an entire administration.”

Then as now, with upper reaches of the executive branch often leaking like a sieve, evenhanded prosecution of leakers was out of the question. But his letter had a more limited purpose: gaining a pardon for a former U.S. Navy intelligence analyst, Samuel L. Morison, who had served a two-year prison sentence for giving classified photos of a Soviet nuclear-powered aircraft carrier to a British magazine. Moynihan wrote that “the selective action against Mr. Morison appears capricious at best.”

Clinton ultimately responded by pardoning Morison on his last day as president. New York Times columnist Anthony Lewis called the pardon “an act of particular courage” and noted that Morison was “the only government official ever convicted for giving classified information to the press.” A prior prosecution along that line failed in 1973 when a judge cited “improper government conduct” and dismissed all charges against Daniel Ellsberg and Anthony Russo for leaking the Pentagon Papers to the press.

When Obama’s presidency began, the Espionage Act had been invoked during the previous 92 years in just three cases that involved giving classified information to news media. (In addition to the Pentagon Papers and Morison prosecutions, the law was used in 2005 against Pentagon employee Lawrence Franklin and a pair of officials from the American Israel Public Affairs Committee.) The Obama administration seized on the 1917 law, using it to file charges against seven people who had leaked to news media. None of those seven had anything to do with espionage.

For four years, the Obama Justice Department has been on record with the assertion that individuals who provide classified information to the press are apt to be worse than spies for a foreign power. In January 2011 the Justice Department filed a legal brief declaring that a whistleblower’s alleged disclosures “may be viewed as more pernicious than the typical espionage case where a spy sells classified information for money.”

The government made that disturbing claim in the Sterling case. The timing of the trial could hardly be much worse for the U.S. government. Released just a few weeks ago, the Senate Intelligence Committee report on torture shows that the CIA press office leaked classified information to preferred journalists in efforts to make the agency look good. Naturally enough, the CIA did not follow up on its illegal leaks by filing a crimes report on itself.

What’s more, the last two CIA directors to leave the job — Petraeus and Leon Panetta — have eluded prosecution despite solid evidence that they leaked classified information. Panetta, whom Petraeus replaced, allegedly shared top secret information about the raid that killed Osama bin Laden with “Zero Dark Thirty” filmmaker Mark Boal. There is no indication that Panetta is in any danger of prosecution.

Yet the government is going all out to imprison Sterling as a former CIA employee who allegedly leaked classified information that made the agency look bad. The stench of selective prosecution, though hard to miss, is routine. Few in government dare challenge or even question the vastly different treatment of authorized and unauthorized disclosures of classified information. The tacit rationales for selective prosecution end up ceding power to authorities to self-authorize the violations of regulations that others go to prison for violating.

Selective prosecution also involves another great threat to democratic principles. For the informed consent of the governed, unauthorized leaks are usually much more in the public interest than the leaks approved from on high. The classified material that policymakers choose to dole out to the press often turns out to be deceptive — especially because other classified information that would provide a fuller picture has been kept from public view. High-ranking officials are all too eager to prosecute and imprison leakers for revealing policies that cannot withstand the light of exposure.

Maybe Moynihan was correct when he wrote that “an evenhanded prosecution of leakers could imperil an entire administration.” But the United States is supposed to be a nation of laws. The government’s insistence on selective prosecution of leakers could imperil the basis for democracy.