Eric Holder, attorney general under President Barack Obama, has prosecuted more government officials for alleged leaks under the World War I-era Espionage Act than all his predecessors combined, including law-and-order Republicans John Mitchell, Edwin Meese and John Ashcroft.
The indictments of six individuals under that spy law have drawn criticism from those who say the president’s crackdown chills dissent, curtails a free press and betrays Obama’s initial promise to “usher in a new era of open government.”
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“There’s a problem with prosecutions that don’t distinguish between bad people — people who spy for other governments, people who sell secrets for money — and people who are accused of having conversations and discussions,” said Abbe Lowell, attorney for Stephen J. Kim, an intelligence analyst charged under the Act.
Lowell, the Washington defense lawyer who has counted as his clients the likes of Jack Abramoff, the former Washington lobbyist, and political figures including former presidential candidate John Edwards, said the Obama administration is using the Espionage Act “like a club” against government employees accused of leaks.
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The prosecutions, which Obama and the Justice Department have defended on national security grounds, mean that government officials who speak to the media can face financial and professional ruin as they spend years fighting for their reputations, and, in some cases, their freedom.
‘Sense of Shame’
Kim’s troubles began in September 2009 when Federal Bureau of Investigation agents appeared at the State Department, where he worked as a contract analyst specializing in North Korea. He was questioned about contacts with a reporter about North Korea’s nuclear weapons program. Eleven months later, Kim was indicted by a grand jury on counts of disclosing classified information and making false statements.
“To be accused of doing something against or harmful to U.S. national interest is something I can’t comprehend,” said Kim, 45, who has pleaded not guilty and faces as many as 15 years in jail if convicted. “Your reputation is shot and there is such a sense of shame brought on the family.”
Kim is one of five individuals who have been pursued by Obama’s Justice Department in connection with alleged leaks of classified information to the news media. The Defense Department is pursuing a sixth case against Bradley Manning, the U.S. Army private accused of sending documents to the WikiLeaks website.
The Justice Department said that there are established avenues for government employees to follow if they want to report misdeeds. The agency “does not target whistle-blowers in leak cases or any other cases,” Dean Boyd, a department spokesman, said.
“An individual in authorized possession of classified information has no authority or right to unilaterally determine that it should be made public or otherwise disclose it,” he said.
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On Oct. 10, Obama issued a policy directive to executive- branch agencies extending whistle-blower protections to national security and intelligence employees, who weren’t included in the Whistleblower Protection Enhancement Act that passed the U.S. House last month and awaits Senate approval.
While the directive seeks to protect those workers from retaliation if they report waste, fraud or abuse through official channels, it “doesn’t include media representatives within the universe of people to whom the whistle-blower can make the disclosure,” said Elizabeth Goitein, co-director of the Brennan Center of Justice’s Liberty and National Security Program. That still gives Obama the option of pursuing prosecutions of intelligence employees who talk to the press, she said.
“The directive is definitely an important step in the right direction, but even if it’s faithfully enforced — and that’s an open question — it may not always be enough,” Goitein said. “A whistle-blower’s report could go to the very people who are responsible for the misconduct.”
Lisa O. Monaco, the top Justice Department official in its National Security Division, told lawmakers earlier this year that leaks are damaging to intelligence operations and the country’s national security as a whole.
“Virtually all elements of the intelligence community have suffered severe losses due to leaks,” Monaco said in February testimony in front of the Senate Intelligence Committee.
Still, even as the administration pursues its unprecedented crackdown on government leaks it does not condone, the prosecutions have fallen short of the wishes of lawmakers and other national security experts, who point to books and articles that have shed new light on classified operations.
The administration stands accused of anonymously releasing sensitive information to suit its own political purposes. The disclosure of operational details of the raid that led to the death of Osama bin Laden and attempts to disrupt Iran’s nuclear weapons program triggered the announcement in June of a Justice Department probe of those leaks.
That move was criticized by Republican presidential nominee Mitt Romney, who called for an independent investigation.
“Obama appointees, who are accountable to President Obama’s attorney general, should not be responsible for investigating leaks coming from the Obama White House,” Romney said in a speech at national convention of the Veterans of Foreign Wars in July. “Who in the White House betrayed these secrets?”
Administration officials are far less forgiving of those who conduct unauthorized contacts with the press.
“They want to destroy you personally,” said Thomas Drake, a senior National Security Agency employee prosecuted in 2010 by Obama’s Justice Department under the Espionage Act. The message to government workers seeking to expose waste, fraud and abuse is “see nothing, say nothing, don’t speak out — otherwise we’ll hammer you,” he said.
Drake faced 10 felony counts in connection to an allegation that he shared classified information with a reporter. He was linked to a report in the Baltimore Sun about inefficiencies and cost over-runs in an NSA surveillance program that was later abandoned.
The case against Drake collapsed last year before trial after he agreed to plead guilty to a misdemeanor, and the government dropped the more serious charges that could have sent him to jail for 35 years.
The prosecution was meant to “make me an object lesson and to send the most chilling message,” said Drake, who is adamant that he never handed over any classified information. “I was essentially bankrupted, blacklisted and blackballed. I was turned into damaged goods.”
Cases such as Drake’s indicate that Obama doesn’t “see the world of national security as being part of open government,” said Danielle Brian, executive director of the Project on Government Oversight, a Washington-based federal watchdog group. “To me, that’s the most important part that needs an open government ethos foisted upon it.”
Monaco, who is an assistant attorney general, told lawmakers this year that advances in technology play a role in the uptick in prosecutions. Where investigators used to struggle to track down the origins of leaks, they now are able to check phone records, e-mail trails and even “employee physical access or badging records” to trace disclosures, she said.
Intelligence agencies are required to report any unauthorized disclosures to the Justice Department, Monaco said. From there, the department, along with the reporting agency, decide whether to open an investigation.
The South Korea-born Kim emigrated to the U.S. with his parents and sister in 1976. He spoke little English when he arrived and was enrolled in third grade. A naturalized citizen and graduate of Georgetown University’s School of Foreign Service, Kim made a brief stop on Wall Street before heading to Harvard University to earn a Master’s degree in National Security. He then went to Yale, where at age 31, he earned his Ph.D in diplomatic and military history.
“I decided to forgo a lot of other career opportunities to work in the government,” Kim said.
Kim took a role as an analyst on a range of East Asian matters, with a specialty in North Korea. He briefed many high ranking officials, including then-Vice President Dick Cheney.
In June 2009, Kim is alleged to have discussed how North Korea might react to a United Nations resolution condemning its nuclear tests with reporter James Rosen of Fox News, according to a person familiar with the case. The relationship between Kim and Rosen began when the State Department’s press office arranged a briefing at the request of Kim’s superiors.
Prosecutors say that when asked about his communications with the press by the FBI in their initial meeting in September 2009, Kim lied about a continued relationship with the reporter. That same day, he was told his State Department contract had been terminated for budget reasons, according to court filings.
The government alleges Kim’s contacts with Rosen included “efforts to conceal his relationship with the reporter and the secretive nature of their communications speaks volumes about the defendant’s knowledge of who was, and who was not, entitled to receive” information.
Kim declined to discuss specifics of his case in the interview in his lawyer’s office in Washington. His efforts to get the charges dismissed were rejected last year by U.S. District Judge Colleen Kollar-Kotelly, who in denying the motions to dismiss said that the alleged leak involved a report with a classification level that “could be expected to cause grave damage to the national security” if disclosed.
Cases such as Kim’s, which can be drawn out for years as the prosecution and defense teams work with sensitive materials through dozens of filings and status reports can cost upwards of $1 million, according to Jesselyn Radack, a lawyer with the Government Accountability Project who has defended two individuals prosecuted under the law.
Kim said his parents sold their home in South Korea to help pay for his defense. His sister has also pitched in and a former college roommate has created a website to publicize his case and raise funds.
Radack said the Obama administration crackdown is part of an effort to shut down investigations into the workings of the national-security apparatus.
“At first I thought these Espionage Act prosecutions were to curry favor with the national security and intelligence establishments, which saw Obama as weak when he entered office,” Radack said. “It became abundantly clear the more people were indicted, when you read their indictments, that this was a way to create really terrible precedent for ultimately going after journalists.”
The Justice Department disputes the claim that it would use the law to go after journalists. Monaco, in her testimony this year, pointed to department regulations that limit investigators’ access to reporters, even when doing so “makes these investigations more challenging.”
Still, those rules haven’t completely insulated journalists. James Risen, the Pulitzer Prize winning writer for the New York Times, was subpoenaed to testify at the trial of Jeffrey Sterling, a former CIA officer indicted under the law for allegedly disclosing information about Iran’s nuclear program.
Risen and his lawyers have fought the subpoena, arguing in February that the subpoena threatens the role of journalism in serving the public interest.
The Espionage Act, signed by President Woodrow Wilson in 1917, has until Obama took office been primarily deployed against some of the most damaging double agents in the U.S. history. Those include Aldrich Ames, a Central Intelligence Agency operative convicted in 1994 for spying for Russia, and Robert Hanssen, a former FBI agent convicted in 2001 of similar offenses. Both men are serving life sentences without parole in high-security federal prisons.
The law also prohibits the unlawful disclosure of national defense information to those not entitled to receive it — a provision that defense lawyers say is being abused by Obama’s prosecutors.
“I campaigned for him, contributed to him, voted for him and believed him,” said Radack of Obama. “For someone who pledged to protect and defend whistle-blowers, he certainly has not even remained neutral, he’s affirmatively set us back really, really far.”
The Justice Department has used the disclosure provision to pursue five cases against government officials for allegedly sharing classified information with members of the news media. In 2009, former FBI linguist Shamai Leibowitz was indicted for handing over transcripts of government wiretaps of the Israeli embassy in Washington to a blogger. He pleaded guilty and was sentenced to 20 months in prison.
Obama also continued the George W. Bush administration’s investigation of Drake, the NSA employee.
“It’s important to understand what’s going on in this country — the government has criminalized whistle-blowing,” said Drake, 55, who lost his $155,000-a-year NSA job in 2008. He now works as a wage-grade employee at an Apple store in a Washington suburb to support his family.
The Justice Department also continues to pursue Sterling, the former CIA officer, and John Kiriakou, an intelligence official who wrote a book detailing the illegal use of waterboarding by the CIA. Kiriakou is also accused of disclosing the identity of a CIA analyst to reporters.
“The two biggest scandals of the Bush administration in terms of constitutional violations was the use of torture, and renditions, and secret surveillance — and the only two people to date who have been charged in connection with those scandals are myself and John Kiriakou,” Drake said. “That should tell you something about how hard the Obama administration is going to protect those programs.”
The Espionage Act charges against Drake were dropped last year, with the defendant accepting a minor penalty for exceeding the authorized use of a computer. The Justice Department prosecutors were excoriated by U.S. District Judge Richard Bennett for the more than two-year delay between the first search of Drake’s home and the indictment, as well as the decision to drop the most serious charges days before the case was scheduled to go to trial.
“I find it extraordinary in this case for an individual’s home to be searched in November of 2008, for the government to have no explanation for a two-year delay, not a two and a half year delay, for him to be indicted in April of 2010, and then over a year later, on the eve of the trial, in June of 2011, the government says, whoops, we dropped the whole case,” Bennett said at Drake’s July 2011 sentencing, according to a court transcript.
Manning, the analyst who allegedly disclosed hundreds of thousands of confidential government documents to WikiLeaks, faces court-martial under the espionage law.
The president’s openness pledge is also undermined by a recent Bloomberg News analysis, which showed that 19 of 20 cabinet-level agencies disobeyed the Freedom of Information Act requiring the disclosure of public documents. In all, just eight of the 57 federal agencies met Bloomberg’s FOIA requests for top officials’ travel costs within the 20-day window required by the Act.
The White House disputes the notion that the president hasn’t kept his promise of transparency.
“While creating a more open government requires sustained effort, our continued efforts seek to promote accountability, provide people with useful information and harness the dispersed knowledge of the American people,” White House spokesman Eric Schultz said in an e-mailed statement.
In March last year, Obama met with five open-government advocates in the Oval Office. In the session, Brian of the Project on Government Oversight told Obama that the leak prosecutions were undermining his legacy.
“The president shifted in his seat and leaned forward. He said he wanted to engage on this topic because this may be where we have some differences,” Brian wrote in a March 29, 2011 POGO blog post. “He said he doesn’t want to protect the people who leak to the media war plans that could impact the troops.”
Today, Kim rarely sees his South Korean-born wife, who spends time largely in her native country with her parents. Without any security clearances, Kim is restricted to working on non-classified projects for Lawrence Livermore National Laboratory. He said that most of his colleagues have abandoned him, refusing to return phone calls or letting him know that for professional reasons they’d rather he not pick up the phone. The case has left him isolated personally and professionally.
‘Like a Disease’
“I’m like a disease,” Kim said.
Because of preliminary legal wrangling, Kim’s case is unlikely to make it to court before the end of the year, according to a joint status report filed on Aug. 31.
Sitting in his lawyer’s office a few blocks away from the State Department where he once worked, Kim acknowledges that while he’s had bad days in the past 16 months, he has recognized that in the wake of his personal and financial woes, he may be the only person that can keep himself afloat.
“There was one time at home, one time, when I screamed out loud, when I yelled and I cried. The resentment was so deep,” Kim said. “But ever since then I haven’t shed another tear because if I break down, everything breaks down.”
The Kim case is U.S. v. Kim, 10cr00225, U.S. District Court for the District of Columbia (Washington).