Obama Builds Off Legacy of Reagan by Charging Leakers Like Snowden Under Espionage Act

Edward Snowden, the former National Security Agency contractor who provided documents to The Guardian and blew the whistle on secret surveillance programs collecting the personal data and information of innocent Americans and others from around the world.

The complaint, which was filed on June 14 and leaked to the press yesterday, shows he was charged with “unauthorized communication of national defense information” and “willful communication of classified communications intelligence information to an unauthorized person,” which are both felonies under the Espionage Act.

As highlighted previously, Snowden is the eighth person who leaked information to be charged under the Espionage Act under President Barack Obama. The previous seven are: Shamai Leibowitz, Thomas Drake, Stephen Kim, Jeffrey Sterling, Pfc. Bradley Manning, John Kiriakou and James Hitselberger.

Prior to the Obama administration, only three people who leaked information had been charged under the Espionage Act: Daniel Ellsberg, the Pentagon Papers whistleblower, who was charged under President Richard Nixon; Samuel T. Morison, a Navy civilian analyst who was charged under President Ronald Reagan; Lawrence Franklin, a Pentagon analyst charged under President George W. Bush.

Morison leaked photographs of Soviet ships to alert America to what he perceived as a new threat. Franklin leaked information on Iran to the American Israel Public Affairs Committee (AIPAC).

The Morison case is widely considered to be one of the first cases where the Justice Department began to use the Espionage Act to criminalize leaks, even though it was never intended for leakers. [Note: It had been used against dissidents so, perhaps, it wasn’t all that novel to apply it to individuals dissenting against authority by releasing information to the press.]

Ellsberg had been pursued by the Nixon administration. They even pursued Anthony Russo for his involvement in the release. And, as New York Times legal counsel James Goodale has highlighted, the Nixon Administration had a grand jury setup to go after Times reporter Neil Sheehan for his work publishing the Pentagon Papers. But, it was not until Morison’s case that the government began to make arguments around the Espionage Act that have become common under Obama.

New York Times columnist Anthony Lewis wrote in 1985 how the Reagan Administration was using the Morison case “to try to turn the Espionage Act into something the United States has never had: a criminal statute against leaks. And by persuading the trial judge and then the jury, it did create something very much like the British Official Secrets Act.”

He described what Morison had done. He did not spy. He leaked “three photographs taken from a US satellite, of a Soviet aircraft carrier under construction. He sent them to Jane’s Defense Weekly, a British military magazine. He was not paid. He did it, he said, because the carrier was a significant new element in the Soviet fleet—and publication would alert Americans to the threats.” And, for that, he was convicted on October 17, 1985, of two violations of the Espionage Act (as well as two counts of theft of government property).

Lewis understood the significance of the Espionage Act charges and its conviction. He declared in February 1985, “The charge is what makes this case so important for it takes a press leak of the kind that goes on all the time in our government and treats it as “espionage.” If the Reagan prosecutors win on that theory, then ordinary leaking will become a grave crime and the US will have a draconian Official Secrets Act.”

He also wrote:

Obama Builds Off Legacy of Reagan by Charging Leakers Like Snowden Under Espionage Act

Edward Snowden, the former National Security Agency contractor who provided documents to The Guardian and blew the whistle on secret surveillance programs collecting the personal data and information of innocent Americans and others from around the world, has been officially charged.

The complaint, which was filed on June 14 and leaked to the press yesterday, shows he was charged with “unauthorized communication of national defense information” and “willful communication of classified communications intelligence information to an unauthorized person,” which are both felonies under the Espionage Act.

As highlighted previously, Snowden is the eighth person who leaked information to be charged under the Espionage Act under President Barack Obama. The previous seven are: Shamai Leibowitz, Thomas Drake, Stephen Kim, Jeffrey Sterling, Pfc. Bradley Manning, John Kiriakou and James Hitselberger.

Prior to the Obama administration, only three people who leaked information had been charged under the Espionage Act: Daniel Ellsberg, the Pentagon Papers whistleblower, who was charged under President Richard Nixon; Samuel T. Morison, a Navy civilian analyst who was charged under President Ronald Reagan; Lawrence Franklin, a Pentagon analyst charged under President George W. Bush.

Morison leaked photographs of Soviet ships to alert America to what he perceived as a new threat. Franklin leaked information on Iran to the American Israel Public Affairs Committee (AIPAC).

The Morison case is one of the first cases where the Justice Department began to use the Espionage Act to criminalize leaks, even though it was never intended for leakers. [Note: It had been used against dissidents so, perhaps, it wasn’t all that novel to apply it to individuals dissenting against authority by releasing information to the press.]

Ellsberg had been pursued by the Nixon administration. And, as New York Times legal counsel James Goodale highlights in his recent book, Fighting for the Press, the Nixon Administration had a grand jury setup to go after Times reporter Neil Sheehan for his work publishing the Pentagon Papers. But, it was not until Morison’s case that the government began to make arguments around the Espionage Act that have become common under Obama.

New York Times columnist Anthony Lewis wrote in 1985 that the Reagan Administration was using the Morison case “to try to turn the Espionage Act into something the United States has never had: a criminal statute against leaks. And by persuading the trial judge and then the jury, it did create something very much like the British Official Secrets Act.”

He described what Morison had done. He did not spy. He leaked “three photographs taken from a US satellite, of a Soviet aircraft carrier under construction. He sent them to Jane’s Defense Weekly, a British military magazine. He was not paid. He did it, he said, because the carrier was a significant new element in the Soviet fleet—and publication would alert Americans to the threats.” And, for that, he was convicted on October 17, 1985, of two violations of the Espionage Act (as well as two counts of theft of government property).

Lewis understood the significance of the Espionage Act charges and its conviction. He declared in February 1985, “The charge is what makes this case so important for it takes a press leak of the kind that goes on all the time in our government and treats it as ‘espionage.’ If the Reagan prosecutors win on that theory, then ordinary leaking will become a grave crime and the US will have a draconian Official Secrets Act.” (more…)