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Bulletin: Winter/Spring 2011, Volume 16, Number 2

Open Government Advocates Criticize Obama’s Prosecution of Leakers

Leaks of Information to News Media Raise Fundamental Legal Questions

The federal government’s prosecutions of leakers of government information have stirred advocates of free speech and open government to criticize the Obama administration for promising transparency while chilling freedom of speech.

In roughly 28 months since President Barack Obama took office Jan. 20, 2009, the federal government has filed criminal charges against five people for the unauthorized distribution of classified national security information. The five cases have involved leaks from the Central Intelligence Agency (CIA), U.S. military, U.S. State Department, and National Security Agency (NSA) to the media. In two of the cases, the government issued subpoenas to reporters or media companies as part of their investigations.

In a March 7, 2011 article, Politico.com reporter Josh Gerstein called the Obama administration’s legal campaign against leakers “a sharp break from recent history,” observing that the U.S. government brought only three such cases during the 40 years prior to the present administration. Gerstein reported that the administration has defended the prosecutions, insisting that they have arisen out of a duty to protect the nation’s most sensitive secrets from reckless disclosure, and pointing out that other, more proper channels exist for government employees to report malfeasance. However, “legal experts and good-government advocates say the hard-line approach to leaks has a chilling effect on whistleblowers, who fear harsh legal reprisals if they dare to speak up,” Gerstein wrote.

Jesselyn Radack, Homeland Security and Human Rights Director for the Government Accountability Project and a former Justice Department attorney, told Gerstein the Obama policy is “a disturbing one particularly from a president who got elected pledging openness and transparency—and someone who also got elected thanks to a lot of [Bush-era] scandals that were revealed by whistleblowers.”

On Jan. 21, 2009, his second day in office, Obama released a memo that said that under his administration there would be a “presumption of disclosure” for all federal Freedom of Information Act requests, reversing a Bush administration directive that called for withholding any requested documents if there was a “sound legal basis” for doing so. Obama said in a speech the same day that “starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information but those who seek to make it known.” (For more on the Obama open government promises, see “Obama Promises More Government Openness; Skeptics Demand Immediate Results” in the Winter 2009 issue of the Silha Bulletin, and “Obama’s Policies Promote Openness; Some Secrecy Persists” in the Spring 2009 issue.)

Salon.com blogger Glenn Greenwald contrasted the administration’s aggressive pursuit of leaks with Obama’s promises to promote transparency. Greenwald observed that Obama’s agenda as president-elect included plans to “protect whistleblowers,” stating that “such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled.” (Obama’s Ethics Agenda is available online at http://change.gov/agenda/ethics_agenda/). Greenwald said “those pretty words have given way to the most aggressive crusade to expose, punish and silence ‘courageous and patriotic’ whistleblowers by any President in decades.”

Risen Subpoenaed, Investigated in CIA Leak Case

The investigation and indictment of former CIA officer Jeffrey Sterling has made New York Times reporter James Risen the subject of two subpoenas and a government investigation that swept up some of his personal financial and travel records without his knowledge or permission.

On Jan. 6, 2011, Sterling was arrested and charged with six counts of unauthorized disclosure of national defense information, and one count each of unlawful retention of national defense information, mail fraud, unauthorized conveyance of government property, and obstruction of justice. Sterling’s indictment, which was filed under seal Dec. 22, 2010, did not specify the information he is alleged to have released, only saying that it related to his assignment to a “classified clandestine operational program designed to conduct intelligence activities related to the weapons capabilities of certain countries,” and as an “operations officer assigned to handle a human asset associated with that program.” According to the indictment, Sterling’s unauthorized disclosure of national defense information violates the Espionage Act, 18 U.S.C. § 793, which criminalizes the unauthorized retention or disclosure of “national defense information” or “classified information.”

The indictment alleges that Sterling “engaged in a scheme to disclose information … first, in connection with a possible newspaper story to be written by an author employed by a national newspaper in early 2003 and, later, in connection with a book published by the author in January 2006.” The indictment does not name the author, but its details make clear that it is Risen, who covers national security issues and whose 2006 book “State of War: The Secret History of the C.I.A. and the Bush Administration” described a CIA attempt to disrupt Iranian nuclear research as an “espionage disaster.” The indictment alleges that Sterling released the information in retaliation for his 2002 firing.

Risen, who won a Pulitzer Prize in 2006 for his reporting on the Bush administration’s warrantless wiretapping program, has been the subject of two federal subpoenas seeking his sources for the Iran chapter of “State of War.” According to The New York Times, in January 2008 the Bush administration obtained a subpoena seeking his cooperation in the Sterling investigation, but Risen fought the government’s efforts and the subpoena expired in summer 2009 without his having to testify. On April 28, 2010, The New York Times reported that a second subpoena had been issued by the Obama administration. At that time, Risen’s attorney, Joel Kurtzberg, said Risen intended to fight the subpoena and “honor his commitment of confidentiality to his source or sources.” A Jan. 6, 2011 New York Times story reported that a federal judge in the Eastern District of Virginia quashed the second subpoena in November 2010. (For more on the 2008 subpoena, see “Reporters Fight Federal Subpoenas” in the Winter 2008 Silha Bulletin.)

It is likely that both subpoenas were personally approved by U.S. attorney generals—Michael Mukasey under Bush in 2008 and Eric Holder under Obama in 2010—because of guidelines that require explicit permission from the Attorney General for the Justice Department to issue a subpoena to a member of the news media or to issue a subpoena for a reporter’s “telephone toll records.” The Attorney General guidelines are published at 28 C.F.R. § 50.10. Although not formally enforceable by a court, the guidelines have been seen as an important protection for journalists because they require federal officials to negotiate with a reporter before a subpoena is requested, as well as to exhaust other sources of information and to provide “reasonable grounds” that the information is “essential” to resolve a disputed issue or solve a crime. The guidelines state that “the use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information.” But they also state that the policy “does not apply to demands for purely commercial or financial information unrelated to the news gathering function.” (For more on the Attorney General Guidelines, see the “Silha Bulletin Guide to Journalist’s Privilege” in the Spring 2008 issue of the Silha Bulletin.)

Court filings in the Sterling case show that although the subpoenas directly to Risen were unsuccessful, the government used other ways to compile information on the reporter. A motion Sterling filed with the Eastern District of Virginia on Feb. 24, 2011 stated that, as part of its evidence supporting the case against Sterling, the government “provided … various telephone records showing calls made by … Risen” as well as “credit card and bank records and certain records of his airline travel.” In a footnote in a March 10 filing with the court, federal prosecutors wrote that they did not subpoena Risen’s phone records, which would have required notification to Risen under the attorney general guidelines. The filing did not address the other records, which do not require notification under the guidelines. Moreover, they argued that questions about the acquisition of Risen’s information was not “germane” to the issue before the court.

In an interview for a Feb. 24, 2011 story for Politico.com, Jane Kirtley, director of the Silha Center and professor of media ethics and law at the University of Minnesota told Gerstein that “third-party subpoenas” like the one issued for Risen’s bank and credit card records “are really, really invidious.” Kirtley explained that journalists often are not notified when the government asks telephone and Internet companies or banks for their records. “Even if it is targeted, even if they’re trying to just look at the relevant stuff, they’re inevitably going to get material that exposes other things,” Kirtley said. (In 2007, St. Paul, Minn. police used a third-party subpoena to gather information on a local reporter without his knowledge. See “St. Paul Police Secretly Subpoena Reporter’s Cell Phone Records” in the Winter 2008 issue of the Bulletin.)

In a Feb. 25, 2011 New York Times story, Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, expressed concern about the chilling effect the Sterling investigation could have on government workers who might criticize their bosses by speaking to the media. “The problem is that [Risen] and other reporters are going to have a much more difficult time in the future having government whistleblowers talk to them, and that’s the reason [government officials] do this.”

Risen’s assessment, given to the Gerstein, was more direct: “We’ve argued that I was a victim of harassment by the government. This seems to bolster that.”

Manning, WikiLeaks Case Leads to Prominent Resignation, Twitter Investigation

The case brewing against Pfc. Bradley Manning, the military intelligence analyst charged with leaking thousands of military and diplomatic documents and other information to the website WikiLeaks, has also raised questions and criticism over discouraging whistleblowers while chilling freedom of speech.

On March 1, 2011 the Army announced the addition of 22 charges to those already pending against Manning, who was first taken into custody in May 2010 in Kuwait over allegations that he had leaked classified video taken from a U.S. military helicopter as its guns shot and killed a Reuters photographer in Baghdad in July 2007. WikiLeaks titled the video “Collateral Murder” and released it online, including on YouTube, in April 2010. Manning has also been accused of providing WikiLeaks with tens of thousands of classified field reports filed by American troops in Afghanistan, which WikiLeaks began publishing in July 2010, and hundreds of thousands of American diplomatic cables, which WikiLeaks began to release in November 2010. (For more on the initial round of WikiLeaks documents, see “WikiLeaks’ Document Dump Sparks Debate” in the Summer 2010 Silha Bulletin. Silha Center Director Jane Kirtley discussed “The WikiLeaks Quandary” in the Fall 2010 issue.) On April 25, WikiLeaks released a new round of documents focused on details surrounding detainees at the United States’ detention center in Guantanamo Bay, Cuba.

The original charges against Manning included violations of Article 92 of the Uniform Code of Military Justice (UCMJ) for “violating a lawful Army regulation by transferring classified data onto his personal computer and adding unauthorized software to a classified computer system” and Article 134 for general misconduct—breaking federal laws against disclosing classified information. According to Manning’s new “charge sheet,” the March 1 charges included violations of Article 104, “aiding the enemy;” charges stemming from violations of Article 92, “failure to obey order or regulation;” and Article 134, which extends generally to offenses not specifically listed in the UCMJ which “shall be punished at the discretion of [the] court.”

The New York Times reported March 2, 2011 that Manning’s lawyer, David E. Coombs, posted a comment on his Twitter feed saying that the Article 104 charge was the “most significant additional charge.” The Times reported that Coombs “has largely declined to talk to the news media.”

Article 104 of the UCMJ says: “Any person who (1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.” The charge sheet did not identify an enemy that Manning was accused of aiding. According to the Times, a military statement said that “the prosecution team had decided against recommending the death penalty in [Manning’s] case.”

From July 2010 until April 2011, Manning was held at a Marine Corps brig in Quantico, Va. The conditions of Manning’s detention drew criticism from Coombs, commentators, and news media. Coombs wrote several posts on his blog, located at http://www.armycourtmartialdefense.info, detailing treatment of Manning that he called “degrading and humiliating.” After being transferred to Quantico, Manning was held under “maximum custody” with additional “suicide watch” and “prevention of injury watch” measures, according to a complaint he filed with the Quantico base commander on January 11. On April 19, The Associated Press (AP) reported that the Pentagon announced that Manning would be moved to the Fort Leavenworth Joint Regional Correctional Facility in Kansas.

According to the January 11 complaint, Manning was permitted to leave his cell for one hour out of every 24 for exercise, when he was allowed to walk in an empty room. He was forbidden to exercise in his cell, and was allowed no more than one book or magazine at a time, which was removed when he went to bed. His meals were served in his cell. The suicide and prevention of injury watch measures required Manning to respond affirmatively to guards asking whether he was “ok” every five minutes between 5 a.m. and 8 p.m., when he was prohibited from sleeping. He was not allowed a pillow or sheets, and if he covered his head or turned toward the wall while sleeping, he was awakened to ensure that he was “ok.” According to the complaint, two forensic psychiatrists at the brig who examined Manning consistently recommended that Manning be moved to “medium custody” and taken off of suicide and prevention of injury watch.

Coombs reported in a March 5 blog post that beginning March 2, Manning was required to sleep completely naked and report for morning roll call naked, after which his clothing was returned. The new treatment was a result of a remark that his treatment as a self-injury risk was “absurd” and, according to Coombs, he “sarcastically stated that if he wanted to harm himself, he could conceivably do so with the elastic waistband of his underwear or with his flip-flops.”

In his post, Coombs argued that “the decision to strip PFC Manning of his clothing … is clearly punitive in nature. There is no mental health justification for the decision.There is no basis in logic for this decision.PFC Manning is under 24 hour surveillance, with guards never being more than a few feet away from his cell.PFC Manningis permitted to have his underwear and clothing during the day, with no apparent concern that he will harm himself during this time period.Moreover, if Brig officialswere genuinely concerned about PFC Manning using either his underwear or flip-flops to harm himself (despite the recommendation of the Brig’s psychiatrist) they could undoubtedlyprovide him with clothing that would not, in their view,present a risk of self-harm.Indeed, Brig officials have provided him other items such astear-resistant blankets and a mattress with a built-in pillow due to their purported concerns.” A March 13 post on the Washington Post World blog reported that beginning March 12, Manning was receiving sleeping garments.

March 14 editorials in the Los Angeles Times and New York Times decried Manning’s treatment. The New York Times said that Manning’s detention “conjures creepy memories of how the Bush administration used to treat terror suspects,” while the Los Angeles Times observed, “it’s hard to resist the conclusion that punishment, not protection, is the purpose of these degrading measures. Punishment may be in Manning’s future … [but his] treatment should reflect the fact that he remains innocent until proven guilty.”

Outspoken criticism of the conditions of Manning’s detention also forced the resignation of a top Obama administration spokesperson. According to a March 10 blog post by BBC news presenter and Nieman Journalism Fellow Phillippa Thomas, Chief State Department Spokesman P.J. Crowley told about 20 people gathered for an event organized by the Center for Future Civic Media at MIT that the treatment of Manning was “ridiculous and counterproductive and stupid,” adding “none the less [he] is in the right place.”

Obama was asked about Manning’s detention in a press conference the following day. According to the March 13 Washington Post blog post, Obama said the Pentagon had assured him that the conditions of Manning’s detention were “appropriate.”

On March 13, Crowley resigned. CNN Senior White House Correspondent Ed Henry reported March 13 that “sources close to the matter said the resignation … came under pressure from the White House, where officials were furious about his suggestion that the Obama administration is mistreating Manning.” In an interview broadcast March 28 by the program “HARDtalk” on BBC World News, Crowley said “I don’t regret saying what I said,” although “quite honestly I didn’t necessarily think the controversy would go as far as it did.” Crowley declined to give details about “privileged conversations” he had with White House officials in the fallout from his remarks, saying that “I felt that my actions put the president in a difficult position. I felt that the only appropriate thing for me to do was resign.”

Commentators decried the fact that Crowley was apparently forced to resign for speaking his mind on Manning’s detention. Steven Aftergood, an expert on government secrecy, intelligence, and national security policy, wrote in a post on his blog Secrecy News, “in an intelligent system of government, [Crowley’s] views would be freely aired and honestly attended to. But it seems that there is not much place for such speech in the current Administration.” Glenn Greenwald, in a March 13 blog post, said, “so, in Barack Obama’s administration, it’s perfectly acceptable to abuse an American citizen in detention who has been convicted of nothing … but speaking out against that abuse is a firing offense. Good to know.”

Edward Wasserman, the Knight Professor of Journalism Ethics at Washington and Lee University and a columnist for The Miami Herald, criticized mainstream media more broadly for not speaking out against the detention of Manning, considering that Manning is accused of giving the media access to such a valuable trove of information. In a March 28 column, Wasserman asked, “don’t journalists have some obligation to their sources? … If these news media believe they were right to publish the material Manning gave them, how can they stand aside as he faces life in prison for giving it to them? If they did right and the world benefited, did he do wrong? On what grounds can they say—as [New York Times Executive Editor Bill] Keller and Guardian of London editor Alan Rusbridger have—that they would help defend Wikileaks boss Julian Assange if the U.S. charges him, while they won’t lift a finger to protest Manning’s incarceration?” (Wasserman was a featured speaker at the 2008 Silha Spring Ethics Forum. See “Forum Explores Journalistic Independence, War and Politics” in the Spring 2008 Silha Bulletin.)

The Pentagon said Manning’s move to Fort Leavenworth was not a response to criticism of his treatment in Quantico, the AP reported April 19. Defense Department General Counsel Jeh Johnson said in a press conference that “the fact that we have made a decision to transfer this particular pretrial confine ... should not be interpreted as a criticism of the place he was before.” Johnson and Army Undersecretary Joseph Westphal told reporters that Fort Leavenworth is more open, has more space, and will provide Manning with a greater opportunity to eat and interact with other prisoners, the AP reported. Johnson and Westphal said that the facility also has a broader array of facilities, including trained mental, emotional, and physical health staff. The AP reported that Pentagon officials said Manning’s case is very complex and could drag on for months or years.

The federal government’s investigation following WikiLeaks’ publication of government secrets has not been limited to Manning, however. On March 11, a federal magistrate judge in the Eastern District of Virginia upheld an order demanding the disclosure of account information of three Twitter users with ties to WikiLeaks.

The Twitter users who filed a motion to dismiss the order as well as a motion to unseal the court records associated with it were Birgitta Jónsdóttir, a member of the Icelandic parliament who has been associated with WikiLeaks; Jacob Appelbaum, a WikiLeaks volunteer from Seattle; and Rop Gonggrijp, a Dutch computer security specialist and Internet entrepreneur. Lawyers from the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) represented the users. The order also sought records relating to WikiLeaks itself, its founder Julian Assange, and Manning. The Privacy Inc. blog on the website Cnet reported March 11 that prosecutors said no one “associated with” WikiLeaks has filed an objection to the order.

The order was filed under seal on Dec. 14, 2010. Citing the Stored Communications Act, 18 U.S.C. § 2703 et seq., it required Twitter to turn over the users’ “subscriber names, user names, screen names, or other identities;” contact information; records of the users’ “connection[s,] … session times and durations;” the “means and source of payment for such service (including any credit card or bank account number) and billing records; records of user activity for any connections made to or from the Account, including date, time, length, and method of connections, data transfer volume, user name, and source and destination Internet Protocol address(es);” among other things.

 The Stored Communications Act outlines the circumstances in which government entities may, via a warrant or subpoena, require the disclosure of the contents of a wire or electronic communication, or any records pertaining to that communication, by an electronic communication service provider. According to U.S. Magistrate Judge Theresa Carroll Buchanan’s order, the law applies differently to “records” of communications, such as a name, address, connection records, or payment records; and communication “contents:” the actual messages communicated. If the government seeks communication contents, it must notify the subject of the warrant or subpoena, who can challenge the order. If the government seeks only records, however, notification is not required, and the user may not challenge the order.

The New York Times reported January 9 that such requests to Internet communications companies are somewhat routine, but are rarely disclosed to the public. The reason the Twitter order became public is because Twitter took the unusual step of challenging the secrecy of the government request in order to inform its targets. Twitter won that challenge, and the existence of the order, though not its contents, was made public.

Nevertheless, Buchanan’s March 11 order ruled that Jónsdóttir, Appelbaum, and Gonggrijp lacked standing to challenge the order, since it requested only communication records, and not contents. Buchanan also addressed the three users’ claims that the order was not properly issued because it was too broad and included information irrelevant to the investigation, it violated the Fourth Amendment prohibition of unreasonable searches and seizures, and violated the users’ First Amendment rights to association. In Re: §2703(d) Order; 10GJ3793 (E. Dist. Va., March 11, 2011)

Buchanan ruled that notwithstanding “the difficulty of challenging a document [the users] have not seen,” the government had met its burden under 18 U.S.C. § 2703 (d) to show that its request for records “stated ‘specific and articulable’ facts sufficient to issue the Order … [seeking] disclosures … ‘relevant and material’ to a legitimate law enforcement inquiry.” Moreover, Buchanan ruled that the order did not violate the Fourth Amendment because it did not infringe on “an expectation of privacy that society considers reasonable.” She cited case law that has held that “no legitimate expectation of privacy exists in subscriber information voluntarily conveyed to phone and internet companies,” and said the users “voluntarily conveyed their IP addresses to the Twitter website, thus exposing the information to a third party administrator, and thereby relinquishing any reasonable expectation of privacy.”

Buchanan also found that the order did not violate the users’ First Amendment rights. “Petitioners,” she wrote, “who have already made their Twitter posts and associations publicly available, fail to explain how the Twitter Order has a chilling effect” on their association, adding, “The Twitter Order does not seek to control or direct the content of petitioners’ speech or association.” She said that the order was “reasonable in scope,” reflected a “legitimate” government interest, and was not requested in “bad faith.”

“The freedom of association does not shield members from cooperating with legitimate government investigations,” Buchanan wrote.

Buchanan also denied the users’ request that all documents in the case be unsealed, particularly any documents that would identify other companies (such as Facebook or Google) that might have received orders like the one sent to Twitter. The users cited case law supporting both a common law and constitutional “presumption that public documents, including judicial records, are open and available for citizens to inspect.” Buchanan rejected the request for openness, however, arguing that it was overcome by the government’s need to prevent the destruction of evidence and “prevent[] unnecessary exposure of those who may be the subject of an investigation, but are later exonerated.” Additionally, Buchanan ruled that there is “no First Amendment justification for unsealing the … documents” because “there is no history of openness for documents related to an ongoing criminal investigation” and “there are legitimate concerns that publication of the documents at this juncture will hamper the investigatory process.”

Buchanan agreed to release two redacted documents pertaining to the Twitter order, because they “do not reveal any sensitive investigatory facts which are not already revealed by the Twitter Order” and she agreed to “further review” and take “under consideration” the users’ request that the case be placed on a public docket.

On March 25, Bloomberg news service reported that the Twitter users filed an appeal of Buchanan’s order in federal district court in Alexandria, Va. Bloomberg reported that EFF legal director Cindy Cohn said “services like Twitter have information that can be used to track us and link our communications across multiple services including Twitter, Facebook and Gmail. The magistrate’s ruling that users have no ability to protect that information from the U.S. government is especially troubling.”

ACLU staff attorney Aden Fine, in a March 26 Agence France-Presse (AFP) story, said “if the ruling is allowed to stand, our client might never know how many other companies have been ordered to turn over information about her, and she may never be able to challenge the invasive requests.” The ACLU is helping to represent Jónsdóttir.

The federal investigation into WikiLeaks remains largely secret. A March 14 AP story observed that “prosecutors have said little about their case, though Attorney General Eric Holder has said that the leaks jeopardized national security, and promised to prosecute anyone who violated U.S. law.” The story quoted Aftergood, who speculated about the government’s motives for seeking Twitter records: “Either the government is being extremely diligent in crossing every ‘t’ and dotting every ‘i.’ Or the other possibility is that they have no case whatsoever and they’re tallying up all conceivable leads,” Aftergood said. “The information they’re going to get from Twitter is indirect evidence at best.”

Three Other Cases in Various Stages

Three other leak cases, none of which has included a request for source information or subpoena to a media organization, are in various stages of litigation. On May 24, 2010, former FBI linguist Shamai Leibowitz was sentenced to 20 months in prison after he pled guilty to leaking documents concerning “communication intelligence activities” to an unnamed blogger. According to The Washington Post on May 25, 2010, “federal prosecutors … remained mum about exactly what was contained in the classified papers” that Leibowitz leaked. The Post reported that during Leibowitz’s sentencing hearing, U.S. District Judge Alexander Williams Jr. said federal authorities convinced him that Leibowitz committed a “very, very serious offense,” but even the judge did not know what information Leibowitz disclosed. “I don’t know what was divulged, other than some documents, and I don’t know how it’s compromised things,” Williams said.

Aftergood said in a May 25 Secrecy News post that Leibowitz was the third government employee to ever be sentenced for leaking classified information to the press. Samuel Morison served eight months of a two-year sentence after being convicted in 1985 of disclosing spy satellite photos to Jane’s Defence Weekly and Larry Franklin served 10 months of house arrest after pleading guilty in 2005 to disclosing classified information in conversations with Pro-Israel lobbyists. The lobbyists, Steven Rosen and Keith Weissman, were also indicted in the investigation for taking the information Franklin had shared with them and sharing it with reporters, but the charges were dropped in May 2009. The Washington Post reported May 2, 2009 that U.S. attorney Dana Boente said the government requested dismissal because of “the diminished likelihood the government will prevail” in light of, among other things, a lower court ruling that the Espionage Act required the government to show that the men spread the information with the intent to hurt the United States. Media organizations and free press advocates criticized the prosecution of Rosen and Weissman, who were not government employees, arguing that it was one step away from prosecuting journalists under the Espionage Act for engaging in everyday Washington newsgathering practices—talking to sources and passing along information. (For more on the case, see “Judge Rules Classified Evidence in AIPAC trial Cannot be Kept Secret from Press and Public” in the Spring 2007 issue of the Silha Bulletin.)

On Aug. 27, 2010, Stephen Kim, a former foreign policy analyst contracted to the U.S. State Department, pled not guilty to charges that he had leaked classified information about North Korea to Fox News, according to The New York Times. The Reporters Committee for Freedom of the Press reported on Feb. 11, 2011 that Kim filed motions to dismiss the charges, arguing, among other things, that the prosecution violates the First Amendment because it does not show that Kim handed over documents, stole tangible reports, or received compensation or reward for “what would include oral conversations with a member of the press.” Kim’s attorney, Abbe Lowell, also led the defense of Rosen and Weissman. Lowell argued in a January 31 press release that in the Kim case “the government seeks to make illegal mere oral conversations between a government official and a member of the press.”

Former National Security Administration (NSA) official Thomas Drake was indicted on April 14, 2010, after leaking information about government wiretapping programs to Baltimore Sun reporter Siobhan Gorman. The New York Times reported June 11, 2010 that the Bush administration initially suspected that Drake was the source for the Times’ Pulitzer-winning reports on warrantless wiretaps. According to the Times, former officials said that five prosecutors and 25 FBI agents were assigned to that investigation, which included a raid of Drake’s house in November 2007, as well as searches of the homes of three other security agency employees and a Congressional aide.

On March 31, 2011, The Baltimore Sun reported that Judge Richard D. Bennett of the U.S. District Court for the District of Maryland said in a March 31 hearing that he would allow Gorman’s articles about NSA program and management problems to be admitted as evidence in Drake’s trial. However, the Sun reported that Bennett said he would not allow Gorman to be called as a witness at trial. According to the Sun, Bennett said forcing Gorman to testify could end in a “deep, dark hole,” and he is not inclined to jail reporters for refusing to reveal sources. Drake’s trial is scheduled to begin June 13, 2011.

Regardless of the ultimate outcome of the cases against Sterling, Manning, Kim, or Drake, the litigation is likely to continue to help expand an area of law that remained relatively untouched for decades. As the Obama administration moves forward with the prosecutions, questions about how World War I-era anti-spying laws apply to a variety of contemporary news media practices and technology are likely to arise, forcing lawmakers, judges, journalists, and citizens to contemplate the benefits of and challenges to access to information in a democracy.

– Patrick File
Silha Fellow and Bulletin Editor