At a House Judiciary Subcommittee hearing yesterday, members of Congress speculated on taking more so-called anti-leak actions that would undermine the First Amendment more than they would stop actual leaks, such as launching their own leak investigations and subpoenaing witnesses and, worse, prosecuting journalists under the Espionage Act of publishing allegedly classified information.
Missing from yesterday's hearing were any of the whistleblowers who have the dubious distinction of being prosecuted under the Espionage Act, like National Security Agency (NSA) whistleblower Thomas Drake.
Also missing from Congress' considerations were the two biggest anti-leak measures Congress could act on:
(1) A thorough review and reform of the broken classification system plagued by rampant over-classification and too often used to cover up government wrongdoing; and
(2) providing whistleblowers with safe and effective internal channels to disclose government waste, fraud, abuse, or illegality, starting with the Whistleblower Protection Enhancement Act (HR 3289, S 743)
Instead Congress is playing politics with hearings presenting selective views. The solution to leaks is not MORE expensive "leak investigations" that too often land on whistleblowers who disclosed government waste, fraud, abuse or illegality, while high-level administration officials who leak for political gain continue unaccountable.
I have long warned that the Obama administration's record-breaking use of the Espionage Act to prosecute people for alleged mishandling of classified information could devolve quickly into a war on the media. Already, the Espionage Act cases are tinged with attacks on journalists and all the cases involve disclosures to the media.
However, the courts have been reluctant to play along with this "leak hysteria." Even the Republican-appointed judge in Drake's case wisely refused to go down the "dark path" of subpoenaing reporters, much less prosecuting them. Judge Brinkema in the Eastern District of Virginia - who is presiding over the Espionage Act cases against former CIA officer Jeffery Sterling and torture whistleblower John Kiriakou - had similar reservations and rejected the Justice Department's attempts to subpoena New York Times reporter Jim Risen to testify about his alleged source. Brinkema eloquently articulated for the Justice Department what prior legal precedent unquestionably supports, that:
A criminal trial subpoena is not a free pass for the government to rifle through a reporter's notebook.
Now it appears the attacks on Jim Risen are just a preview if Congress has its way in seeking prosecution for journalists who publish allegedly classified information.
The Justice Department's priorities are disastrously out of whack and focused on prosecuting low-level officials, who are usually whistleblowers, under the heavy-handed Espionage Act while ignoring, if not condoning or orchestrating, leaks of classified information from high-level administration officials. Congress' priorities are no better and appear more aimed at scoring political points than at actually stopping leaks. Meanwhile, the real loser in this misguided "leak hysteria" is the First Amendment. Priorities need to change, starting with providing safe channels for whistleblowers to report waste, fraud, abuse, or illegality and receive meaningful protection from retaliation.