The Congressional Research Service (CRS), which normally publishes stellar reports, just did one on Criminal Prohibitions on the Publication of Classified Defense Information.
Even the title is misleading because it conflates two different concepts--"National Defense Information" (language from the Espionage Act) and "Classification" (language from an Executive Order issued decades later)--that lie at the heart of why the government's attempts to use the Espionage Act against people alleged to have mishandled classified information have failed.
The thing I found most dangerous, however, is how utterly sloppy and wrong it got the very public facts of my client Tom Drake's case. Why is that so? Because the report parrots the government's breathless, oft-repeated (and incorrect) meme: journalists, you don't have to worry--we realize you occupy hallowed and sacred ground in our democracy--we're only going to criminally prosecute your sources.
As to the case of NSA whistleblower Thomas Drake--who exposed a multi-billion-dollar, intrusive, failed domestic surveillance program when a cheaper, effective, and privacy-protecting alternative was available--I will correct the paragraph on him sentence-by-sentence:
The Obama Administration is taking a relatively hardline stance with respect to those suspected of leaking classified information to the press, with six prosecutions currently under way or completed (including Bradley Manning).This is sentence is factually wrong because while Obama is taking a draconian stance, the Drake case involved neither "leaking" to the press (he was charged only with "retention") nor "classified" information (the documents at issue were unclassified.) Nowhere does the report mention that the six people charge under the Espionage Act for mishandling classified information (there are actually seven) are whistleblowers.
The next sentence states:
A former National Security Agency (NSA) official, Thomas A. Drake, recently agreed to plead guilty to exceeding authorized use of a government computer in violation of 18 U.S.C. Section 1030(a)(2)(B) (a misdemeanor), after the government dropped more serious charges under the Espionage Act, among other offenses.This is wrong on two points. Drake didn't agree to plead guilty until after the government agreed to drop the charges. And the government didn't just drop the "more serious charges"--it dropped ALL ten felony charges against Drake.
The sentence after that states:
Mr. Drake was initially investigated beginning in 2007 in connection with the New York Times’ revelations regarding the Bush Administration’s warrantless surveillance program, but was eventually charged in connection with providing classified information that revealed alleged NSA mismanagement to the Baltimore Sun.The investigation into the sources for the Times' warrantless wiretapping article began in 2005. More significantly, none of the charges against Drake state that he provided classified information to the Baltimore Sun--or to anyone.
Finally, perhaps the worst sentence of all:
The prosecution eventually dropped most of the charges after the judge ruled that the government’s proposed substitutions for documentary evidence it sought to introduce would not provide an adequate opportunity for the defendant to present his case.The prosecution dropped not "most," but all of the charges because the judge ruled that the information the government claimed was "classified" was entirely unclassified.
Why the mistakes? The Congressional Research Service is too smart to do such shoddy research (if it had questions, it could have contacted me because the report discusses at least two of my clients)--so I can only draw the conclusion that CRS intended, consciously or not, to bolster the government's breathless claims that
while unlawful acquisition of information [by whistleblowers and sources] might be subject to criminal prosecution . . . publication of that information remains protected.And I debunk that notion here because even journalists recognize that the war on their sources is a war on them, and both are chilled by the government's unprecedented war on information.