45 online
 
Most Popular Choices
Share on Facebook 23 Printer Friendly Page More Sharing
Life Arts    H2'ed 8/11/10

Unnecessary lies: A whistleblower's perspective on Necessary Secrets

By       (Page 2 of 2 pages) Become a premium member to see this article and all articles as one long page.   6 comments
Message Jesselyn Radack
To the extent that Schoenfeld is apoplectic about New York Times revelations, one can only imagine what he thinks of Wikileaks. I submit, however, that the answer lies in meaningful whistleblower protections, not retaliatory criminal prosecutions.

PROSECUTING REPORTERS AND SOURCES UNDER THE ESPIONAGE ACT

Schoenfeld decries "retrospective symmetry," in which a vision of the past is imposed upon the present. He almost sounds like a liberal when he says: "It will not do to...hold up the handiwork of the Founding Fathers as a template for our contemporary circumstances....We enter this historical terrain not out of some originalist impulse to embrace the standards of the eighteenth century and impose them on our own institutions." Yet he does not hesitate to graft modern words like "leaking" and "terrorism" onto his revisionist interpretation of history.

Perhaps Schoenfeld should move to England, where they have an Official Secrets Act, which punishes both the source and the publisher of secret government materials. Instead, Schoenfeld advocates bypassing Congress (anyone detect a trend here?) to create what is tantamount to a state secrets act by urging prosecution under the Espionage Act, thus doing an end-run around the democratic legislative process he insists he believes in. In a key chapter, Schoenfeld outlines a "hypothetical prosecution" of The New York Times. Although Schoenfeld takes credit for this idea, a number of scholars and judges have for years argued about the applicability of the Espionage Act's sweeping 793 provision to the press. I will leave to others more expert in the area the arguments about why the First Amendment should immunize reporters conducting good-faith investigations for stories of public concern, even if they could technically be held liable under a broad inchoate theory of liability under the Espionage Act.

What is more disturbing is Schoenfeld's application of 793(e)'s vast language to whistleblowers. In the 93 years of its existence, there have been only three prosecutions of "leakers" under the Espionage Act, which would seemingly counsel hesitation in using it to prosecute them as spies: the unsuccessful prosecution of Daniel Ellsberg and Anthony Russo in 1971 for disclosing the Pentagon Papers; the 1985 conviction of Samuel Morison -- later pardoned by President Bill Clinton -- for leaking U.S. satellite photos to a military-related magazine focusing on defense planning, weapons technology and world security threats; and the aborted 2005 indictment of two employees of the American-Israel Public Affairs Committee on charges of unauthorized receipt and transmittal of classified information -- the first time the Espionage Act has been used against private citizens for doing nothing more than what other lobbyists and journalists do all the time. None of these men were spies. None betrayed the United States or intended to harm it. They neither gave nor sold information to foreign governments.

Moreover, Congress never intended for the statute to have such broad effect. From its inception, the Espionage Act engendered fears about its seemingly wide-ranging applicability. Sens. Lee Overman (D-N.C.) and Key Pittman (D-Nev.) emphasized during the 1917 debates that "[t]he object of the act is to punish a man guilty of a crime, and that crime consists of spying on this Government." Sen. Pat McCarran (D-Nev.) (hardly a champion of civil liberties, he is best known for the McCarran-Walter Act, a bill that empowered the government to deny visas for ideological reasons) asked Attorney General Thomas Clark to allay similar fears in the 1949 debate over amending the Espionage Act, which occurred the next year. Clark assured him, "Nobody other than a spy, saboteur, or other person who would weaken the internal security of the Nation need have any fear of prosecution under either existing law or the provisions of this bill." (Later, as a U.S. Supreme Court justice, Clark voted to strike down as unconstitutional President Truman's seizure of the nation's steel mills to end a strike in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) -- the landmark case on presidential power in wartime, which limited the power of the president to act without explicit constitutional authority or congressional approval, that the Justice Department memos justifying secret surveillance neglected to cite.)

Overly broad, ambiguous laws have an irresistible quality, and now -- ignoring the president's own edict to "look forward, not backward" -- the Obama administration, through its marching orders to Attorney General Eric Holder Jr., has literally taken a page from Schoenfeld's book by forcing a trial for espionage on a person who is not a spy: Thomas Drake. Unfortunately, the Espionage Act does not distinguish between spying and "leaking." A hurdle in the Drake prosecution will be demonstrating to a jury that he had the requisite state of mind that is a crucial element of the crime. Specifically, did he have "reason to believe" that his disclosure -- if he made one at all -- "could be used to the injury of the United States"? There is more than a reasonable doubt that Drake had any such state of mind. When Drake went to a reporter, it was only after his internal complaints fell on the deaf ears of his bosses, the NSA's general counsel and inspector general, the Defense Department's inspector general and the House and Senate intelligence committees. His disclosures were a matter of public concern and were clearly of public significance: The NSA went on a "billion dollar boondoggle" and ultimately chose an extremely intrusive surveillance program over an even better program that protected privacy.

In a logical absurdity, if you subscribe to Schoenfeld's argument, sources who disclose information to reporters would be criminally liable, reporters who then write about it for newspapers would be liable, the newspapers that publish the information would be liable, and by extension, any readers would be liable, especially if they e-mail the article, discuss it or disseminate it any further. The old adage goes, "it's not the crime, but the cover-up" that will ultimately get bad actors. Under this calculus, at least malfeasors are held accountable at some point. But Schoenfeld's version appears to be "it's not the crime -- ever -- but the exposure of it" that will be penalized. I submit that when secrecy is used to cloak illegal conduct, that is what should be punished.

Next Page  1  |  2

(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).

Well Said 1   Supported 1   Interesting 1  
Rate It | View Ratings

Jesselyn Radack Social Media Pages: Facebook page url on login Profile not filled in       Twitter page url on login Profile not filled in       Linkedin page url on login Profile not filled in       Instagram page url on login Profile not filled in

My name is Jesselyn Radack and I am the former Justice Department ethics attorney and whistleblower in the case of "American Taliban" John Walker Lindh. In today's issue of The National Law Journal (Feb. 19, 2007), I have an Op-Ed entitled (more...)
 
Go To Commenting
The views expressed herein are the sole responsibility of the author and do not necessarily reflect those of this website or its editors.
Writers Guidelines

 
Contact AuthorContact Author Contact EditorContact Editor Author PageView Authors' Articles
Support OpEdNews

OpEdNews depends upon can't survive without your help.

If you value this article and the work of OpEdNews, please either Donate or Purchase a premium membership.

STAY IN THE KNOW
If you've enjoyed this, sign up for our daily or weekly newsletter to get lots of great progressive content.
Daily Weekly     OpEd News Newsletter
Name
Email
   (Opens new browser window)
 

Most Popular Articles by this Author:     (View All Most Popular Articles by this Author)

Charging Wikileaks Source: The Nail in the Coffin of Whistblowers

DHS Spies on Maryland Peace Activists: It's Worse Than We Thought

Wash. Post Profile: Thomas Drake (An NSA Whistleblower We Would Have Cheered During the Bush Years)

McCarthyism on Steroids: Monitoring Americans

Yoo's Gift to President Obama: Return to Sender

Justice Department Leakers of Classified Info. Get a Pass

To View Comments or Join the Conversation:

Tell A Friend