Attorney General Jeff Sessions last week announced that the Trump administration would begin a hunt for leakers unprecedented in modern American political history. Sessions couched the announcement in terms of a campaign against those who harm the country's security by wantonly leaking national security information. But nothing could be further from the truth. This is a policy to use the Espionage Act -- bringing one of the gravest charges that can be levied against an American -- to plug leaks that do nothing more than embarrass the president.
In order to understand the details of what Sessions is proposing, we need to get a couple of definitions out of the way. First, the federal district court for the Eastern District of Virginia ruled in my case, US v. Kiriakou, in a precedent-setting decision, that "espionage" was defined simply as "providing national defense information to any person not entitled to receive it." This was a dangerous ruling for several reasons. Most importantly, the courts have never defined what "national defense information" means. It is up to each individual judge. So what may be "espionage" in one district may be nothing in another. Similarly, the Espionage Act says literally nothing about intent. In my case, Judge Leonie Brinkema made a point of saying that a person could accidentally commit espionage and should still be punished for it, regardless of intent. Ridiculous.
Second, the United States has a terrible problem with overclassification, which is the "designation of information as classified when the information does not meet one or more of the standards for classification under section 1.1 of Executive Order 13256." In other words, there are strict rules about what should be classified and what should not be. In addition, there are specific rules as to what should be classified at what level -- confidential, secret, or top secret. Generally, though, people who classify documents ignore these rules. For example, when my wife and I were at the CIA and wanted to have lunch together, I would email her and say, "Wanna have lunch?" I would classify that email "SECRET." Why? Because everybody classified literally everything as SECRET. She would respond "Sure. See you at noon." And she would classify her response SECRET. That's one of the reasons why there are more than three billion classified documents in US government databases.
There are other ways to protect information that ought not to be public but that shouldn't necessarily be classified. They are called "controls" and include "Sensitive but Unclassified," (SBU) and For Official Use Only (FOUO.) They are for unclassified documents that are not meant to be publicly disseminated. Unfortunately, these controls are generally ignored in favor of overclassification.
One more point: There's a difference between leaking and whistleblowing. Whistleblowing is exposing evidence of waste, fraud, abuse, illegality, or threats to the public health or public safety. Leaking is leaking, whether it's for the excitement, to make the leaker feel important, revenge, or a myriad of other reasons. Leaking is not necessarily in the public interest. Whistleblowing is.
This gets us back to Sessions' new war on "leaks." Federal prosecutors in leak cases will argue that the revelation caused "serious," "grave," or "exceptionally grave" damage to the national security, depending on the classification level. We're not talking about serious, grave, or exceptionally grave embarrassment to the president. This is supposed to be harm to the national security.
The impetus for the Sessions announcement appears to have been the leak of transcripts of Trump's calls in the first week of his presidency with the president of Mexico and the prime minister of Australia. The conversations were non-substantive and revealed literally nothing about national security. Indeed, the only thing that was even interesting was how Trump begged the Mexican president to stop saying that Mexico wouldn't pay for the border wall, and that Trump rudely hung up on the Australian. I don't believe the transcripts were properly classified. And their leak certainly doesn't rise to the level of espionage.
Still, Sessions is ordering that the FBI and the federal Counterintelligence Executive shift their precious resources away from tracking spies and those malicious foreign entities that intend to do us harm so that they can concentrate on disgruntled White House staff members and whistleblowers who have no chain of command through which to report their evidence of waste, fraud, abuse, or illegality. He'll do it while simultaneously threatening journalists with prison just for doing their jobs.
And who are the real leakers in government? I can name several of them: Donald Trump, Mike Pence, H.R. McMaster, and pretty much every one of the 535 members of the House and Senate. It's always been that way. It's not going to change. Sessions' war on leaks will end up taking down a few sacrificial lambs. But the leaks won't stop. They'll never stop. It's the nature of Washington.
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