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President Obama once sang the praises of whistleblowers within the U.S. government. But over last three years, the Obama administration has launched criminal prosecutions against people behind government leaks at an unprecedented rate. We examine what’s behind the increase, and the blurry line between “leaking” and “whistleblowing.”
- Charlie Savage Washington Correspondent, New York Times
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, truth telling in the public interests, personal stories of people who blow the whistle on wrong doing in the workplace. But first, the current debate about who is and who is not a whistleblower. President Obama came into office promising new levels of government transparency, exposing the inner workings of government to sunlight. But the Obama administration surprised transparency advocates with its hard line against government officials who give sensitive information to the press, especially information about national security.
MR. KOJO NNAMDIOver the past three years, it has prosecuted six current or former officials under the espionage act of 1917, more then all previous administrations combined. The administration is making a distinction between people who use established channels to speak out and people who step outside those channels and leak information to reporters. But the line between whistleblower and leaker can be a blurry one. Joining us to have this conversation is Charlie Savage. He's a Washington correspondent with the New York Times. His beat covers national security and law. He joins us by phone. Charlie Savage, thank you for joining us.
MR. CHARLIE SAVAGEThanks for having me on.
NNAMDIMr. Obama came into office pledging a new commitment to transparency and his administration has created new online portals for accessing information and data about government spending and the like. But it's also clamped down people who talk to the press. These two story lines aren't necessarily at cross purposes but many advocates have been alarmed. What's going on here?
SAVAGEWell, you're absolutely right. After promising a -- the most transparent administration in history and so forth, the Obama administration has, especially in the realm of national security secrets, proved to be much more secretive than the expectations created by President Obama's campaign, rhetoric and early executive orders. One aspect of this has been his willingness to assert the state secrets privilege in court and another has been the unprecedented number of leak prosecutions is has brought. You mentioned six being more then all previous Presidents combined.
SAVAGEIn fact, it's twice as many as all previous Presidents combined to prosecute government officials under that law. And so it's been -- and this is only in three plus years that, you know, other administrations had as many as eight years to accumulate that kind of a record and didn't. And so that has left a lot of people scratching their heads and wondering what is going on.
NNAMDIThe espionage act was passed in 1917, at the time of war. This was before the government even had a classification system like we have today. And until relatively recently, the highest profile person to be prosecuted under it was Daniel Ellsberg. But this has become a favorite tool of the Obama administration. What is the espionage act?
SAVAGESo during World War I, there was a series of laws enacted by Congress under President Woodrow Wilson that were intended to, sort of, suppress the message of decent, tighten down on saboteurs and so forth who might be here from Germany and, you know, there was kinds of, sort of, amazing things that were done, putting people in jail for, you know, saying things against the war or sending mail that deviated or criticized the government in any way. At the end of World War I, most of that stuff was repealed. But a chunk of the espionage act remained on the books and it says, in so many words, that you can be prosecuted if you have national decent information and you give it without authorization to someone else.
SAVAGEThere's -- this has been used very occasionally against government officials who have leaked, but not very often. In part because the law is so antiquated that it, as you mentioned, it predates the classification system and it doesn't even sort of speak to how we think about government secrets today. But the Obama administration has used it six times and it is threatening to use it -- has been kicking around the idea of prosecuting the organization Wikileaks under this law although it has not brought charges to date. And that, especially would be alarming to people in the journalism community because Wikileaks was not a government official but a recipient of information that then disseminated it which is what investigative journalists do every day.
NNAMDIIn case you're just joining us, we're talking with Charlie Savage. He's Washington correspondent for the New York Times. His beat covers national security and the law. We're talking about whistleblowers, leakers and the Obama administration. Inviting your calls at 800-433-8850. What do you think? Do you see inconsistencies between celebrating open government on the one hand and prosecuting people who leak information to the press on the other, 800-433-8850? You can send us a tweet @kojoshow or email us to firstname.lastname@example.org. Or simply go to our website kojoshow.org and join the conversation there. Charlie Savage, how big a problem is leaking?
SAVAGEWell, that's in the eye of the beholder of course. We -- one theory about what's going on -- so let me just track back here. There's a great desire to understand, why has there been so many leak prosecutions in just three years under this administration, defying all expectations? And there's been a great desire for this to have been deliberate, a policy. And I have spent a awful lot of time and I know other reporters have too, trying to figure out if that's right. Was there some meeting in which there was some particular leak that really annoyed Attorney General Holder or President Obama and he, you know, slammed his fists on the table and said, let's go to war with the media.
SAVAGEI have not found that meeting. It doesn't mean it didn't happen. It just means I haven't been able to find it so far. It's hard to prove a negative. But there are alternative theories for how this could have been happening to such a new degree without it having been a deliberate policy choice. And the alternative theory goes something like this, first of all, there's more people with classification clearance now than there used to be and there's more secret stuff that is interesting to talk about now than there used to be.
SAVAGEBecause this is the post 9/11 environment and there is surveillance and there is interrogation and there's all kinds of stuff going on that before then we had, you know, we were trying to spy on and not get spied on by Russia or China but that was about it in the '90s for example. There were fewer people working in classified information and less information to leak. So with more information out there and more people who have access to it, maybe statistically, there's a -- at the margins, a little more people willing to leak. And then you add to that, that more and more these days we leave electronic traces of our communication...
NNAMDIYou think part of this story could be technological, huh?
SAVAGEI do. It's easier -- well, this is a theory. It's easier now to reconstruct who was talking whom, who is meeting with whom, we send emails, we call each other on the cell phone, these records are preserved. And so if you become suspicious about a leak, it's probably easier today than it was 15 or 20 years ago or 10 years ago to reconstruct who was that reporter in contact with who would've had access to this information. And that means it's easier to build a circumstantial case against a leaker then it used to be, even if the journalist is refusing to testify about who his or her source was.
NNAMDISo you're saying Deep Throat would've been busted today because we would've had access to his cell phone records?
SAVAGEWell, if I remember Bob Woodward's "Secret Man Book," right, would signal that it was time to talk but changing a flower pot around or something. So that presumably is the only way left to do it.
NNAMDIThe most recent espionage act case involves former CIA officer John Kiriakou who was charged with disclosing classified information to journalists about the capture and interrogation of a suspected al-Qaeda member. Can you briefly recap that story for us?
SAVAGEWell, this is a weird case. As best as we can figure out, it did not start off as leak investigation. It started off because the defense lawyers for some Guantanamo detainees who were facing the death penalty before a military commission at Guantanamo were trying to figure out who the CIA people were who had rendered and interrogated their clients because they wanted to make the case that their clients ought not be executed as mitigation for the fact that their clients had been tortured in CIA hands. And they had some investigators that were trying to say "Who are these people, what are their faces, can we call them as witnesses?"
SAVAGEAnd they were submitting some classified filings before a military judge in Guantanamo that had some photographs and some names of people who were involved in the CIA's rendition and interrogation program during the early Bush years when this was going on. And the -- this freaked out the government. Like, how did you get these names? How are -- these are, you know, these are government professional career intelligence officials and that they launched an investigation into that.
SAVAGEAnd that trail lead back to, it turned out, an investigator who had been working with the defense lawyers and then into a allegedly, Mr. Kiriakou, who may -- a former CIA official, who may have helped confirm or -- some of the identities for these investigators. And in fact, none of these names or pictures were ever made public but what this did show evidentially, was that he allegedly had said some things he shouldn't have, maybe. We'll see whether they can prove that in court. So it didn't start off as a leak investigation. It sort of sideways became one. And that's what he became the sixth person, then, to be charged under the espionage act.
NNAMDILater in the broadcast, we'll be talking with people who have been involved in whistle blowing. But first, here is Eric in Alexandria, Va. Eric, you're on the air. Go ahead, please.
ERICKojo, thanks for taking my call. Great show. I just want to make sure that we understood there was a distinction here, that when you're giving that information, it's a privilege and not a right. And you know, although the first amendment is not a part of this at all in that when someone's giving sensitive information, in order to gain that access their basically sign on the line saying that they understand the rules of the quote-unquote game. So I know Mr. Savage is saying that "Well, should these people be protected. I mean, they just gave this information up." But the point is that, that this is not a right that everyone has to this. This is a privilege that is given to the person from the government under these stipulations.
NNAMDIWell, you know, Charlie Savage, I guess this is what it boils down to. Because people would like to understand clearly, the distinction between whistle blowing and leaking. The President has said good things about whistleblower but I guess, what distinguishes someone who leaks sensitive information from someone who blows a whistle?
SAVAGEAnd this is a very important distinction. I'm not taking positions here unlike what the caller said. I'm trying to describe the lay of the land. And this is definitely an element that has to be understood and grappled with as we try to figure out what to make of these six cases. So a simple way to think about it would be, a whistleblower would be someone who is bringing to light government waste, fraud, abuse or wrong doing or incompetence or maleficent or misfeasance. And someone could do that and in the course of doing that, also, provide information that is classified. However not every leak involves that category of thing. There are also leaks of classified information in which there's no allegation of a government wrong doing.
SAVAGEAnd so that person -- someone who just leaked classified information without that overlay would not properly be considered a whistleblower. And one of the things that you find is that sort of open, you know, critics of what of the government is doing and advocates will say, everybody is a whistleblower. And the government, which doesn't want to be accused of cracking down a whistleblower will say, no one's a whistleblower. These guys are all not whistleblowers. And -- of course, there's something a little bit subjective in the middle there.
SAVAGEThere's cases which may or may not fall neatly into one category or the other. I would say that Mr. Kiriakou's in particular, is hard to put him into a defined category. Is he a whistleblower or is he not? He's not as clean a hit in that category as some of the other cases we've seen. I would say, most notably, Thomas Drake who was one of the first cases as administration brought. He was a NSA official who brought to light through Baltimore Sun enormous wastes of enormous amounts of money.
NNAMDIThat's one of the cases we'll be exploring in the next segment. Charlie Savage, thank you so much for joining us.
SAVAGEThank you very much for having me on.
NNAMDICharlie Savage is Washington correspondent for the New York Times. His beat covers national security and the law. We're going to take a short break. When we come back, we will talk with someone who was textbook whistleblower and someone who spoke out over many years through internal channels before going public with criticisms of the government's terrorism policies.
NNAMDIThat's coming up. If you'd like to join the conversation, call us at 800-433-8850 or go to our website, kojoshow.org. I'm Kojo Nnamdi.
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