Saturday, January 22nd | 20 Shevat 5782

June 13, 2011 6:44 pm

Leaks and More Leaks

avatar by Ed Koch


Julian Assange, from Wikileaks. Photo: Espen Moe.

Last year, Thomas A. Drake, a former employee of the National Security Agency (NSA), was originally charged with a felony under the Espionage Act, a crime subject to a penalty of 35 years.  His defense, in effect, was that he was a whistleblower.  Recently, Drake was given a plea agreement of a misdemeanor with an agreement by the prosecution that they, according to The New York Times of June 10, “would not oppose a sentence under which Mr. Drake would serve no time.”

Also, according to The Times, prosecutions against the media – Drake had given classified material to a reporter – prior to President Obama “have been extremely rare.”

The President, in my opinion and to his credit, responding to “a bipartisan belief in Congress…that leaks were getting out of hand,” has directed that five such criminal lawsuits be brought, and never more than one under any other president.

President Obama has been criticized because he “entered office promising unprecedented transparency but in less than three years in office has far outdone the security-minded Bush administration in pursuing leaks.”

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I received an e-mail from an op-ed writer for an article appearing in the Wall Street Journal which article discussed Drake as a whistleblower. My correspondence follows:

“Dear Mr. Mayor, Are whistleblowers heroes or knaves?  The answer would seem to depend upon some specific fact.  The Thomas Drake affair, which settled in a surprise plea-bargain on late Thursday, is a case study in ambiguities.  I explore them in Friday’s Wall Street Journal…All good wishes”

My response: “An employee who disagrees with his employer’s policy (he served in the National Security Agency) does not have the right to violate the law and provide classified information to a reporter.  Here, after trying to get the policy changed and failing to do so, his options were to go along notwithstanding his disagreement or quit.  I do not agree he was a whistleblower entitled to immunity from prosecution.  My question is, why hasn’t the WikiLeaker, Julian Assange, been indicted for receiving and publishing classified material? All the best.”

The plea bargain provided was offered “after Judge Bennett ruled last week that the government would have to show some of the allegedly classified material to the jury, prosecutors on Sunday withdrew four of the documents and redacted information from two others about N.S.A.’s targeting of a particular telecommunications technology.”

I believe in cases where there is no jury, the government would proceed showing the evidence “in camera,” so it would not be made public.  In jury cases, which would generally be the case, couldn’t the evidence be shown to jurors with an admonition by the court that they would be committing a criminal act if they made it public?  My guess is few if any jurors would later violate the law and expose themselves to criminal penalties.

I assume the government will bring a case against Julian Assange, who has violated the law with the distribution of hundreds of thousands of documents to the media.  Is the American public better off as a result of the leaks?  I think not.  Undoubtedly, too many documents are classified when they shouldn’t be.  Nevertheless, as a result, I believe at least in the case of Assange, lives may have been put at risk and our country’s ability to deal with other countries has been severely jeopardized.

President Obama deserves support for his ordered change in direction of the country vis-à-vis leakers of classified information.

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