By JESSELYN RADACK
Edward Snowden should not be prosecuted for mishandling classified information, and certainly not under the Espionage Act.
The Justice Department has led an unprecedented crackdown on “leakers,” who more often than not are whistle-blowers — public servants who expose fraud, waste, abuse and illegality. (And information that has been classified to cover up government wrongdoing has not been properly classified.)
I represent John Kiriakou and Thomas Drake, who blew the whistle on two of the biggest scandals of the Bush administration — the use of torture, and secret domestic surveillance, respectively.
After disclosure of the warrantless wiretapping, the government retroactively legalized it and immunized the telecoms.
Torturers have been glorified in movies (which benefited from close government cooperation and a cascade of government leaks), written books divulging classified information (including sources and methods), and been given a pass by President Obama’s “look forward, not backward” policy.
Meanwhile, the government launched a series of Espionage Act prosecutions against the people in the intelligence and national security community who spoke out against the secret, dark side of U.S. conduct post 9/11.
The Espionage Act is a century-old law that is meant to go after spies, not whistle-blowers. The government dropped all the espionage charges against Kiriakou and Drake, but continues to use the Espionage Act as a blunt instrument to bankrupt, isolate, intimidate and silence whistle-blowers. Even when the government drops all felony charges against them, as it did in Drake’s case, the stigma of being labeled an “enemy of the state” is indelible.
As happens in every whistle-blower case, the government attacks the messenger rather than listening to the message. Whistle-blowers like Snowden are invariably smeared as being deviant misfits who are out for fame, profit, revenge, or self-aggrandizement. Already, Snowden has been called a “grandiose narcissist” and traitor, and he’s been public for 72 hours.
Focusing on Snowden is a distraction from the government’s law-breaking massive domestic surveillance program. Criminally prosecuting Snowden has little to do with Snowden’s alleged crimes and everything to do with making an example of him and sending the most chilling of messages to anyone even thinking about exposing government wrongdoing, especially criminality. There is no such crime as “leaking.” Snowden may have violated a secrecy agreement, which is not a loyalty oath but a contract, and a less important one than the social contract a democracy has with its citizenry.
A war on information that targets whistle-blowers and journalists is more characteristic of a totalitarian state than a free and open democratic society.