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The federal criminal charges filed against National Security Agency leaker Edward Snowden make it seven times that the Obama administration has used the Espionage Act against government workers who shared information with the press. In at least two instances, the government’s investigations have delved into the practices of reporters and news organizations and put reporters in legal jeopardy.
This has raised red flags among defenders of the media. In a vigorous exchange on CNN’s The Lead, host Jake Tapper asserted to Ruth Marcus of the Washington Post that "the Obama administration has used the Espionage Act to go after whistleblowers who leaked to journalists ... more than all previous administrations combined."
On one level, a simple tally would address Tapper’s claim and -- spoiler alert -- the raw numbers back him up. But a scrupulous vetting of the record uncovers important ambiguities in the entire business of talking about leaks in Washington.
The basic numbers
Most tallies, like the one by the investigative service ProPublica, begin with Daniel Ellsberg and the release of the Vietnam War era documents known as the Pentagon Papers. Including Ellsberg, the government has used the Espionage Act 10 times to prosecute government workers who shared classified information with journalists. If we push back to 1945, there is one more case. So of those 11, seven have taken place while Barack Obama has been president.
Law professor David Pozen at Columbia University, has researched the culture of unauthorized disclosures in the nation’s capital and said generally, there has been an uptick in these prosecutions on Obama’s watch..
"There’s not really any doubt," Pozen said."The spirit of the assertion is correct."
The whistleblower label debate
The Justice Department does not quibble about number of prosecutions but in a statement to PunditFact, the department said: "It is definitely not the case that anyone who leaks classified information is a whistleblower. Very few of those prosecuted in recent years for unauthorized disclosures even sought to be considered that way."
To take a couple of examples, in 2010, State Department contractor Stephen Kim was indicted for providing information about North Korea to Fox News. Later that year, Jeffrey Sterling, a Central Intelligence Agency officer, was indicted for sharing information with a journalist James Risen about America’s work to counter Iran’s nuclear program. Both defendants have pled not guilty.
There is little suggestion that whatever they might have revealed had to do with any government abuse or that the leakers wanted to raise broad policy concerns. The Legal Information Institute at Cornell School of Law defines a whistleblower as "an employee who alleges wrongdoing by his or her employer of the sort that violates public law or tends to injure a considerable number of people."
No matter how broadly interpreted, Kim and Stirling don’t seem to fit that definition. In a statement given to ProPublica, the Justice Department said it does not target whistleblowers who follow the rules, but "we cannot sanction or condone federal employees who knowingly and willfully disclose classified information to the media or others not entitled to receive such information."
We raised this issue of who is and isn’t a whistleblower with Tapper and he said in the fast pace of a live interview, he might have wanted to use slightly different words to make his point.
"It would be better to say ‘leakers, many of whom are seen as whistleblowers,’ instead of just ‘whistleblowers’," Tapper said. "If for no other reason that the focus would be on the administration’s aggressive use of the Espionage Act to clamp down on whistleblowing and journalism that holds the U.S. government accountable."
As for the claim, though, it does not matter much. If you pull out the Kim and Stirling cases, by the same standard, you’d likely drop one of the pre-Obama cases too and that would still leave the Obama administration using the Espionage Act five times compared to three times before he took office.
The mechanics of prosecutions
Other factors could muddy the tally. The Obama administration inherited two of the cases from President George W. Bush’s Department of Justice. The indictments took place under Obama but "the wheels started turning before him," Pozen said. So potentially, someone could argue that these cases are not really his prosecutions. On the other hand, that doesn’t affect the technical accuracy of Tapper’s claim.
In addition, administrations have a variety of ways to crack down on unauthorized disclosures. Tapper’s focus on the Espionage Act might be accurate, but it overlooks other tactics used by previous White House regimes, said Elizabeth Goitein of the Brennan Center at New York University School of Law.
"Instead of criminally prosecuting media leaks, the government has relied on administrative sanctions and penalties," Goitein said.
These are extremely difficult to track because just about all of the details are protected by personal privacy laws.
Goitein pointed to other laws that can and have been brought to bear, including Section 641 of Title 18 in the U.S. Code. It prohibits theft of government property. It was used in 2002 against a Drug Enforcement Agency official who gave sensitive, not classified, information to a London newspaper. While capital punishment isn’t an option, in other respects, a conviction under Section 641 can be just as harsh as a violation under the Espionage Act. But neither a charge of theft nor an administrative sanction change the accuracy of the specific details in Tapper’s claim.
A look at the reasons behind the uptick under Obama lies outside the scope of this fact-check. For a complete discussion, we recommend Pozen’s recent article, "The leaky leviathan:Why the government condemns and condones unauthorized disclosures of information." Among other factors, digital technology both makes leakers easier to find and opens the door to disclosures on a grand scale as in the Chelsea Manning and Edward Snowden cases.
Tapper said more than all previous administrations combined, the Obama administration has used the Espionage Act to go after whistleblowers who leak to journalists. The number of cases involving that law support Tapper’s statement. There is reasonable debate over whether the whistleblower label applies to all cases and Tapper said he could have been more precise.
However, the Justice Department does not challenge the basic figures and the experts we contacted affirmed the general accuracy of the claim.
We rate the statement True.
CNN, The Lead with Jake Tapper, Jan. 2, 2013
Legal Information Institute, Definition of whistleblower, Cornell School of Law
United States Code, Intelligence Community Whistleblower Protection Act, 1998
Congressional Research Service, The Whistleblower Protection Act: An overview, March 12, 2007
Committee to Protect Journalists, The Obama Administration and the Press: Leak investigations and surveillance in post-9/11 America, Oct. 10, 2013
Department of Justice, Statement of Lisa Monaco, assistant attorney general, Senate Select Committee on Intelligence, Feb. 9, 2012
Harvard Law Review, The leaky leviathan:Why the government condemns and condones unauthorized disclosures of information, December 2013
Washington Post, A rare peek into a Justice Department leak probe, May 19, 2013
ProPublica, Charting Obama’s crackdown on national security leaks, July 30, 2013
New York Times, Blurred line between espionage and truth, Feb. 26, 2012
New York Times, Leak offers look at effort by U.S. to spy on Israel, Sep. 5, 2011
Time Magazine, ARMED FORCES: The Nation Can Relax, July 8, 1957
Sarasota Herald Tribune, Crusading Colonel Nickerson’s court martial to start Tuesday, June 20, 1957
Placide D. Nicaise, self published, Huntsville and the von Braun Rocket Team, 2003
Interview, David Pozen, law professor, Columbia University School of Law, Jan. 8, 2014
Email interview, Elizabeth Goitein, co-director, Brennan Center’s Liberty and National Security Program, New York University School of Law, Jan. 7, 2014
Interview, Brian Fallon, Office of Public Affairs, U.S. Department of Justice, Jan. 7, 2014
Email interview, Bob Turner, professor, Center for National Security Law, Univ. of Virginia Law School, Jan. 8, 2014
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