As David Carr reported at the New York Times, the White House is using the Espionage Act to prosecute leaks to the media. Dan Kennedy explored the issue of aggressive prosecution further this morning at the Huffington Post. As both Carr and Kennedy observed, this White House has used the Espionage Act six times during this presidency. Prior to 2009, it has been used 3 times in total since it was passed in 1917.
Putting the questions of whether Wikileaks is open government or deserves to be on a list of the top 10 Gov 2.0 initiatives aside, let’s be clear on a critical issue: prosecuting citizens who share information about billions of dollars of government fraud, corruption or criminality undermines open government initiatives.
Open government should not and cannot risk national security, despite what proponents of radical transparency might advocate. If the release of open data leads to such outcomes, the death of open government won’t be far behind. Those that choose to risk the lives of diplomats, human rights workers and service members abroad through willful leaks of locations or cables are legitimate targets of the Espionage Act.
If open government is truly about transparency and accountability, however, whistleblowers whose actions do not meet the standard of putting lives at danger should be protected. For instance, is Thomas Drake an enemy of the state because he went public about billions of dollars that were being wasted in “financial waste, bureaucratic dysfunction, and dubious legal practices in N.S.A. counterterrorism programs?”
Last year, I talked with Drake specifically about his case; our interview is embedded below. Judge for yourself whether his actions fit the standard laid out above — and keep in mind the following details from Carr as you watch:
When his agency was about to spend hundreds of millions of dollars on a software program bought from the private sector intended to monitor digital data, he spoke with a reporter at The Baltimore Sun. He suggested an internally developed program that cost significantly less would be more effective and not violate privacy in the way the product from the vendor would. (He turned out to be right, by the way.)
He was charged with 10 felony counts that accused him of lying to investigators and obstructing justice. Last summer, the case against him collapsed, and he pleaded guilty to a single misdemeanor, of misuse of a government computer.
While the Obama administration deserves credit for federal open government initiatives, on this count the actions of its Justice Department undermine both the efforts of public servants trying to act in good faith and those of investigative journalists trying to serve the public trust, along with leaving it open to charges of hypocrisy on open government promises or veneration of are correspondents who have been killed abroad.
As David Carr points out, that’s problematic on several levels:
These kinds of prosecutions can have ripples well beyond the immediate proceedings. Two reporters in Washington who work on national security issues said that the rulings had created a chilly environment between journalists and people who work at the various government agencies.
During a point in history when our government has been accused of sending prisoners to secret locations where they were said to have been tortured and the C.I.A. is conducting remote-controlled wars in far-flung places, it’s not a good time to treat the people who aid in the publication of critical information as spies.
Whistleblowers that focus upon waste and corruption, where the risk is primarily to those guilty of bureaucratic incompetence, cost overruns, environmental degradation, safety hazards or rigged procurements, should be people that the White House uses its considerable power to protect, not prosecute. That’s why whistleblower and retaliation protections exist under the law.
If, Ralph Nader said, information is the currency of democracy, perhaps our elected leaders should take action to ensure that those who risk their careers by sharing direct threats to the public interest are not made beggars.