- The Washington Times - Tuesday, January 24, 2012

The Obama administration is using a century-old anti-spying law to prosecute federal workers for leaking secrets to the media, drawing criticism that the law is draconian and the prosecutions are chilling efforts to report news.

On Monday, former CIA officer John Kiriakou, 47, became the sixth person charged since 2009 under the 1917 Espionage Act, a broad law hurriedly enacted as the United States was entering World War I.

He is accused of telling reporters the names and classified details about the service of two CIA colleagues with knowledge of the agency’s practice of waterboarding — a form of simulated drowning that the Red Cross says is torture. If convicted, he faces up to 30 years in prison and a $1 million fine.

“These six individuals are not spies, and they are not traitors. They are news sources,” said Steven Aftergood, head of the Project on Government Secrecy at the Federation of American Scientists.

“They are all whistle-blowers, who because they work in the national security and intelligence field, are not protected” by the whistle-blowing law, said Jesselyn Radack of the Government Accountability Project, a nonprofit watchdog group.

Individuals in other agencies who come across lawbreaking, waste or fraud are protected by law and have special channels for making disclosures about the abuse, she said.

“Whistle-blowers who work in national security or intelligence do not have a place to go,” she said, adding that they are driven to using the media by the few other options to expose wrongdoing.

The repeated use of a broad, draconian measure like the Espionage Act also is having a chilling effect on news organizations’ ability to do their job, Mr. Aftergood said.

“These prosecutions will have grave consequences, not just for the individuals concerned, but for the quality of information Americans receive in the news, especially about national security matters,” he said.

Two of those prosecuted under the Espionage Act have pleaded guilty. The other four cases are pending, including that of Army Pfc. Bradley E. Manning, who is awaiting a decision on whether he will be court-martialed on charges of giving classified documents to the anti-secrecy website WikiLeaks.

The case of Steven Kim, a former State Department contractor, is at a pretrial stage and is not expected to be heard before September, according to court documents.

The case of Jeffrey A. Sterling, another former CIA official accused of leaking to a reporter, is on hold while prosecutors appeal several of the judge’s pretrial rulings.

Thomas Drake, a former National Security Agency executive, pleaded guilty to a misdemeanor charge involving no allegations of leaking classified information after facing 35 years in prison if convicted on charges under the Espionage Act.

“They pile on the charges, hoping you will cave in and plead out,” Mr. Drake told The Washington Times.

“He exposed what we can only call torture,” he added of Mr. Kiriakou.

“Each of these cases has a different fact-set,” said Mr. Aftergood. “What unites them is that there was a clear public interest in the information that was leaked coming to light.”

In 2007, Mr. Kiriakou became one of the first former CIA employees to openly confirm and discuss the use of waterboarding against high-ranking al Qaeda terrorism suspects.

But prosecutors say the investigation of his actions was not sparked by any news reports. Rather, the CIA filed a crimes report after the names of two agency employees turned up in sealed classified filings made by lawyers representing high-value detainees held at the detention facility at U.S. Naval Base Guantanamo Bay, Cuba. Later, photographs of one of them turned up in the possession of a Guantanamo detainee.

The charging documents state that an unnamed journalist, having learned the identity of a CIA officer from Mr. Kiriakou, immediately passed that information on to an investigator working for the defense lawyers.

The charging documents state that the defense team did nothing illegal in identifying the officers in their filings, and even in showing photographs of one of them to detainees, since the pictures were part of a photo lineup and no information was given about who the photos showed.

“No laws were broken by the defense team,” the Justice Department ruled.

Not everyone agrees that the matter should rest there.

Rep. Peter T. King, New York Republican and the chairman of the House Homeland Security Committee, called this week for the Justice Department to name the reporters, lawyers and investigators who are not identified in the complaint.

Officials should identify everyone “involved in this grave breach of wartime national security,” Mr. King said in a statement.

“Beyond criminal legal liability, there is the question of moral culpability,” he said. “The American people deserve to know exactly who has willingly endangered the lives of American intelligence officers.”

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