“The Obama administration has used the Espionage Act to go after whistle-blowers who leaked to journalists … more than all previous administrations combined.” -- Jake Tapper during a broadcast Jan. 2 of CNN’s “The Lead with Jake Tapper”
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 media. 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. During an 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 whistle-blowers who leaked to journalists … more than all previous administrations combined.”
On one level, a simple tally backs 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 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.
Columbia University law professor David Pozen has researched the culture of unauthorized disclosures in the nation’s capital and said that generally there has been an uptick in these prosecutions under Obama.
“The spirit of the (Tapper) assertion is correct,” Pozen said.
The whistle-blower label debate
The Justice Department does not quibble about the number of prosecutions, but in a statement to PolitiFact, 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 on allegations he provided information about North Korea to Fox News. Later that year, Jeffrey Sterling, a Central Intelligence Agency officer, was indicted on allegations he shared information with a journalist, James Risen, about America’s work to counter Iran’s nuclear program. Both defendants have pleaded 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 the Cornell University School of Law defines a whistle-blower 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.
We raised this issue of who is and isn’t a whistle-blower 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 whistle-blowers,’ instead of just ‘whistle-blowers,’ ” Tapper said. “If for no other reason than the focus would be on the administration’s aggressive use of the Espionage Act to clamp down on whistle-blowing 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 with three times before he took office.
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 say these cases are not really his prosecutions. That doesn’t affect the technical accuracy of Tapper’s claim, though.
Our ruling
Tapper said more than all previous administrations combined, the Obama administration has used the Espionage Act to go after whistle-blowers who leak to journalists. The number of cases involving that law support Tapper’s statement. There is reasonable debate over whether the whistle-blower label applies to all cases, and Tapper said he could have been more precise.
The Justice Department does not challenge the basic figures, however, and the experts we contacted affirmed the general accuracy of the claim.
We rate the statement True.
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