I’ve represented a number of national security and intelligence officials across the Obama, Trump, and Biden administrations in “leak” investigations and prosecutions. I have criticized the fact that many of those cases transpired under the draconian, antiquated Espionage Act and targeted government employees for alleged press disclosures made in the public interest. And I have also condemned those cases for being politicized against people who exposed America’s darkest (and often illegal) secrets, including torture, warrantless domestic surveillance, and civilian drone strikes.
Defendants included U.S. Army whistleblower Chelsea Manning; CIA whistleblowers Jeffrey Sterling and John Kiriakou; and NSA whistleblowers Thomas Drake, Edward Snowden, and Daniel Hale. In my opinion, these cases were politicized against leaks that embarrassed the government, exposed its ineptitude, or revealed illegal conduct. But that is a far cry from what Director of National Intelligence Tulsi Gabbard is threatening to do. She recently announced that she has ordered an investigation into “politically motivated leaks."
There’s a big difference between politicizing prosecutions against leakers versus prosecuting politically motivated leaks. Politicized prosecutions against leakers, largely brought under the problematic Espionage Act, have at least contained the fig leaf of allegations that defendants mishandled national defense information, communicated it to someone not authorized to receive it, and wanted to (or knew that they would or could) harm national security. https://www.salon.com/2024/12/15/was-prosecuted-under-the-espionage-act—now-hell-turn-it-against-his-enemies/. The government said Espionage Act defendants endangered American troops (Drake), compromised covert operatives (Kiriakou), and put American lives at risk and caused irreparable harm to national security and diplomacy (Manning). Even though these claims were mostly shown to be hyperbolic and false, the government perpetuated them in public statements and in court.
Ironically, in Espionage Act cases, a defendant’s motivation does not come into play until the sentencing phase. It doesn’t matter if someone leaked to score political points, or whether they did so because it was in the public’s interest to know what their government was doing in secret. Thus, while the government was not typically required to prove an intent to harm national security (or actual harm to national security), in order to win an Espionage Act conviction, the government still clung to the “damage to national security” narrative. To abandon that narrative would imply that the leak prosecutions were simply an attempt to silence whistleblowers and chill the journalists who published their stories.
Gabbard’s pursuit of politically motivated leaks, however, flies directly in the face of the First Amendment. The First Amendment actually elevates political speech above all other forms of individual expression. While there are a number of categories of unprotected speech (obscenity, true threats, incitement, defamation, etc.), political speech — no matter how outrageous or offensive — is still protected from government action.
Her new anti-leak fervor also flies in the face of her previous positions, which adds to the sting of her recent proclamations. As a member of Congress, she took principled and controversial positions opposing mass surveillance, opposing the prosecution of Wikileaks’ Julian Assange, supporting a pardon of my client Edward Snowden, and introducing legislation to reform the Espionage Act. While conceding that Snowden broke the law, she repeatedly and poignantly refused to call him a traitor during her confirmation hearing — and pointed out that he exposed illegality by the government.
Now, she erroneously and disingenuously claims that “such leaks have become commonplace with no investigation or prosecution.” As a member of the U.S. House of Representatives for Hawaii from 2013-2021, she was clearly aware of the investigations and charges against Snowden (2013), Reality Winner (2017), Julian Assange (2018), Terry Albury (2018), Joshua Schulte (2020) and Hale (2021) – as well as the upward trend of their sentences and actual time in prison.
Sadly, the one consistency in Gabbard’s new position on punishing leaks is the degree to which it falls in line with the anti-leak hysteria recently exhibited by her cohorts in the military and national security arenas. For example, look no further than the Department of Homeland Security’s Kristi Noem — who leads the sisterhood of the unraveling rants on leak paranoia. The most recent example is white house advisor elon musk threatening Pentagon employees with prosecution for leaking information about a meeting in which Musk would get briefed on U.S. military plans for any potential war with China. Both the Pentagon and Trump confirmed the meeting. trump denied it was about China, though further leaks revealed that it in fact was. in any event, musk’s theoretical basis for prosecution is that it was “maliciously false information,” which sounds more like a sloppy formulation of defamation law, but not a crime.
As with Noem, I suspect Gabbard and musk’s tough talk on leaks is really driven not by the fear that leaked information is ipso facto dangerous, but rather that the person wanting to hide it is. Following Trump’s propensity for projection, perhaps it is Gabbard’s and musk’s newfound positions that are politically-motivated, not the leaks they are promising to plug.
