New Approach Needed in Leak Investigations
As all eyes turn toward the trial of Private Bradley Manning, who stands accused of espionage for downloading hundreds of thousands of classified documents that were subsequently published by Wikileaks, PEN American Center has written to President Obama to protest the increasingly aggressive nature of leak investigations under this administration, and to raise concerns about the impact of those investigations on press freedom and freedom of information in the U.S. and internationally.
PEN’s letter cites the recent widespread and justifiable outrage over the Justice Department acquisition of records of the phone calls and even movements of AP and Fox News reporters in leak investigation:
This reaction stems in part from the action itself, which appears to have violated the Justice Department’s own guidelines for seeking information from reporters in leak investigations. But it also reflects legitimate and growing concern, both domestically and internationally, over a pattern of aggressive leak investigations that threatens to tip the balance toward secrecy and away from a First Amendment-protected society in which citizens are equipped to understand the workings, and evaluate the actions, of their own government.
It also expresses alarm about the overall surge in prosecutions of alleged leakers under the Espionage Act. Private Manning is one of six people who have been charged under the rarely-invoked 1917 law since President Obama took office in 2008. PEN’s letter specifically references the prosecution of National Security Agency Senior Advisor Stephen Jin-Woo Kim, who stands accused of leaking U.S. intelligence agency assessments that North Korea might conduct another nuclear test if sanctions against the country were expanded. Noting that such information “is routinely reported in the U.S. media, and was clearly delivered with the purpose of communicating it not to an enemy state but to the American public,” PEN writes, “To call this espionage is to expand the definition of spying and government secrecy beyond recognition.”
As opening arguments got underway in the Manning trial this week in Fort Meade, the question of whether or not Manning’s actions constituted spying—a charge that could bring a life sentence—took center stage, with prosecutors arguing that the leaked Defense and State Department documents found their way into Osama bin Laden’s hands. But in offering to plead guilty to lesser charges that could still bring a 20-year prison term, Manning has insisted that his intention was to bring information about the “true costs of war” that would “spark a domestic debate on the role of the military and our foreign policy in general as it related to Iraq and Afghanistan.”
In appealing to President Obama to review the scope and tenor of leak investigations, PEN warns in particular of “the threat that overly-aggressive leak investigations in the United States pose for our colleagues working in countries with closed and anti-democratic regimes.”
PEN’s international case list already includes many writers and journalists who have been targeted for conveying or reporting information their governments proclaimed as secrets. In China, Shi Tao is serving a 10-year sentence for “illegally divulging state secrets abroad” for describing the contents of a propaganda department directive to censor press coverage of the 15th anniversary of the Tiananmen Square crackdown. In Iran, Mohammad Davari is serving a six-year sentence for “propagating against the regime” for reporting on widespread complaints of abuse and rape of inmates at Kahrizak Detention Center. In Cuba, journalist José Antonio Torres is serving a 14-year prison term for espionage after writing articles about the mismanagement of several development projects for a government newspaper.
In campaigning for these and many other journalists and writers, PEN has counted on, and has been grateful for, the support of the United States, which has stood as a beacon of press freedom and has been one of its most powerful advocates internationally. But as reports mount that U.S. journalists are coming under Justice Department scrutiny for carrying out their work, that status is threatened: regimes that are only too eager to spy on and criminalize journalists will be quick to point to the investigations of journalists in the United States as justification for their own actions.