Politics

The Lax, La La Land Approach To Leaking

The Justice Department announced the first prosecution of a leaker during Trump’s tenure.

By  
on

whisper secret lawyer lawyers whispering secretsOne of the most underemphasized, underreported, entirely ignored yet incredibly consequential crimes is the felonious leaking of classified information.

The communication of secret information to unauthorized persons is a felony meriting up to ten years’ imprisonment, and yet nearly every day we see felonies of this nature being committed cavalierly as “anonymous sources” provide the press with classified information.

Remarkably, both the media and the leakers fail to grasp the important rationale in criminalizing mistreatment of classified information. America’s secrets are deemed secrets for a reason.

Consider the events from just two short weeks ago. Twenty-two innocents — many young girls — lost their lives in a treacherous act of terrorism at an Ariana Grande concert in Manchester, England. Less than 48 hours later — as British authorities were pursuing the attackers and trying to avert any potential subsequent attacks — the New York Times published photographs of bomb parts used by the terrorists. Furious that the photos might impede their investigation, the United Kingdom temporarily stopped sharing certain intelligence with the United States.

That’s right — a felony leak directly inhibited the United States’ efforts at collecting intelligence and protecting the American people.

And yet leaks of this kind happen almost daily — oftentimes in a supposed attempt to undermine the Trump administration. Consider the case of Reality Winner.

On Monday, the Justice Department announced the first prosecution of a leaker during Trump’s tenure. Winner, a 25-year-old NSA contractor who had been working at a Georgia facility for just under four months, allegedly printed Top Secret information and mailed it to an online publication — assumed to be The Intercept — which published the NSA documents on its website.

Sponsored

Winner is reportedly a harsh critic of the president, passionately devoted to resisting Trump, who she called “the orange fascist.” Her apparent Twitter account features a retweeted “joke about government leaks,” according to the Daily Beast. In line with her light-hearted approach to a grave felony activity, the U.S. government alleges that during her arrest she casually “admitted intentionally identifying and printing the classified intelligence reporting” in addition to mailing it.

Confused by the whole matter, her family told the Daily Beast “I don’t know what they’re [the government’s] alleging.” And perhaps the family ought not be blamed for that since the press so often reports leaks in a nothing-to-see here fashion. Winner’s attorney says, “She’s just been caught in the middle of something bigger than her.”

Indeed, she has been caught in 18 USC § 793(e) of The Espionage Act.

Section 793(e) criminalizes (1) “unauthorized possession of, access to, or control over” (2) “information relating to the national defense” (3) which “the possessor has reason to believe could be used to the injury of the United States” and (4) “willfully communicates [this information] to any person not entitled to receive it.”

Unfortunately for Winner, if the facts as alleged are true, she should be a slam dunk prosecution, and she does not even have the slightest hint of a whistleblower defense. Mark Zaid, national security attorney, told the Daily Beast that the documents — which point to Russian efforts to interfere in our elections — have “absolutely nothing to do with any waste, fraud, abuse, or — more importantly — illegal U.S. government conduct to justify leaking it.”

Sponsored

Winner allegedly used her security clearance — attained after agreeing to “properly protect classified information” — as a weapon. A weapon against the president and a weapon against the United States.

Rather than applauding the prosecution of a leaker, many in the media appear to be lamenting it. New York Times reporter Adam Goldman told CNN, “This is a tough operating environment. There is a chill for sure. We’ll see how bad it gets.”

A chill? Shouldn’t we all be hoping for a chill of leaks? This is the only felonious activity where a chill is apparently not welcome.

And where was the outrage at President Obama’s historic prosecution of leakers? As Politifact confirms, Obama prosecuted more individuals under the Espionage Act than all previous administrations. Rightfully so. The Obama Justice Department went after individuals who had leaked information about North Korea and our efforts to stop Iran’s nuclear program. We should all applaud that.

Instead, some in the press are reporting leaks as casually as a tabloid throwing up a salacious headline. But amid all the concocted Russia allegations, remember this: “The real scandal here is that classified information is illegally given out by ‘intelligence’ like candy. Very un-American!” — President Donald Trump

kayleigh-mcenany-2017Kayleigh McEnany is a CNN political commentator. She is a graduate of Harvard Law School and Georgetown University’s School of Foreign Service, and she also studied politics at Oxford University. In addition to writing a column for Above the Law, she is a contributor for The Hill. She can be found on Twitter at @KayleighMcEnany.

Topics

, , , , , ,