In the aftermath of Edward Snowden’s historic disclosures and flight from the United States, many Americans took to the airwaves and social media to argue, dissect his choices, and opine on his possible motives. Was he a coward? A hero? A traitor? A patriot?
The issues evoked in those debates are at the heart of Lloyd C. Gardner’s The War on Leakers. Gardner, an emeritus diplomatic historian at Rutgers, attempts to set the Obama White House’s prosecutorial assault on those who disclose classified information—most especially Snowden—in a historical context, highlighting the administration’s use of the 1917 Espionage Act against whistle-blowers and other leakers.
The Espionage Act, it turns out, is a great name but not a very good law. Passed just after America entered World War I, it prohibits the sharing of “defense information” with anyone “who is not authorized” to receive it, regardless of intent. That’s not what most people consider spying—it’s leaking.
The federal government has shown that it knows the difference. The more carefully crafted 1978 Foreign Intelligence Surveillance Act (FISA), which circumscribes the state’s power to surveil “agents of a foreign power,” defines its quarry as “any person who knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power.” In other words, an honest-to-goodness spy.
But the vagueness at the heart of the Espionage Act stands, and it erases the meaningful difference between those who collect sensitive intelligence for the benefit of a foreign power and those who share information with journalists or the public without the intent to harm the United States or aid its enemies. That vagueness empowers federal prosecutors who do not or cannot see the difference.
The Obama White House has used this law more aggressively than any prior administration, often to go after leakers whom no one mistakes for spies, and The War on Leakers is written from within the ideological bunker of Snowden sympathizers. While Gardner begins his narrative in the early-twentieth century, the largest portion of the book is consumed with Snowden’s case.
Gardner argues that, even though previous White Houses established ample precedent for the use of the Espionage Act to wage war against dissent and suppress bad news they would rather not face in public, President Obama has pursued this strategy with a
singular ruthlessness. These are timely and urgent observations. Indeed, they have been made already by journalists, in print and in person, many of whom Gardner relies on.
While the main argument of Gardner’s book is unassailable, the author is at times careless in presenting it, making casual asides and sweeping statements that elide complexity, nuance, and accuracy.
These drive-by assertions can distract readers who have more than a cursory acquaintance with the recent history of government leaks and potentially mislead those who do not. For instance, those who have followed Snowden’s exploits may pause when Gardner claims that Snowden “supplied the information [he removed from the NSA] not to any specific enemy but to everyone on earth.” In fact, he supplied the volumes of classified information he lifted to just two journalists, and most of it has never been shared with the public.
Likewise, anyone tracking the national-security state might chafe at the claim that the Espionage Act “has been used not against spies, but against those who expose the secrets of what is now called the intelligence community,” a broad-brush allegation that ignores the law’s use in successful prosecutions of Aldrich Ames, Robert Hanssen, and many others—even Julius and Ethel Rosenberg, whose trial Gardner mentions.
Others will be taken aback by Gardner’s assertion that “from the early days of the Cold War, Congress—despite a few displays of outrage along the way—has largely agreed that it lacks the expertise and knowledge to carry out its oversight mandates.” This claim disregards the legislative branch’s actual record of good and important oversight work, including the Church and Pike Committees, the Watergate Committee, and Congress’s investigation of the Iran-Contra affair. Nor will students of American spycraft be impressed by Gardner’s fumbling of basic concepts in the field, as when he classifies the NSA’s network-exploitation programs as initiatives in human intelligence, or “HUMINT,” when they are, in fact, “SIGINT”—i.e., intelligence gathered from signals.
Gardner does occasionally produce gems of insight that can seem worthy of entire books of their own. Here, for instance, is how he characterizes the dilemma facing President Obama, champion of government transparency, after Snowden’s NSA revelations: “President Obama was now ensnared in a historical quandary that went back to World War II and the origins of the national security state. It began in 1945, when early expectations of perfect security after Hiroshima had quickly evaporated. Instead, the bomb had made Americans feel less secure.” The same could be said of the Internet, created by darpa and now the vehicle for cyberattacks, surveillance, and information theft on a scale previously unimaginable. In the name of sleeping peacefully, we Americans do seem to have a knack for inventing our own worst nightmares.
The information revolution has also empowered prosecutors, a point Gardner fails to give any significant consideration. Could it be that the Obama administration is prosecuting leakers, not because it resents leaks or despises the press more than any previous administration, but because it is better equipped to find and catch the leakers?
This neglected question, along with those that Gardner does raise as he marshals his indictment of the Obama intel regime, calls for careful and thorough examination and analysis rather than knee-jerk condemnation. Here’s hoping that more such work will come in the wake of The War on Leakers.
Justin Rood is director of the Congressional Oversight Initiative at the Project on Government Oversight.
