The War on Leakers: National Security and American Democracy, from Eugene V. Debs to Edward Snowden

350 Pages·2016·2.27 MB·English

by  Lloyd C. Gardner

The War on Leakers
ALSO BY LLOYD C. GARDNER
Killing Machine: The American Presidency in the Age of Drone Warfare
The Case That Never Dies: The Lindbergh Kidnapping
The Long Road to Baghdad: A History of U.S. Foreign Policy from the 1970s to
the Present The Road to Tahrir Square: Egypt and the United States from the
Rise of Nasser to the Fall of Mubarak Three Kings: The Rise of an American
Empire in the Middle East After World War II Iraq and the Lessons of Vietnam:
Or, How Not to Learn from the Past (co-edited with Marilyn B. Young) The
New American Empire: A 21st Century Teach-In on U.S. Foreign Policy (co-
edited with Marilyn B. Young)

© 2016 by Lloyd C. Gardner All rights reserved.
No part of this book may be reproduced, in any form, without written permission from the publisher.
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Department, The New Press, 120 Wall Street, 31st floor, New York, NY 10005.
Published in the United States by The New Press, New York, 2016
Distributed by Perseus Distribution
LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA Names: Gardner, Lloyd C.,
1934– Title: The war on leakers: national security and American democracy, from Eugene v. Debs to
Edward Snowden / Lloyd C. Gardner.
Description: New York: The New Press, 2016. | Includes bibliographical references and index.
Identifiers: LCCN 2015027800 | ISBN 9781620970812 (e-book) Subjects: LCSH: Official secrets—United
States. | Government information—United States. | Leaks (Disclosure of information)—United States. |
Electronic surveillance—United States. | Democracy—United States. | National security—United States. |
BISAC: POLITICAL SCIENCE / Political Freedom & Security International Security. | POLITICAL
SCIENCE Political Freedom & Security Intelligence. | HISTORY United States 20th Century. | HISTORY
United States / 21st Century.
Classification: LCC JK468.S4 G37 2016 | DDC 364.1/31—dc23 LC record available at
http://lccn.loc.gov/2015027800
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Composition by dix!
This book was set in Electra
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For our five grandchildren, Jamie, Dylan, Kyle, Asha, and Naiya
CONTENTS
Introduction
1. From the Espionage Act to the National Security State
2. Where Ellsberg Fits In
3. The Great Transformation
4. Front Lines—Leakers and the New (Old) Journalism
5. Prosecutions and Principles
6. A Time of Testing Limits
7. A House Divided Against Itself
8. Afraid of Our Shadow (Government)?
Conclusion: Defending the Republic?
Notes
Index
INTRODUCTION
A building circular . . . The prisoners in their cells, occupying the circumference—The officers in
the centre. By blinds and other contrivances, the Inspectors concealed . . . from the observation of
the prisoners: hence the sentiment of a sort of omnipresence—The whole circuit reviewable with
little, or . . . without any, change of place. One station in the inspection part affording the most
perfect view of every cell.
—Jeremy Bentham, Proposal for a New and Less Expensive Mode of Employing and Reforming
Convicts (London, 1798)
The main theme of this book is the relationship among the so-called intelligence
community and the White House and Congress, and how that three-way
marriage has developed over the years since World War I. The 1917 Espionage
Act has now become the weapon of choice against leakers, but there has always
been a campaign against leakers and, inevitably entangled with it, a desire to put
leakers and protesters in the same bin as foreign spies and cast enforcement
actions in terms of a “balance” between liberty and security. Indeed, no one has
put this claim better than President Obama, who declared after the Snowden
revelations that it had become necessary to make Americans comfortable with
what had to be done. Critics of the intelligence community, on the other hand,
see the greatest threat as that posed to U.S. institutions under the Constitution.
The battleground has become the indictments under the 1917 Espionage Act,
which the Obama administration has invoked more times than any other
presidency. The long-standing campaign against leakers has now become a war.
Immediately after the first articles appeared drawing on Edward Snowden’s
enormous cache of government documents detailing the cooperation of tech
companies with government demands for access to metadata, President Obama
told a press conference on June 7, 2013, that he had come into office wary of the
NSA’s eavesdropping program. “I came in with a healthy skepticism about these
programs. My team evaluated them. We scrubbed them thoroughly. We actually
expanded some of the oversight, increased some of safeguards. But my
assessment and my team’s assessment was that they help us prevent terrorist
attacks.” Later in the summer, as what the president called the drip-drop of new
revelations challenging his statements that his pre-Snowden investigations got
the balance just about right, the president appointed a small panel of experts to
advise him on what further changes or reforms might be needed. It did so in
December 2013, and we will see that the results were not at all consistent with
claims that the program had prevented terrorist attacks.
The reactions of the president to questions about the National Security
Agency (NSA) programs, to leaks about the Senate Intelligence Committee’s
six-thousand-page report on torture of suspected terrorists in the George W.
Bush administration, and to the fate of leakers illustrate the second major theme
of the book: the effort of the White House not to get caught in a debate between
the intelligence community and Congress or between critics and the agencies
that carry out the programs. In regard to indictments under the Espionage Act
that his Department of Justice put forward in leaker cases, Attorney General Eric
Holder explained that many of these cases had orginated under the previous
administration and there would be a morale problem if they were called off. It
was an odd position to take, at least in some ways, because it suggests that no
administration can ever go back over its predecessor’s actions and set a new
course. Elections, then, could not be about change “you can believe in” in all
circumstances. It also suggests, therefore, that since 9/11 there has been a
fundamental shift in the balance of power within the federal government and it is
necessary now to talk about an “imperial presidency” rather than an “imperial
president.”
Obama had, in fact, explained that the limitations on a post-9/11 president in
managing the imperial presidency obliged him to avoid getting between the
intelligence community and its critics. “Part of my job,” he said in an interview
with ABC News several days before his inauguration, “is to make sure that, for
example, at the CIA [Central Intelligence Agency], you’ve got extraordinarily
talented people who are working very hard to keep Americans safe. I don’t want
them to suddenly feel like they’ve got to spend all their time looking over their
1
shoulders.”
This book will look over a lot of shoulders, going back to the enactment of
the Espionage Act in 1917 to discuss how the act was used to suppress dissent. I
will also examine how presidents have gradually become more and more
dependent on the intelligence community after World War II, by assigning it
more and more duties to keep America safe and becoming less independent of its
claims to immunity. Finally, this story turns again to the Espionage Act, as the