Analysis: Contractor charged with espionage presents political minefield for Trump

NSAAt first sight, the case of Reality Leigh Winner, a United States federal contractor who has been charged with leaking classified information to a news outlet, is an open-and-shut case. Winner, an expert linguist with a top-secret clearance, who provided services to the National Security Agency through a private contractor, appears to have admitted to the Federal Bureau of Investigation that she deliberately leaked classified information without permission. She is believed to have told the FBI that she printed and mailed a single document containing classified information to a news outlet on or around May 9 of this year.

WINNER’S MOTIVES

Although it is too early to tell with certainty, Winner does not appear to have acted in search of money or other material benefits, nor does she appear to have operated as an agent of a foreign government. She told her interrogators that she acted solely out of a sense of duty to the American people. However, US law does not typically distinguish between leakers based on their motives. It does, however, distinguish between simple leakers and whistleblowers. If a US government employee uncovers evidence of abuse of power, or becomes aware of a specific and critical threat to the security of Americans, he or she is required to notify his or her superiors. If the latter refuse to take action, then the employee is justified under the law in taking all necessary actions to warn the public of impending peril. That is precisely the function of the 1989 Whistleblower Protection Act, which affords protection to insiders who expose abuses of authority, or a concrete and critical threat to public safety.

IS WINNER A WHISTLEBLOWER?

It does not appear that Winner contacted her superiors prior to leaking classified information to the media. Nor does it appear that the leaked information pertained to a clear and present danger to the security of the public. It would follow that Winner cannot at present be classified as a whistleblower. It is worth keeping in mind, however, that Americans are traditionally skeptical of government. Often, therefore, government whistleblowers —people who expose government abuse or corruption— are rewarded, not punished. American history is replete with leakers who were publicly commended for speaking out, and were often justified in court, despite breaking the law. These include the Vietnam War-era cases of Ronald Ridenhour, a US Army soldier who exposed human-rights atrocities committed by troops in Vietnam, as well as Daniel Ellsberg, the world-famous leaker of the Pentagon Papers. More recently, the US courts sided with Thomas Drake, a senior executive of the NSA, who came out against the interception of Americans’ communications after 9/11. All this is to say that, even if Winner clearly broke the law, it does not follow that she will be punished for doing so.

THE USE OF THE ESPIONAGE ACT

There are certainly plenty of laws and statutes that could have been used to discipline Winner. The Department of Justice did not have to resort to the Espionage Act, which is rarely used in cases of leaks to the media. The reason is that the American political system traditionally relies on frequent leaks to the media by government insiders. It is an aspect of American public life that is tacitly seen as a pillar of the country’s system of checks and balances —a peculiarly American form of democratic accountability. However, the Trump administration has been plagued by an unprecedented barrage of leaks in its first six months in office, so it is not surprising that the Department of Justice has chosen to resort to the Espionage Act, undoubtedly in an attempt to make Winner an example for other aspiring leakers.

But, if the government proceeds with the prosecution under the Espionage Act, Winner’s case is likely to become very political, given the sensitivity of the subject of Russia’s alleged intervention in the 2016 US presidential elections. To further-complicate this already intricate subject, it must be noted that US President Donald Trump appeared to support leaks of classified government information when he was a presidential candidate: in October 2016, he uttered the (in)famous sentence, “I love WikiLeaks”, shortly after the self-styled whistleblower website illegally disclosed private emails belonging to his rival for office, Hillary Clinton.

To be clear, Winner’s disclosure does not provide evidence that Russian intelligence services were able to alter the outcome of the US presidential election, only that they may have sought to do so. However, given the sensitivity of the subject, and its importance in the current state of US politics, it would be wise for the US government to promptly disclose any and all documents on the topic —if only to prevent further censure from an increasingly skeptical electorate. As one American commentator noted, if “the Russians already know this information, so why shouldn’t Americans?”. Indeed. Pursuing Winner’s conviction under the Espionage Act, while at the same time refusing to address the concerns caused by her disclosure, would be the worst possible way forward for the Trump administration, as it tries to navigate the troubled waters of American politics.

Author: Joseph Fitsanakis | Date: 07 June 2017 | Permalink

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