At the time federal judge Alexander Williams Jr. of the U.S. District Court of Maryland sentenced former FBI translator Shamai Leibowitz for disclosing supposedly classified information to a blogger, even Judge Williams did not know the nature of the information Leibowitz disclosed. The New York Times reports that Judge Williams said at sentencing:
All I know is that it’s a serious case. . . I don’t know what was divulged other than some documents, and how it compromised things, I have no idea.
Nonetheless, the Justice Department deemed the information secret enough to warrant prosecuting Leibowitz under the Espionage Act. Leibowitz was a target of the Justice Department's war on whistleblowers, and he pleaded guilty to disclosing classified information to a blogger. In a recent interview with the New York Times, the blogger – identified only anonymously in court papers, but now revealed to be Richard Silverstein – claims Leibowitz:
. . . passed on secret transcripts of conversations caught on F.B.I. wiretaps of the Israeli Embassy in Washington. Those overheard by the eavesdroppers included American supporters of Israel and at least one member of Congress . . .
The fact that the FBI spied on the Israeli embassy is hardly a shocking revelation:
While treated as highly classified by the F.B.I., the fact that the United States spies on Israel is taken for granted by experts on intelligence.“We started spying on Israel even before the state of Israel was formally founded in 1948, and Israel has always spied on us,” said Mr. [Matthew] Aid, the author. . . .Douglas M. Bloomfield, an American columnist for several Jewish publications, said that when he worked in the 1980s for the American Israel Public Affairs Committee, a lobbying group, he assumed that communications with the embassy were not private.
“I am not surprised at all to learn that the F.B.I. was listening to the Israelis,” he said. “But I don’t think it’s a wise use of resources because I don’t see Israel as a threat to American security.”
Leibowitz explained his motivation – which was certainly not to harm national security – in general terms at his sentencing:
During the course of my work I came across wrongdoings that led me to conclude this is an abuse of power and a violation of the law. I reported these violations to my superiors at the FBI who did nothing about them.
Silverstein told the Times what he thought Leibowitz's specific concerns were:
“I see him as an American patriot and a whistle-blower, and I’d like his actions to be seen in that context,” Mr. Silverstein said. “What really concerned Shamai at the time was the possibility of an Israeli strike on Iran, which he thought would be damaging to both Israel and the United States.”
Whatever your view of the FBI's spying on a friendly embassy or of Leibowitz's concerns and disclosure, criminal prosecution under the Espionage Act – a law meant to go after spies not whistleblowers – is not the way to treat government employees who act out of conscience.
Silverstein coming forward – no doubt at personal risk – in defense of Leibowitz is an indicator of just how far out on a limb the Justice Department is on its record-breaking number of Espionage Act prosecutions for alleged "leaking." It calls to mind former George W. Bush Administration classification czar J. William Leonard coming forward to defend National Security Agency whistleblower Thomas Drake, another target of the Justice Department's war on whistleblowers. Individuals aren't the only ones weighing in against the Justice Department. The New York Times, L.A. Times, and Washington Post have all ran editorials (here, here, and here) critical of the Justice Department's treatment of Drake.
The Justice Department's policy of going after so-called "leakers" – who are more often than not whistleblowers – using the Espionage Act has an immense and unnecessary chilling effect on employees who see wrongdoing. When so much information about our national security is kept secret and the government persists in "classifying" embarrassing misconduct, we need whistleblowers to keep the public informed about what our government is doing in the name of national security.
Jesselyn Radack is National Security and Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.