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Yesterday before the Senate Judiciary Committee, Attorney General Eric Holder defended his choice to appoint two U.S. attorneys to investigate the latest "leaks" and again rejected calls from Committee Members to appoint a more independent special counsel. Congress is understandably outraged at the Obama administration's hypocrisy of waging an unprecedented war on whistleblowers using the archaic Espionage Act while feeding pro-government information to the media.
However, despite that we might want to react with relief that finally Congress has recognized the Obama administration's hypocrisy in its position on disclosures, Congress should use caution in drafting any broad anti-leak measure. The all-too-real danger is that an anti-leak law will be used against whistleblowers and to stifle dissent and critics. That is why President Clinton vetoed a broad anti-leak law in 2000.
A couple of points are worth reiterating.
(1) There is properly classified information that should not be disclosed publicly, such as troop movements and the identities of undercover agents.
(2) Not all "leaks" are created equal. There is a difference between "leaking" and whistleblowing, which I've written on extensively.
Unfortunately, the terms "leaking" and "whistle-blowing" are often used synonymously to describe the public disclosure of information that is otherwise secret. Both acts have the effect of damaging the subject of the revelation. But leaking is quite different from blowing the whistle. The difference turns on the substance of the information disclosed. The Whistleblower Protection Act protects the disclosure of information that a government employee reasonably believes evidences fraud, waste, abuse or a danger to public health or safety. But far too often, whistle-blowers are retaliated against, with criminal prosecution being one of the sharpest weapons in the government's arsenal.
(3) Despite the fact that, as Members of Congress on both sides of the aisle have pointed out in the past weeks, classified information appears on the front pages of American newspapers every day, the Obama administration has only prosecuted low and mid-level officials, who are usually whistleblowers. Worse, the Obama administration has used the heavy-handed Espionage Act to prosecute whistleblowers, thereby threatening them with decades in prison and labeling them spies, a label that distances whistleblowers from their natural allies. The Obama administration has brought more Espionage Act prosecutions for alleged mishandling of classified information than all past presidents combined.
While recognition of the Obama administration's rank hypocrisy in allowing high-leve government officials to defend controversial programs - like the drone assassination program - while using the Espionage Act to criminally prosecute dissenters is welcome, a broad anti-leak law would likely not serve to protect whistleblowers, the press, or the American public.
Jesselyn Radack is National Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.