After months of vowing to crack down on leaks, the Trump administration announced its first criminal prosecution of a leaker late Monday—a move experts say could discourage other whistleblowers from coming forward.
“It most certainly has a chilling effect,” CIA whistleblower John Kiriakou told ThinkProgress.
Kiriakou was a source for media reports on the capture and waterboarding of alleged al-Qaeda operative Abu Zubaydah before serving two years in prison for revealing classified information to a reporter. In the secretive world of national security, where secrecy is high and public oversight low, Kiriakou said government efforts to curtail whistleblowers could have a serious impact on the media’s ability to disseminate information.
“It most certainly has a chilling effect.”
It’s only because of leaks, Kiriakou said, that the public found out about CIA torture, black sites, and the National Security Agency’s mass surveillance programs.
“These are all important issues that the American people need to know about,” he explained.
The FBI arrested Reality Leigh Winner, 25, of Augusta, Georgia, on Saturday, according to the agency’s announcement. The former National Security Agency contractor appeared in court on Monday for charges that she sent The Intercept a classified report on attempts by Russian military intelligence to target local U.S. election officials with tailored hacks.
The Obama administration prosecuted more leaks under the Espionage Act, which Winner has been charged under, than all previous administrations combined. It’s not clear whether the Trump administration will maintain that trend, but President Donald Trump has repeatedly called for leakers to be prosecuted.
Last month, for example, the Washington Post and the New York Times reported that Trump asked former FBI Director James Comey to pursue leaks to the media—and even possibly jail reporters who publish classified information—rather than investigating former National Security Adviser Michael Flynn’s contact with Russian government officials.
And in April, the Washington Post reported that Attorney General Jeff Sessions is considering charges against Wikileaks for its publication of classified U.S. government documents.
The Justice Department’s announcement of Winner’s arrest came just an hour after The Intercept published a story that included the alleged document, according to the New York Times.
The FBI says it identified Winner partly because reporters shared the document with the government to confirm its veracity and get comment on it. Visible creases it had been printed before being re-scanned, according to an affidavit published with the announcement. A log of people who had printed the document then led the FBI to view Winner as a suspect.
“Winner faces allegations that have not been proven,” The Intercept said in a statement Monday. “The same is true of the FBI’s claims about how it came to arrest Winner.”
The two lead reporters on The Intercept’s story, Matthew Cole and Richard Esposito, reportedly also played a role in Kirakou’s case. His criminal indictment alleged Cole passed the name of a CIA agent provided by Kiriakou on to defense attorneys for Guantanamo inmates — an ethically dubious move for a reporter.
“When you can’t trust the journalists you’re working with to protect your identity, what’s the motivation?”
With Winner’s arrest, Kiriakou fears that potential whistleblowers will lose their faith in reporters’ ability to protect their identities and keep them safe from losing their livelihood or their liberty.
“When you can’t trust the journalists you’re working with to protect your identity, what’s the motivation?” he asked. “You almost have to have a death wish.”
Experts disagree on whether The Intercept should have shared the document with the government before publication.
Steven Aftergood directs the Federation of American Scientists’ Project on Government Secrecy. Strict access controls may not always be possible for the huge number of classified documents the government produces, he said. But agencies use physical tags, watermarks, audit logs, and other access control methods to track who receives, handles, or reproduces more sensitive information. Those can limit the pool of potential suspects and lead back to the source of a leak.
“If the news story had paraphrased the document or had referred to it by title and had not published it, or [if the reporters] had not shared it with the government, the task of investigators would have been infinitely harder,” Aftergood told ThinkProgress.
Others are more skeptical that The Intercept did anything wrong. Journalists have a responsibility to verify documents and get stories right, according to Susan McGregor, assistant director of the Tow Center for Digital Journalism at Columbia Journalism School. That’s especially true in situations where media outlets might need to redact information from a classified document that could harm national security before publishing it, McGregor said.
“I think the idea that doing things a little bit differently would have slowed the apparently quick identification of the alleged source is dicey,” she told ThinkProgress.
In light of Winner’s arrest, McGregor said there’s a risk that reporters and sources could stop seeking out additional security practices, like encryption, based on a misguided assumption that they won’t work. That fatalism ignores the fact that good security practices can still protect sources who take risks to speak with journalists, McGregor said—especially on the vast majority of reporting that’s not related to national security.
“When I lock the door to my house in the morning, I don’t expect it to stop a SWAT team,” she said. “But it’s still worth locking my door.”