James Risen is a Pulitzer Prize winning journalist. He's also currently under subpoena, possibly facing jail time, because of his reporting.
Specifically, he's being investigated because of an article on a CIA ploy to hinder Iran's quest for a nuclear bomb that went epically sideways and may have actually helped Iran along. 60 Minutes ran a great story on him this weekend, during which they cited a well-known statistic: the Obama administration has prosecuted more national security "leakers" than all other presidencies combined, eight to three.
But the story also prompted me to look into another figure, which is less well known and potentially more dramatic. Partially because of press freedom concerns, sentencing in media leak cases has historically been relatively light. Not so under President Obama. When it comes to sending these folks to jail, the Obama administration blows every other presidency combined out of the water – by a lot.
By my count, the Obama administration has secured 526 months of prison time for national security leakers, versus only 24 months total jail time for everyone else since the American Revolution. It's important – and telling – to note that the bulk of that time is the 35 years in Fort Leavenworth handed down to Chelsea Manning.
It takes a bit of digging to find all this information. As my public service for the day, here's a rundown of every leak case, the sentence (if there was one), and its current disposition.
Pre-Obama Cases
- Daniel Ellsberg and Anthony Russo (1973). Famous national security whistleblowers prosecuted for releasing the Pentagon Papers. Sentence: Charges dropped after revelations that President Nixon's henchmen burglarized Ellsberg's psychoanalyst looking for dirt and tried to bribe the judge in their case with the directorship of the FBI.
- Samuel Morison (1985). Naval analyst who sent pictures of the Soviet navy to Jane's Fighting Ships, a reference book on the world's warships. Sentence: 24 months. He was subsequently pardoned by President Clinton, despite CIA objection.
- Larry Franklin (2005). Pentagon analyst charged with leaking Iran-related intelligence material to lobbyists for the American Israel Public Affairs Committee. Sentence: 10 months at a halfway house and 100 hours of community service.
Obama Cases
- Thomas Drake (2010). NSA whistleblower. Revealed waste at the agency in connection with the Trailblazer Project. Sentence: All espionage charges were later dropped, and Drake pled guilty to a misdemeanor. He was sentenced to a year of probation. The judge called the government's conduct in the case "unconscionable."
- Shamai Leibowitz (2010). Orthodox Jewish FBI translator, concerned about ill-considered Israeli airstrike against Iran, revealed U.S. spying against Israeli diplomats to blogger. Sentence: 20 months. Amazingly, the sentencing judge said, "I don't know what was divulged other than some documents, and how it compromised things, I have no idea."
- Chelsea Manning (2013). Wikileaks. Sentence: 420 months (35 years). As noted, it's heaviest sentence in history, almost twenty times the pre-Obama record.
- John Kiriakou (2013). CIA analyst and case officer. Kiriakou was the whistleblower who revealed the secret CIA torture program. Sentence: 30 months.
- Donald Sachtleben (2013). FBI agent and contractor alleged to have disclosed to the Associated Press details of a disrupted Yemen-based bomb plot. The wildly overbroad subpoena the Justice Department sent to the AP as a follow-up made national headlines. Sentence: 43 months. Longest ever imposed in civilian court.
- Stephen Kim (2014). State Department advisor who disclosed information about North Korea's plans to test a nuclear bomb to a Fox News reporter. The reporter was investigated by the FBI as a possible "co-conspirator" for mere act of newsgathering. Sentence: 13 months.
- Jeffrey Sterling (case pending). Alleged to have been James Risen's source.
- Edward Snowden (case pending). Revealed secret law allowing wholesale, covert surveillance of innocent people by the NSA. Charges against him carry decades in prison.
Wow. That's a long list. And as we're now waging a new war we are told could take years, it's a list that will only get longer.
With all due respect to the administration, this trend line should be going in the opposite direction. The modern national security state is more powerful than ever – more powerful even than during the Cold War. It demands democratic accountability. The last and best source of that accountability is a free press.
Tragically, that free press now has a 526-month sentence to serve.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.