For those of you wondering what’s next for Edward Snowden, a history of government whistleblowers can provide insight into how the government has responded to leaks in the age of the Espionage Act. Using the cases of Daniel Ellsberg (who in 1971released the Pentagon Papers, a top-secret study of U.S. government decision-making in relation to the Vietnam War), Thomas Drake (a former NSA executive who blew the whistle on the NSA's Trailblazer project, an internet data tracking system), and Bradley Manning (of Wikileaks fame), it becomes pretty easy to map out what will happen next.
Few whistleblowers can claim to have been prosecuted under the Espionage Act of 1917. In fact, Daniel Ellsberg, the first to be prosecuted under the Act, has been a strong supporter of the most recent leaker, Edward Snowden. “He’s done an incalculable service to this democracy,” Ellsberg said, “[and] showed the courage that we expect of people on the battlefield.” Ellsberg may as well be talking about himself, since he was in the same situation 40 years ago.
Then and now, here are the six steps of any government leak:
1) Government Overreach / Incompetence
Edward Snowden’s leak included disclosures of the secret court order allowing the NSA to receive phone call details and the NSA intelligence program called PRISM, both of which have called into the question the steps taken by the government sacrificing privacy in the name of security. As the Washington Post reports, "The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. internet companies, extracting audio, video, photographs, e-mails, documents, and connection logs that enable analysts to track a person’s movements and contacts over time." Not to mention the NSA’s acquisition of all of Verizon’s phone records since 2006. [Note: The Washington Post has issued a correction to its report, saying Prism allows 'collection managers [to send] content tasking instructions directly to equipment installed at company-controlled locations rather than directly into the server.]
Drake’s leak, like Snowden’s, targeted a specific program: the NSA’s Trailblazer program. He disclosed details about the NSA’s wasteful “Trailblazer” program to the Baltimore Sun. The failed over-budget program was meant to sort through internet data. In addition, the program was unnecessarily intrusive into private communications. Drake first complained to the Department of Defense’s Inspector General before going public. Drake is the 2011 recipient of the Ridenhour Prize for Truth-Telling and co-recipient of the Sam Adams Associates for Integrity in Intelligence (SAAII) award.
Manning’s leak to Wikileaks was essentially a massive file dump in an attempt to uncover war crimes committed by the U.S. The material included videos of the July 12, 2007 Baghdad airstrike and the 2009 Granai airstrike in Afghanistan; 250,000 United States diplomatic cables; and 500,000 Army reports that came to be known as the Iraq War logs and Afghan War logs.
Ellsberg’s leaks of classified documents shows that the government knew Vietnam was a lost cause but kept fighting to avoid embarrassment. As the New York Times later reported, the Pentagon papers, as they were called, "demonstrated, among other things, that the Johnson administration had systematically lied, not only to the public but also to Congress, about a subject of transcendent national interest and significance.”
2) The Leak
Snowden revealed himself as the source for the series of leaks to the Guardian newspaper. Here Snowden sets himself apart from Manning and Ellsberg. Both did not discriminate in deciding what to leak, and in Manning’s case, he leaked to an activist website rather than a reputable news source.
“I carefully evaluated every single document I disclosed to ensure that each was legitimately in the public interest,” Snowden says. “There are all sorts of documents that would have made a big impact that I didn’t turn over, because harming people isn’t my goal. Transparency is.” Snowden separately told Gellman, “I don’t desire to enable the Bradley Manning argument that these were released recklessly and unreviewed.”
In 2010, Bradley Manning and Wikileaks provided five major international newspapers with some of the more than 250,000 confidential diplomatic cables and Afghan War logs. Ellsberg similarly provided the New York Times with masses of documentation that has yet to be published in its entirety.
3) Flee abroad (optional)
Snowden is believed to have fled to Hong Kong May 20. The United States is likely to seek his extradition, but Hong Kong could refuse and other countries such as Iceland or even Ecuador could grant him asylum is he requests it. Julian Assange, the founder of WikiLeaks has been in asylum in the Ecuadorian embassy in London since June 2012.
4) Government Response
Snowden told the Guardian in an interview that he believes he will be charged with treason under the Espionage Act. Legal experts have noted though that such a charge would require proof of intent to betray the United States. Snowden has said his "sole motive" was to inform the public and spur debate.
Ellsberg, Drake, and more recently Manning, were charged under the Espionage Act, originally meant to prohibit the disclosure of information that could help the enemy. The government often reinterprets the text to turn whistleblowers into enemies of the state. Manning is standing trial for the charge of “aiding the enemy,” a capital offense.
Both Drake and Ellsberg were prosecuted, but in both cases the government's case failed. In Ellsberg’s ruling, Federal District Judge William Byrne, Jr. explained, "The totality of the circumstances of this case which I have only briefly sketched offend a sense of justice. The bizarre events have incurably infected the prosecution of this case.”
6) Repeat steps 1-5