The confirmation in December that former CIA Director Leon Panetta let classified information slip to "Zero Dark Thirty" screenwriter Mark Boal during a speech at the agency headquarters should result in a criminal espionage charge if there is any truth to Obama administration claims that it isn't enforcing the Espionage Act only against political opponents.
I'm one of the people the Obama administration charged with criminal espionage, one of those whose lives were torn apart by being accused, essentially, of betraying his country. The president and the attorney general have used the Espionage Act against more people than all other administrations combined, but not against real traitors and spies. The law has been applied selectively, often against whistle-blowers and others who expose illegal, corrupt government actions.
After I blew the whistle on the CIA's waterboarding torture program in 2007, I was the subject of a years-long FBI investigation. In 2012, the Justice Department charged me with "disclosing classified information to journalists, including the name of a covert CIA officer and information revealing the role of another CIA employee in classified activities." I had revealed no more than others who were never charged, about activities — that the CIA had a program to kill or capture Al Qaeda members — that were hardly secret.
Eventually the espionage charges were dropped and I pleaded guilty to a lesser charge: confirming the name of a former CIA colleague, a name that was never made public. I am serving a 30-month sentence.
The Espionage Act, the source of the most serious charges against me, was written and passed during World War I and was meant to target German saboteurs living in America. It was updated once, in 1950, when Americans got to thinking the country was awash in communist spies. The law is so outdated that it refers only to "national defense information" rather than "classified information," because the classification system had not yet been invented.
The act states: "Whoever, lawfully having possession of, access to, control over, or being entrusted with any ... information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates ... the same to any person not entitled to receive it ... shall be fined under this title or imprisoned not more than 10 years, or both."
A transcript obtained by the organization Judicial Watch shows that, at a CIA awards ceremony attended by Boal, Panetta did exactly that. The CIA seems to acknowledge that Panetta accidentally revealed the name of the special forces ground commander who led the operation to kill Osama bin Laden, not knowing that the Hollywood screenwriter was part of an audience cleared to hear him speak. But intent is not relevant to Espionage Act enforcement.
U.S. District Court Judge Leonie Brinkema ruled in my case that evidence of the accidental release of national defense information was inadmissible, and she added that the government did not have to prove that a leak of classified information actually caused any harm to the United States. In other words, the act of disclosing the kind of broad information covered by the Espionage Act is prosecutable regardless of outcome or motive.
The sensitivity of what Panetta revealed is not in question. The spokesman for the former CIA director said Panetta assumed that everyone present at the time of the speech had proper clearance for such a discussion. When the transcript of the speech was released, more than 90 lines had been redacted, implying that Panetta had disclosed a great deal more classified information than the name of an operative.
Even the CIA's Office of Security concluded that "the agency's security policy and administrative procedures were not followed in allowing Mr. Boal, a member of the media, access to the classified bin Ladin [sic] Operation Award Ceremony."
If an intent to undermine U.S. national security or if identifiable harm to U.S. interests are indeed not relevant to Espionage Act enforcement, then the White House and the Justice Department should be in full froth. Panetta should be having his private life dug in to, sifted and seized as evidence, as happened to me and six others under the Obama administration.
When the transcript of Panetta's speech and his inadvertent leak came to light in January, a CIA spokesman told the Associated Press that the agency had subsequently "overhauled its procedures for interaction with the entertainment industry." Such internal reviews are fine and good, but equality before the law is the rule in America. Your job title, your Rolodex and your political friendships are not supposed to trump accountability. Except when they do.
Gen. James "Hoss" Cartwright, once known as the president's "favorite general," was reportedly targeted as the source of information about the Stuxnet virus leaked to a New York Times writer. That investigation has dropped from sight, and Cartwright has so far faced no charges.
Yet when senior National Security Agency official Thomas Drake blew the whistle on waste, fraud and abuse at the NSA — in the form of a bungled project that cost more than $1 billion — he wound up buried under espionage charges, all of which were eventually dropped but only after his life was in shreds.
When former State Department intelligence advisor Stephen Jin-Woo Kim talked to a Fox News reporter about North Korea, he was charged with espionage, and his prosecutors were absolved by the presiding judge from having to prove "that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially."
If Panetta and Cartwright aren't accountable while Drake, Kim and I have been crucified for harming U.S. national security — all of us accused of or investigated for the same thing: disclosing classified information to parties not authorized to know it — then what does that say about justice in America or White House hypocrisy?
The Espionage Act should be rewritten to deal with the issues of intent, such as accidental disclosures and real harm done. Until then, it is right and just to charge Panetta at least with espionage. Accidental though his revelation may have been, it's still a crime.