If Hillary Clinton Gets a Pass on Espionage From President Obama, so Should Whistleblowers
By John Kiriakou
Former Secretary of State Hillary Clinton, the likely Democratic nominee for president, appears to have committed a very serious violation of some of the country’s most important laws governing the use and misuse of classified information: She revealed the names of undercover CIA officers by using her unclassified and unprotected personal email server. That may be a violation both of the Espionage Act of 1917 and the Intelligence Identities Act of 1982 (IIPA). That Clinton used an unclassified system for classified information is not conjecture. That’s the same email server that Romanian hacker Guccifer said was so easy to hack that it was “like an open orchid on the internet.”
That Clinton had such highly classified information on an unclassified system is a fact. The question now is: What is the Obama administration going to do about it? And the answer is, probably, nothing.
From the passage of the Espionage Act in 1917 until Barack Obama’s inauguration in 2009, only three Americans were charged with espionage for revealing classified information publicly. But under Obama, eight Americans have been charged with espionage, including me. All of us were accused of providing classified information to the press, most of us as whistleblowers. None of us was ever accused of giving information to a foreign country.
The Obama Justice Department didn’t care in our cases that many of us had gone to the press with evidence of governmental waste, fraud, abuse and illegality. We all faced long prison sentences—long enough that we could have died in prison. Indeed, NSA whistleblower Thomas Drake faced 35 years for blowing the whistle on the NSA’s warrantless wiretapping program. The case against him fell apart in the end, and all felony charges were dropped. I faced 45 years after blowing the whistle on the CIA’s torture program. I took a plea to violating the IIPA and served 23 months in a federal prison. Chelsea Manning was sentenced to 35 years in prison for providing WikiLeaks with evidence of U.S. war crimes in Iraq.
Most senior Democrats—all of whom were silent as the Obama administration waged war on whistleblowers—have sought either to defend Clinton or downplay the importance of what she did. Former Secretary of State Madeleine Albright even made a ridiculous statement to CNN last week, saying that “[n]obody is going to die as a result of anything that was in (Clinton’s) emails.” That is utterly irrelevant. Just the fact that some of Clinton’s emails had to be redacted before release, classified after the fact or withheld in their entirety means that the Justice Department, if it is to be at all consistent, ought to be considering at least espionage charges for her.
All I did was to confirm the name of a former CIA colleague to a reporter. The reporter never made the name public, and there was no harm to the national security. But I still faced up to 10 years in prison just for that revelation. So why should the criterion for Clinton be that nobody died?
The judge in my case was clear about a number of issues. First, the very definition of “espionage” is incredibly broad. Espionage is the act of “providing national defense information to any person not entitled to receive it.” Period. My judge also said that there did not have to be mens rea, or criminal intent, for there to be guilt in an espionage case. And the concept of “harm to the national security” was irrelevant.
The IIPA also ought to be in play here. Clinton revealed the names of perhaps dozens of undercover CIA officers in her unclassified emails. Was Clinton lackey Sidney Blumenthal cleared for those names? Were Clinton’s other hangers-on? Did they have a need to know? If not, IIPA charges also should be filed.
There is, of course, a solution to all of this. If the current administration is not going to charge Clinton with espionage or with violating the IIPA, it ought to issue pardons for the whistleblowers it has targeted over the past 7 1/2 years. Either the country has a policy of filing felony charges against people who reveal classified information or it doesn’t. We should all be prosecuted or none of us should be.
President Obama should be consistent. If the Justice Department is not going to charge Hillary Clinton with a crime, the president should pardon us whistleblowers. Thomas Drake, Chelsea Manning, Edward Snowden and I would appreciate it. And it’s only fair.
John Kiriakou is a former CIA counterterrorism operations officer and former senior investigator for the Senate Foreign Relations Committee.