The Espionage Act needs revision -- Reference Leon Panetta's "pass" on enforcement

The LA Times published an "op-ed"editorial written by John Kiriakou who is currently serving time in prison for releasing information about the CIA's torturing of captives.

I got 30 months in prison. Why does Leon Panetta get a pass? - latimes.com:

John Kiriakou believes he was a "Whistle Blower" who was revealing the clearly illegal activities of the CIA in doing waterboarding.  Apparently he knew he was releasing information to the press.

On the other hand, Panetta thought he was talking to a room of cleared people, but there happened to be some uncleared press people.

Over 25 years ago, I was involved in similar situations where a political appointee was speaking to a large audience and inadvertently released classified information to people who were not authorized.  In that situation, and I would assume also in the referenced "Panetta" situation mentioned in the article, a security officer detained all attendees to that conference and debriefed everyone.  That debriefing, in effect, swore all to keep the secrets that were inadvertently released.  There are standard procedures for handling the inadvertent release of classified information.  I get the impression that it happens a few times every year.

In John Kirakou's situation, he released information without giving Government security an opportunity to "debrief" the reporters.  This is a significant difference. He, in effect, intended to release that information to the public.



I do agree with Kirakou, that the Espionage Act needs some serious updating.  It is currently too vague and can be applied inconsistently and unfairly. A lot has changed over the years --and the use of the internet has changed almost everything!  Too many times our country has given prosecutors new powers and they have abused them in order to get a "win" instead of trying to achieve "justice."



I certainly agree that any new version of Espionage Act needs to be very tough on the release of information.   However we do seriously need a way to protect "whistle blowers."  That protection needs to be built-in to any new law.  I believe that if we had a good, somewhat independent, method of doing whistle-blowing, that a lot of classified information could be protected even better than it is.  For example, if Snowden knew he could have reported his concern to someone who could have done something about the NSA spying on Americans or foreign leaders, would it have provided an outlet for him, and protected some of the information?



The real question is:  Who would be that "independent" contact for a whistle-blower to talk to?  Clearly the organization's "Inspector General" is not the right spot.  I would suspect that if Kirakou or Snowden reported to their IG, the first thing that would be done  was that Kirakou or Snowden would be locked up in a cell and never heard from again.  Should it be an office of the GAO?  An independent organization, similar to the FED?  How could this be implemented?  It is a very tough problem!



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Poll: NSA Oversight Is Inadequate, Most Americans Say

Snowden has sparked a lively discussion about the complex trade-offs between American's right to privacy and protection from terrorists. This article in Huffington Post now points out that most people are upset that NSA is spying on us.  Poll: NSA Oversight Is Inadequate, Most Americans Say:  Andrew Bracevich wrote an editorial  that asks the question: Are Snowden and Manning heroes or criminals?

However, I believe the problem could be much larger than just NSA.  The current "flap" is about NSA listening in on international communications and accidentally picking up American citizens communications and metadata. However, FBI, DEA, Treasury Dept, IRS, Border Patrol, etc all have opportunities to gather similar data and make similar "mistakes."  State and local agencies also have huge databases of metadata and opportunities to use it inappropriately.  Sandag in San Diego has a database of all car license plates and their locations over the past two years.  Freeway and bridge tolling companies know every vehicle that passed by. Telephone companies have all billing records.  Credit card companies have records of everything we ever purchased.  All of this information could be very valuable in catching or prosecuting bad guys.  But it could also be abused.

I also believe that we won't be protected from abuse as long as oversight is only performed by a secret court, by secret judges, with secret results.  I'm sure that if the Government intentionally or accidentally listened in on my telephone conversation, or read my e-mail, they would want that fact to be kept secret "forever."  The agency would argue that it would not want it's espionage methods and procedures to be made public, because it could tip the hands of people with something to hide.  However unless judges know that at some time in the future their decisions will be made public, they will not make balanced decisions.

The databases of metadata, and the new technologies are a treasure trove for law enforcement.  It would be crazy to not be able to take advantage of them when fighting crime, whether it is terrorism or income tax evasion.  On the other hand, we need to implement adequate checks & balances in the system to protect citizens from inappropriate violations of privacy.

The only way of doing that is to:
1. Establish a system that is clearly open, with accountable judges and staff who rotate frequently
2. Document public guidelines for use of these new technologies, and allow for "secret" guidelines that implement those public guidelines
3. Require declassification of collection and use of these data within reasonable timelines and allow FOIA requests for those data.  For example, I should be able to find out if NSA intentionally or inadvertently listened to my phone call 5 years ago.