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So far, the Obama administration has used the Espionage Act eight times. Along with Snowden, the government has also charged other Pentagon, CIA and NSA employees and contractors, including FBI translator Shamai Leibowitz, who was accused of leaking information to a blogger about the U.S.’s wiretapping of the Israeli Embassy. In four cases, including that of Leibowitz, the espionage charge was later replaced with lesser charges.
But while steering clear of repeating the mistake of the AIPAC case prosecution, the government has used mentions of the Espionage Act in going after reporters holding information that prosecutors deemed as necessary for their investigation. Such was the case with Fox News reporter James Rosen, named as an unindicted co-conspirator in a leak case, a move needed to obtain a search warrant for his communications.
Long Island Rep. Peter King suggested recently that Glenn Greenwald, the reporter from The Guardian who uncovered the NSA snooping program, should also be charged.
Some observers note that the increasing number of cases based on the Espionage Act may be somewhat deceptive because the number of officials with access to classified information has also increased dramatically in the past decade.
Advocates and legal experts also note that there is scant other legislation on the books dealing directly with classified information leaks. Current laws target some specific aspects of information leaks, such as revealing the identity of intelligence agents or disclosing intelligence communications, but there is no overall statute that would criminalize unlawful disclosure of information.
Such a legislative move might finally put the dusty 96-year-old law back in the history books and take it off the front pages.
“If Congress passes such a law and makes clear that the Espionage Act will no longer be directed against leaks to the press, that would be a reasonable trade-off,” Halperin said.