Ex-CIA employee deserves a long prison sentence — but not for leaking documents

Seth Stern

Director of Advocacy

Aerial view of CIA headquarters in Langley, Virginia. Carol M. Highsmith Archive collection at the Library of Congress.

What do you view as a more serious crime: divulging government secrets or possessing child pornography? If you chose the latter, the U.S. government begs to differ.

Joshua Schulte leaked a tranche of CIA secrets to WikiLeaks, known as the Vault 7 leaks, in 2017. Agents investigating the leak also found 15,000 images of child pornography and erotica on his computers. Yesterday he was sentenced by U.S. District Judge Jesse M. Furman to 40 years in prison: six years and eight months — a below average sentence — for child pornography, and the remaining 33 years and 4 months for the Vault 7 leaks.

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And the imbalance in Schulte’s sentence can’t be blamed on Furman alone: it’s consistent with the Department of Justice’s sentencing memo, which disproportionately focused on the leaks to justify throwing the book at Schulte. It sought a life sentence for the disclosures, citing punishments imposed on actual spies, not leakers. In contrast, a pre-sentencing report recommended only 60 months — the mandatory minimum — for child pornography.

This follows the draconian five-year sentence imposed last week on Charles Littlejohn, who leaked Donald Trump’s tax returns to The New York Times and tax returns of ultra-wealthy Americans to ProPublica, enabling important investigative reports by both publications.

We’re not comparing Schulte to Littlejohn or other whistleblowers, from Daniel Ellsberg to Chelsea Manning, who acted because their conscience compelled them to risk prison to expose wrongdoing. Schulte's motive was apparently revenge against his former colleagues at the CIA. And of course, his child pornography collection is abhorrent, and he absolutely should serve a lengthy prison sentence following his conviction for those disgusting crimes.

But bad facts make bad law. And when government officials found a defendant as unsympathetic (to say the least) as Schulte they jumped at the opportunity to escalate their war on leakers in ways they could later use to punish real whistleblowers, including by successfully seeking a “terrorism enhancement” on Schulte’s sentence because his leaks were “clearly calculated to retaliate against the United States as a whole."

Here’s how Chip Gibbons, policy director for Defending Rights & Dissent, put it: “Using an isolated and unpopular defendant, the government has dramatically expanded its arsenal against media sources. We cannot expect the terrorism enhancement or analogizing online news sites to hostile foreign governments to end in this case.”

Furman did note in his remarks that Schulte wasn’t motivated by altruism. And officials have characterized Schulte’s leak as causing a “digital Pearl Harbor,” although that seems hyperbolic: The fallout they cite involves operational difficulties, not deaths. But nonetheless, it’s easy to imagine the government using exceedingly vague legal definitions of terrorism to obtain heightened sentences against whistleblowers and dissidents who have little in common with Schulte.

In fact, there’s no need to imagine. Julian Assange is not a former government employee with a grudge, but prosecutors nonetheless reportedly planned, and may still plan, to seek a terrorism enhancement in his prosecution.

Assange isn’t accused of leaking documents himself but of obtaining documents from a whistleblower (Manning) and then publishing them on WikiLeaks. Award-winning investigative journalists obtain and publish leaked documents every day. Whether you love or hate Assange, the prospect that the government would not only prosecute this kind of constitutionally protected activity, but could characterize it as “terrorism,” is highly alarming.

Schulte absolutely should spend the foreseeable future behind bars for his hoarding of child pornography. He’s a despicable person and we have no sympathy for him.

But it speaks volumes about the priorities of our government that his punishment overwhelmingly arises from his disclosure of government secrets. The government appears to view his child pornography offenses as a mere excuse to test how far it can go in punishing those who expose its abuses. The next Ellsberg might well think twice before blowing the whistle with this sentence as a precedent.

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