As backers of Edward Snowden and three other accused or convicted leakers press for clemency from President Barack Obama, there is a common refrain: the hundred-year old Espionage Act is a draconian and ill-fitting tool to pursue national security secrets leaked to the press or public.

All indications are the drive for leak-related pardons or commutations for Snowden faces an uphill battle during Obama’s dwindling days at the White House. The current wave of controversy over leaks about salacious and unverified intelligence on President-elect Donald Trump may have made the odds for clemency even longer, as Republicans call for investigations into the disclosures.


But granting a pardon in a leak case would not, strictly speaking, be unprecedented.

In all of American history, the argument that the nation’s leak laws are too tough appears to have worked just once. In 2001, on President Bill Clinton’s final day in office, he issued a pardon to Samuel Loring Morison. Morison, a Naval intelligence analyst, was convicted in 1985 for sending spy satellite photos of an under-construction Soviet aircraft carrier to the London-based Jane’s Defense Weekly.

Morison’s pardon illustrates how dramatically the government’s response to leaks has changed over the years and serves as a reminder — as Trump prepares to be sworn-in — of how the occupant of the Oval Office plays a role in calibrating that response.

The core argument put to Clinton in the Morison case by luminaries such as Sen. Daniel Patrick Moynihan (D-N.Y.), historian Arthur Schlesinger and New York Times columnist Anthony Lewis was that Morison’s conviction was a bizarre and dangerous aberration.

“The selective action against Mr. Morison appears capricious at best,” Moynihan wrote to Clinton in 1998. “What is remarkable is not the crime, but that he is the only one convicted of an activity which has become a routine aspect of government life: leaking information to the press in order to bring pressure to bear on a policy question.”

With the passage of time, Morison’s case no longer looks like an anomaly, but a harbinger of a coming wave of leak prosecutions. One such case was filed under President George W. Bush, but the tsunami hit under Obama, with by some counts as many as ten criminal cases filed against alleged leakers by the Justice Department or military — a number far outstripping all previous presidencies.

Samuel Loring Morison was pardoned on President Bill Clinton's last day. | Josh Gerstein/POLITICO

The once-respectable argument that leakers shouldn’t be held to account under severe criminal laws — a contention that found resonance in the Oval Office 16 years ago this week — has fallen on tough times. And many who track the issue say the climate for leakers, whistleblowers and journalists may be about to get worse.

Now 72, Morison doesn’t look like much of a trendsetter. He passes many of his days at a city-run senior center in Bowie, Md., where he can often be found helping out in the kitchen. When a POLITICO reporter stopped by to see him last week, the Vietnam veteran was quietly reading a book as some elderly women played cards nearby. A baggy college sweatshirt covered his still-lanky frame.

Morison’s attire offers just one hint at his backstory. He sports a baseball cap commemorating his favorite ship: the U.S.S. Samuel Eliot Morison, a since-decommissioned frigate named for his grandfather, who’s widely regarded as the foremost Naval historian of all time. The elder Morison is depicted in a statue that sits on a grassy mall in Boston, just a few blocks from the city’s Public Gardens.

The junior Morison is still cagey about the events that led to his arrest and indictment three decades ago, but is willing to acknowledge some error on his part.

“I’ll tell you, I was probably wrong to do it, even though at that time I thought I had a good reason,” he said.

Morison argued that he passed the photos to Jane’s because he believed the U.S. wasn’t moving swiftly enough to counter the growing Soviet military threat. Prosecutors said his motives were more banal: he’d been working part-time for the British publication and wanted a full-time job.

The courts ultimately decided that his motives didn’t matter and that his actions were covered by the Espionage Act’s ban on passing vaguely defined “information relating to the national defense” to anyone not authorized to receive it.

Morison said the central argument of his pardon request was the same one that failed in the courts: that prosecutors were twisting U.S. espionage laws into something Congress never intended.

“It was all based on the fact that we have no Official Secrets Act like Britain does,” Morison said. “If you had an Official Secrets Act, then that’s one thing. But you can’t just jerry-rig the law to fit something that doesn’t exist.”

Morison also argued that his prosecution was explained in part by political pressure from the Reagan White House, which was embarrassed by the photos he disclosed. “There were people in the White House after my ass for that,” he said.

Morison declined to elaborate, but a previously unpublished Justice Department memo obtained from the Clinton Library shows he blamed Defense Secretary Caspar Weinberger for siccing the authorities on him.

“During an FBI interview in connection with his pardon application, petitioner stated his belief that he was only prosecuted because then Secretary of Defense Caspar Weinberger was embarrassed at a NATO conference by publication of the photographs, after he had previously refused to share United States’ satellite imagery of the Soviet Union with member countries, and that Weinberger then ordered the authorities to ‘get the person who did this.’”

The Justice memo makes clear prosecutors vigorously opposed a pardon for Morison, but the document also indicates Clinton was on notice that such a grant of clemency would be seen as a “vindication” for the former intelligence analyst.

“The serious and relative recency of the offense, petitioner's minimal acceptance of responsibility, and his lack of complete candor in the petition make executive clemency inappropriate at this time. In particular, given petitioner's continued assertion that his conviction was a misapplication of the law, an opinion apparently shared by others of some prominence, a pardon might well be viewed as a sign of vindication, thereby undermining the deterrent effect of the conviction,” the memo says.

The memo was prepared for the signature of then-Deputy Attorney General Eric Holder. The copy from the Clinton White House files is not signed. Holder, who served as Obama’s attorney general from 2009-2015, did not return a call seeking comment.

One of the mysteries of the Morison pardon is precisely why Clinton granted it. There was no statement from the president of his rationale. The Clinton Library files contain almost no evidence of the deliberations, beyond the letters in support and the Justice Department memo against.

“Advise on these – looks like something we probably should do,” Clinton wrote to a White House lawyer, Meredith McCabe, on Jan. 2, 2001. His words came in a handwritten note on a routing memo from one of his top advisers, Sid Blumenthal.

Blumenthal declined to comment for this story, but a source familiar with the episode said the former New Yorker writer was sympathetic to Morison’s pardon bid.

John Podesta, Clinton’s chief of staff at the time, recalls that Moynihan, the New York senator who died in 2003, was the moving force behind the pardon.

“This proceeded from the very, very active intervention of Moynihan, who thought the conviction was wrong,” Podesta told POLITICO just before he joined the Obama White House in 2014. “He pushed it very hard.”

Podesta, who served on a government secrecy commission Moynihan chaired, recalled that Clinton was persuaded prosecutors should have been required to prove Morison intended to harm the country or help another nation.

“The early, World War I precedents indicated that you had to have intent to cause harm to the national security and so a media leak could [possibly] meet that standard, but that was not the standard under which they prosecuted Morison,” Podesta said. “The question was whether he intended any harm to national security.”

The pardon issue also came to a head as the Clinton White House was highly attuned to concerns about measures aimed at cracking down on leaks. In November 2000, Clinton unexpectedly vetoed an intelligence authorization bill because he said it would impose criminal liability for leaks of classified information, regardless of what harm resulted or was intended.

The veto was a close call. White House lawyers prepared several versions of a signing statement for the bill before Podesta convinced Clinton to veto the measure.

“Although well intentioned, [the anti-leak] provision is overbroad and may unnecessarily chill legitimate activities that are at the heart of a democracy,” Clinton wrote in his official statement on the veto.

“We thought it could reach not just people who violated their oath not to disclose classified information, but was a pretext for prosecuting news organizations and reporters and had the potential to convert the statute into a UK-style Official Secrets Act,” Podesta said. “I argued to the president that he should veto it and he agreed.”

Morison said he never got an official explanation for the pardon, but is sure it stemmed from concerns about the legal standards applied in his case. “I don’t have any doubt at all,” he said.

Nevertheless, he acknowledges that having ties to people like Schlesinger brought attention to his situation. “My name helped, I have to admit,” he said. “I don’t think if I’d been just a random person in my position they’d have paid much attention. I didn’t do anything to exploit it. My name was my name.”

But if the Clinton team thought it had closed the chapter on prosecuting leak cases under the Espionage Act, it was badly mistaken.

The law was dusted off just four years later, in 2005, to indict a Pentagon intelligence analyst and two lobbyists for the American Israel Public Affairs Committee. The Pentagon official, Lawrence Franklin, quickly pleaded guilty. However, the charges against the pro-Israel lobbyists lingered for years. They were quietly dropped by Holder at the outset of the Obama administration.

What followed under Obama, however, was not a lull in the pursuit of leak cases, but the most vigorous campaign of prosecution in U.S. history.

One after another, leakers at the FBI, the CIA, the State Department and in the military were charged and convicted. The most severe sentence went to Army Private Bradley (now Chelsea) Manning, who received a 35-year sentence following a court martial for disclosing hundreds of thousands of diplomatic cables and military reports to WikiLeaks.

“Now, there seems to be another one every year or so. The situation keeps coming up,” Morison observed.

The arguments that convinced the commander in chief to nullify Morison’s conviction now seem to hold little sway anywhere in government. There are no advocates of Moynihan’s stature warning against the perils of the Espionage Act.

“That argument is now being made at the margins,” acknowledges Jameel Jaffer, director of the Knight First Amendment Institute at Columbia University and a former lawyer for the American Civil Liberties Union. “It doesn’t have the same number of voices behind it …These kinds of probes seem natural and unobjectionable to people. That is a new thing and a recent thing and I think Morison pardon perhaps is an indication of how significantly that culture has changed in the last generation.”

First Amendment advocates and other observers point to a variety of developments that may account for the shift. They include the renewed sense of security threat after the September 11, 2001 terrorist attacks and technological changes making it easier for rogue officials to spirit away vast volumes sensitive government information.

Some advocates say the massive online disclosures in the WikiLeaks case and the far-reaching surveillance revelations unleashed by Snowden amounted to game-changers that set the stage for robust use of the Espionage Act as a leak-control measure.

“My instinct is these waters were poisoned by WikiLeaks and the practice of massive disclosures,” said Steven Aftergood, who analyzes classification policy for the Federation of American Scientists. “People thought, ‘Wow, this is not some guy with an axe to grind or a grudge. This is a wholesale penetration of our security….’ The argument that leaks shouldn’t be criminalized lost some of the steam it once had.”

“In some sense, it feels like quainter times,” said Columbia Law Professor David Pozen, who explored the Morison case for a law-review article on leaks.

Some also fault the media, saying the press now does less to protest leak prosecutions, unless reporters are caught up directly in them.

“I’ve wondered for the last four or five years as these cases have taken on a greater prominence, why the media hasn’t been outraged. Sources are your bread and butter,” said Bob Muse, one of Morison’s attorneys. “I guess the outrage of the Morison time frame has come and gone. The media bears some responsibility for that in being complicit.”

Pozen noted Clinton’s grant of the pardon to Morison came as a new administration was about to be sworn in, raising the possibility the outgoing president was trying to set the stage for his successor. The Columbia professor said a similar dynamic could color Obama’s last-minute clemency calls.

“In his pardon and commutation decisions at the end here, President Obama may have in mind the kind of atmosphere that he’ll be bequeathing to Trump and perhaps wanting to again keep the leak channels flowing as Trump comes in, with some symbolic or more-than-symbolic move,” Pozen added.

Still, some of the clemency requests on Obama’s desk could engender massive blowback. Clinton’s pardon of Morison came after he had been convicted and served his time: spending seven months of a two-year sentence at Danbury, Conn. before being paroled.

Snowden, by contrast, has been on the lam in Moscow since 2013. He hasn’t filed an official pardon application, but hundreds of thousands of supporters have signed petitions calling for clemency in light of how his disclosures changed U.S. surveillance policy and led to passage of a law limiting the bulk collection of data.

Manning—considered the most likely candidate for clemency--has been in custody since 2010. Supporters want her 35-year prison term commuted to time served.

Former CIA officer John Kiriakou, seeking a pardon, has also served his time. He pleaded guilty in 2012 to disclosing names of undercover CIA officers involved in waterboarding terror suspects. He was sentenced to 30 months and released to home confinement in early 2015.

Retired Marine Corps Gen. James Cartwright, who pleaded guilty last year to lying in the course of an FBI probe into leaks about U.S. use of the so-called Stuxnet virus against Iran’s nuclear program, is also seeking a pardon. He has not served any time. In fact, he’s not scheduled to be sentenced until Jan. 31. Obama could grant the requested pardon or an advance commutation which would cap the former joint chiefs vice chairman’s possible prison time.

Cartwright’s case shares some similarities with that of Vice President Dick Cheney’s chief of Staff, Lewis Libby, who was convicted by a jury in 2007 of lying and obstruction of justice in an investigation into the leak of a CIA operative’s identity. President George W. Bush commuted the two-and-a-half year prison term Libby faced, but refused to lift the fine or grant a full pardon, despite repeated pleas from Cheney.

In his interview with POLITICO last week, Morison said he’s not familiar with most of those cases, but sees little similarity between himself and Snowden.

“If he wants a pardon, he should stand trial and then ask the president for one,” Morison said. “It’s flagrant. I’m not sympathetic to it….He fled. I wouldn’t have fled if my life depended on it.”

In fact, Morison was arrested at Dulles Airport as he tried to board a flight to London. Prosecutors did call him a flight risk, while defense lawyers said it was clear he was just going on vacation.

While Morison was regarded in some quarters as a First Amendment martyr during the 1980s and 1990s, his story includes a coda that renders it a cautionary tale as Obama considers last-minute pardons and commutations.

In 2014, Morison ran afoul of the law again, charged with stealing original maps and documents from his grandfather’s official files in Navy archives. He later pleaded guilty to a felony count of theft in the same courthouse where he stood trial in the more celebrated case three decades earlier. He was sentenced to probation.

Asked if he was concerned the theft conviction might impair the chances of other clemency hopefuls, Morison said he doubted that would happen.

“That’s a complicated situation. I got hung out to dry on that one,” Morison said. “A case is a case … Nobody’s perfect.”