Air Force seeks its pound of flesh in Teixeira leaks case
Boston, MA - March 4: Joshua S. Levy, Acting United States Attorney District of Massachusetts was flanked by Matthew G. Olsen, Assistant Attorney General Justice Department's National Security Division as he spoke at a press conference inside the Moakley Federal Courthouse after Jack Teixeira, the Massachusetts Air National Guardsman accused of leaking classified documents on the internet plead guilty to espionage. (Photo by Jessica Rinaldi/The Boston Globe via Getty Images)
If 16 years in prison isn’t sufficient deterrence against trying to impress one’s video gamer friends with highly classified intelligence snagged from one’s Air Force worksite, what is?
The U.S. Air Force doesn’t think it’s enough. In an almost unheard of move, the Air Force recently decided to pursue court-martial charges against Massachusetts Air National Guard Airman First Class Jack Teixeira — after Teixeira pleaded guilty in U.S. federal court for his leaks, and after he’d agreed to a 16-year prison term for his felonious retention and transmission of classified material.
This military prosecutorial overreach raises serious double jeopardy, fairness and efficiency concerns. Hopefully the Air Force general making the ultimate decision to court-martial Teixeira (following last week’s preliminary hearing) will dismiss this case. The Air Force should instead administratively separate Teixeira based on his federal convictions; an “under-other-than-honorable-conditions” discharge is virtually indistinguishable, consequence-wise, from any court-martial punitive discharge, and would quickly get him off Air Force payrolls.
A court-martial is absurd at this point. First and foremost, Teixeira already faces a lengthy 16-year prison sentence; indeed, it’s quite severe compared to similar cases. Chelsea Manning served seven years for her whistle-blowing leaks; a federal intelligence analyst in 2020 received 30 months in prison for his leaks to journalists; and yet another Air Force airman in 2021 received 45 months in prison for similar charges of retention and transmission of classified data. Reality Winner, a former airman and intelligence analyst, received slightly over five years in prison for an Espionage Act conviction of transmitting national security information.
Sixteen years seems rather harsh in comparison, though most would agree warranted. Last year Teixeira jeopardized U.S. national security, plus embarrassed the United States and the U.S. Air Force, by his unauthorized sharing of highly-classified national security documents on a gaming platform in a sophomoric effort to impress his gamer bros. This breach was enabled by Teixeira’s vast and relatively unsupervised access to top-secret intelligence thanks to his air national guard IT position.
Not only does his severe 16-year sentence appear just; the serious Espionage Act-related charges the Department of Justice (DOJ) convicted Teixeira of in March fairly capture the gravamen of Teixeira’s malfeasance (meaning no additional charges necessary). Teixeira’s convictions punish his intentional failures to safeguard the nation’s secrets he was entrusted with. His long sentence sends a powerful message to those with access to U.S. national secrets that their safeguarding duties are inviolable; it also reassures allies that America takes intelligence breaches seriously.
So instead of pursuing a separate court-martial, the Air Force should be getting its own house in order. While it’s taken administrative action against some in Teixeira’s unit, such token personnel measures are meaningless if systemic failures are not addressed. The American public deserves answers: Why did a junior airman have unfettered access to vast quantities of highly classified intelligence; did nepotism play a role in his hiring by the guard unit where his stepfather worked; why were Teixeira’s earlier security breaches grossly mishandled; should air national guard units be charged with national security intelligence missions versus more professional active duty units? Etc.
The court-martial charges against Airman Teixeira at this point seem frankly spiteful and largely redundant. Indeed, the minor failure to obey charge the Air Force has accused Teixeira of — for ignoring supervisors’ warnings to stop accessing certain information on classified Air Force servers — is predicated on the very same misconduct underlying Teixeira’s federal convictions. Although this military disobedience crime has different elements than the Espionage Act crimes Teixeira pleaded guilty to — hence not technically violative of the Constitution’s double jeopardy prohibition — basic fairness and commonsense dictate that such a penny ante charge (which only carries six months’ jail time, and a punitive discharge) not be brought. Sixteen years versus another six months? The juice isn’t worth the squeeze.
Additionally, the Air Force’s obstruction of justice charges are head-scratchers. DOJ has numerous federal obstruction charges it could have brought in its premier federal criminal case against Airman Teixeira — it had the same evidence (Teixeira’s smashing of his cell phone, etc.) that the Air Force has now. Yet in its vastly more experienced prosecutorial judgment, DOJ chose not to bring such charges, wisely focusing on the heart of Teixeira’s criminality. Indeed, as part of Teixeira’s plea deal, the Department of Justice specifically agreed “not to charge Defendant … with any additional crimes related to the conduct underlying the crimes charged in the Indictment that are known to the U.S. Attorney at this time.”
The Air Force, instead of wasting resources to get their pound of flesh, should discharge Airman Teixeira forthwith to DOJ’s waiting arms — to escort him to federal prison.
Rachel E. VanLandingham, Lt Col, USAF (ret.), is Irwin R. Buchalter Professor of Law, Southwestern Law School Los Angeles and president emerita of the National Institute of Military Justice.