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The Espionage Act And A Growing Threat To Press Freedom

  • Jameel Jaffer
  • July, 2019
  • 122
  • Cyber Space

THE ESPIONAGE ACT SANCTIONS THE REVELATION OF SECRETS TO THE PRESS, WITH NO DISTINCTION BETWEEN THOSE WHO INTEND TO HARM THE UNITED STATES AND THOSE WHO SEEK TO EXPOSE THE ABUSE OF POWER.

The Justice Department’s recent indictment of Julian Assange, the founder of WikiLeaks, has alarmed press-freedom advocates, with even some of Assange’s fiercest critics warning that the government has crossed a perilous new frontier by using the Espionage Act to target a publisher. Another recent Espionage Act indictment has generated less controversy, presumably because its target is not a publisher but a government insider. Daniel Everette Hale, a former Air Force intelligence analyst, is alleged to have supplied classified documents to “an online news outlet”-apparently the Intercept, known for its aggressive reporting about war.

Hale provided intelligence support for U.S. drone strikes while he was deployed in Afghanistan, during the Obama Administration. Some of the documents he allegedly disclosed concerned strikes in Afghanistan and the Horn of Africa. The Intercept published the documents in the fall of 2015, at a time when U.S. drone strikes were especially controversial and Administration officials were contending that the strikes were lawful, necessary, and surgically precise. Hale believed that the strikes were counterproductive and immoral, and that Americans had a right to know how the military was deciding whom to kill.

The Espionage Act is more than a century old, and its use as a tool for the suppression of speech crucial to the democratic process is not at all new. During the First World War, some two thousand people were prosecuted under the act for their opposition to the draft and the war, many of them for political speech that we would recognize today as fully protected by the First Amendment. In the nineteen-seventies, the government charged Daniel Ellsberg under the act for supplying the Pentagon Papers, a classified study of U.S. involvement in Vietnam, to the Washington Post and the New York Times. The government was forced to abandon the prosecution after it came to light that the F.B.I. had unlawfully tapped Ellsberg’s phone and that agents of the White House had broken into the office of his psychiatrist.

Throughout the twentieth century, though, only one person was convicted under the Espionage Act for supplying information to the press. Samuel Loring Morison, a Navy intelligence analyst, was charged in 1984 with providing classified photographs to Jane’s Defence Weekly. The photos showed a next-generation Soviet aircraft carrier being assembled at a construction yard. Morison was convicted, but President Bill Clinton pardoned him, in 2001.

Senator Daniel Patrick Moynihan, who wrote powerfully of the corrosive effect of official secrecy, was among many who advocated for Morison’s pardon. He argued that Morison had been convicted for “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.” Moynihan’s observation provided a complement to an argument that Max Frankel, the Times’ Washington bureau chief, had made in the Pentagon Papers case. If the press did not publish government secrets, Frankel wrote, “there could be no adequate diplomatic, military and political reporting of the kind our people take for granted, either abroad or in Washington, and there could be no mature system of communication between the Government and the people.”

The George W. Bush Administration pursued several government insiders for leaking classified information, but it was the Obama Administration that normalized the use of the Espionage Act against journalists’ sources. Among its targets were Jeffrey Sterling, a former C.I.A. officer, who was sentenced to three and a half years for supplying the Times with classified information about U.S. efforts to disrupt Iran’s nuclear program; Donald Sachtleben, a former F.B.I. agent who was sentenced to three and a half years for providing the Associated Press with information about a foiled terrorist plot in Yemen; and Chelsea Manning, a former military-intelligence analyst who was sentenced to thirty-five years for providing Assange’s WikiLeaks with hundreds of thousands of pages of classified government documents. President Barack Obama commuted Manning’s sentence, in 2017-but only after she had served about seven years in prison. All told, the Obama Administration prosecuted eight people under the Espionage Act for leaking sensitive information to the media, more than all previous Administrations combined.

The Trump Administration is building on this foundation. Early in 2017, President Trump complained to his F.B.I. director, James Comey, that sensitive information relating to his calls with foreign leaders had found its way into the med...

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