Category Archives: US Espionage Act

Obama's gift to Donald Trump: A policy of cracking down on journalists and their sources - The Intercept 20160406

Obama's gift to Donald Trump: A policy of cracking down on journalists and their sources - The Intercept 20160406

ONE OF THE intellectual gargoyles that has crawled out of Donald Trump’s brain is the idea that we should “open up” libel laws to make it easier to punish the media for negative or unfair stories. Trump also wants top officials to sign nondisclosure agreements, so they never write memoirs that upset the boss. Trump is so disdainful of free speech that he has even vowed to use the Espionage Act to imprison anyone who says or leaks anything to the media that displeases him.

Actually, that last bit is made up; Trump hasn’t talked about the Espionage Act. Instead, the Obama administration has used the draconian 1917 law to prosecute more leakers and whistleblowers than all previous administrations combined. Under the cover of the Espionage Act and other laws, the administration has secretly obtained the emails and phone records of various reporters, and declared one of them — James Rosen of Fox News — a potential “co-conspirator” with his government source. Another reporter, James Risen of the New York Times, faced a jail sentence unless he revealed a government source (which he refused to do).

Obama has warned of the imminent perils of a Trump presidency, but on the key issue of freedom of the press, which is intimately tied to the ability of officials to talk to journalists, his own administration has established a dangerous precedent for Trump — or any future occupant of the Oval Office — to use one of the most punitive laws of the land against some of the most courageous and necessary people we have. One section of the Espionage Act even allows for the death penalty.

Obama’s gift to Trump was unintentionally highlighted in a speech the president delivered last week at a ceremony to honor the winner of the Toner Prize for Excellence in Journalism. Obama lamented the financial challenges facing the journalism industry and lauded the assembled reporters and editors for the hard and vital work they do. He made no mention of the ways in which his administration is making that job even harder, however, and that omission prompted the winner of the prize, ProPublica’s Alec MacGillis, to gently note, “That does not get him off the hook for his administration taking so long to respond to our FOIAs.”

Two years ago, Eben Moglen, a law professor at Columbia University, gave a series of lectures in which he discussed the idea of “fastening the procedures of totalitarianism on the substance of democratic society.” Moglen’s lectures were mostly concerned with surveillance by the National Security Agency — the title of his talks was “Snowden and the Future” — but his idea applies to other procedures the U.S. government has recently become fond of. Few are more important than targeting whistleblowers and journalists, and Obama has begun the fastening process.

The Release, a new film about Stephen Kim, directed by Stephen Maing.

It’s a maddening situation that becomes all the more maddening when you think of the lives of the leakers and whistleblowers the Department of Justice has ruined. I have previously written at length about two of them, Jeffrey Sterling of the CIA and Stephen Kim of the State Department. A new documentary about Kim, directed by Steve Maing and released this week by Field of Vision, the film division of The Intercept, powerfully shows the personal hell of living under Obama’s crackdown. After serving a prison sentence for discussing a classified report on North Korea with Fox’s James Rosen, Kim now finds it impossible to return to his old life. Although he has advanced degrees from Harvard and Yale, he cannot get a foreign policy job because of the taint of being a convicted leaker. Kim now describes himself as “homeless, penniless, family-less,” and adds, “I cannot go back to what I was. That person is gone.”

Leakers and whistleblowers are not just categories of people — they are actual people with names and careers and children and lives that have been unjustly crushed. David Petraeus, the former four-star general and CIA director, leaked far more classified data to his biographer-girlfriend than Sterling or Kim or John Kiriakou, and lied to the FBI about it. Petraeus, however, was let off with a misdemeanor plea bargain, because if you are powerful you can do as you like. That deal is another gift to Trump or any menace-in-waiting. The president has set a precedent that says it’s okay to literally give a get-out-of-jail card to your friends.

Now that we live in the shadow of a political era that goes by two words — President Trump — it’s time for Obama to disavow the precedent he has set. The next time he gives a speech on the importance of journalism and free speech, he should admit he has made a terrible mistake and pardon the people who were wrongly prosecuted, including Manning, Kim, Sterling, Kiriakou, and Thomas Drake. He should ask their forgiveness. Obama does not have the power to stop us from electing a terrible president, but he can limit the damage that one can do.

Wells, Christina - Edward Snowden, the Espionage Act and First Amendment Concerns - Jurist 20130729

JURIST
Guest Columnist Christina Wells of the University of Missouri - Columbia School of Law says that the broad provisions of the Espionage Act raise significant First Amendment concerns, mainly that government officials can control all debates by allowing favorable leaks while punishing embarrassing or critical ones ...

Last month, Edward Snowden, a former government employee and contractor, disclosed to newspaper reporters information about US intelligence activities that he obtained during the course of his work. Specifically, he revealed that the NSA engaged in widespread, warrantless surveillance of domestic and international telephone and Internet communications and also engaged in cyber spying on other governments, including allies. The revelations caused a public stir, especially given the questionable constitutionality of the NSA's domestic surveillance. But far more press, much of it hyperbolic, has focused on Snowden himself. Many officials and observers have called him a traitor while others labeled him a hero and a whistleblower who exposed massive government wrongdoing. The federal government recently brought criminal charges against him for theft of government property and violations of sections 793(d) and 798(a)(3)of the Espionage Act. These crimes carry possible prison sentences of up to thirty years and signal that the government does not view Snowden as a whistleblower. What are the implications of these particular charges for Snowden, especially in light of the First Amendment, which exists largely to protect public criticism of government and serve as a check against government wrongdoing?

Although officials have referred to Snowden as a traitor, he was not charged with treason. Nor should he be. The crime of treason requires that a person actually levy war against the US or act to aid enemies with whom the US is at war while showing allegiance to those enemies. Snowden's disclosure of confidential information does not rise to the level of treason, especially given that his apparent motive was to inform the general public about a surveillance scheme he viewed as "an existential threat to democracy." In fact, the crime of treason is purposefully difficult to prove against defendants like Snowden precisely because it was historically abused, often used to punish those who did nothing more than criticize the government.

Snowden has also been charged with crimes under the Espionage Act for intentionally revealing secret national security information. Once these charges became public, newspapers immediately claimed that he was charged with espionage. Such claims are not quite accurate. Espionage is generally defined as "the practice of spying ... to obtain information about the plans and activities especially of a foreign government." Although there has been speculation regarding whether the countries to which Snowden has fled (Russia and China) have seized his files, there is not yet any evidence that he acted on their behalf or willingly cooperated with them as would be the case with classic espionage.

More worrisome regarding the Espionage Act provisions under which Snowden is charged, is that he need not "spy" for another government to fall under them. Sections 793(d) and 798(a)(3) are broadly written and arguably extend to many kinds of disclosures. Section 793(d) prohibits intentionally communicating national defense information to unauthorized persons if one has reason to believe the information could hurt the US or help a foreign nation. Section 798(a)(3) prohibits intentionally communicating classified information concerning communications intelligence activities to an unauthorized person or using it in any manner prejudicial to the interests of the US or for the benefit of a foreign nation. In other words, these laws make it a crime to disclose to almost anyone (most of us are "unauthorized persons") secret government information if there is a possible scenario in which disclosure could harm us or help another nation. Surely, the US government could make a case that Snowden's disclosures fit these crimes as described. Such broad criminal provisions, however, essentially ignore the deliberate hurdles placed in the way of treason prosecutions. Why bother prosecuting Snowden with treason when you can label him a "traitor" in the news, charge him under the Espionage Act and throw him in jail for decades simply for communicating information to the public?

Which brings us back to the First Amendment. As with those early and often abused-treason prosecutions, the broad provisions of the Espionage Act raise significant First Amendment concerns. The laws give officials nearly unfettered discretion to determine when a release of confidential information may cause damage to US interests. Thus, officials can retaliate against certain leakers by charging them with crimes while ignoring other leaks. And leaks occur, often purposefully and at the behest of senior administration officials. As Professor David Pozen has explained, the executive branch "leaks like a sieve" and likely always will. Prior to the last decade, the federal government did not aggressively pursue criminal charges against government employees who leaked information to the press; rather, it punished such leaks if at all, via internal disciplinary actions. In recent years, however, government officials have increasingly used the Espionage Act against employees who leaked information embarrassing to the Executive Branch, such as disclosures that the US spied on the Israeli embassy and on UN leaders. The very breadth of the Espionage Act provisions allows just such abuse and gives officials the incentive to punish its critics while continuing to leak information favorable to it.

Such one-sided punishments under the Espionage Act undermine the First Amendment's checking function, which assumes that the strongest restraints on government power come from popular opinion. Secrecy about government activities is especially corrosive to the checking function. The public simply cannot have an opinion on government activities when it is unaware of them. The US government can legitimately argue that secrecy of some sort is necessary to its intelligence operations. But when the very constitutionality of those operations is questionable and involves violating the rights of its own citizens, complete secrecy weakens not just the First Amendment but democratic principles as well. Courts faced with individuals criminally charged with leaking information about actual, significant government abuses of power or illegal government activity should account for this important function of the First Amendment.

None of this means that government employees should have license to freely disclose information that is legitimately kept secret and critical to our national security. The US Supreme Court recognizes that government employees working with national security issues sit in positions of trust that limit their First Amendment right to disclose information. But it also recognizes that arbitrary criminal prosecutions of speech can chill public discussion on important political and social issues. We must come to some sort of balance indetermining whether and how to punish public employee disclosures of confidential information while still allowing the checking function of the First Amendment to operate. Absent that balance, government officials have complete power over all debates by allowing favorable leaks while punishing embarrassing or critical leaks. As one court recently noted, once this happens we enter an "Alice-in-Wonderland" world where everything is upside down, "effectively allowing our Government to claim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws."

Christina Wells is the Enoch H. Crowder Professor of Law at the University of Missouri - Columbia School of Law in Columbia, MO. She teaches Freedom of Speech, Remedies, Administrative Law and Gender & the Law. She has twice received the Shook, Hardy & Bacon Research award for her articles on the constitutionality of statutes regulating funeral protests and the effects of fear and risk assessment on decision-making in times of crisis.

Suggested citation: Christina Wells, Edward Snowden, the Espionage Act and First Amendment Concerns, JURIST - Forum, Jul. 25, 2013, http://jurist.org/forum/2013/07/christina-wells-snowden-espionage.php


This article was prepared for publication by Michael Kalis, an associate editor for JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org