The Espionage Act Gets An Instant Makeover
A law reviled by liberalism ten minutes ago is now Savior to All
I woke this morning to find the Twitter version of a block party, over the news that Donald Trump is being investigated under the Espionage Act. A few examples:
The most mind-blowing of these tweets is by Reich, who should know better. If I were Trump, I absolutely would fundraise off being investigated under the Espionage Act. By pursuing him under this provision, the Justice Department just did Trump the mother of all favors, adding his name to a list of some of the most famous political martyrs in our history.
“Ellsberg, Hale, Winner, Snowden, Assange, and now Trump,” a source close to Julian Assange said this morning. “Incredible.”
Maybe Reich can’t see how this will play politically, or doesn’t care, but anyone thrilled at the prospect of trying to prosecute a former president under the Espionage Act has blacked out the recent history of this law. How much does this Act suck, and shame us all? Let’s count the ways.
The Espionage Act represents the evolution of a series of laws whose purpose is/was to criminalize unauthorized use of sensitive information. I wrote this after the indictment of Assange:
The indictment stressed Assange/Manning were seeking “national defense information” that could be “used to the injury of the United States…” [This] gave off a whiff of Britain’s Official Secrets Acts and America’s Defense Secrets Act of 1911, prohibiting “national defense” information going to “those not entitled to receive it…”
These laws were written in a way that contradicted basic speech protections… There was a way to read the Espionage Act that criminalized what the Columbia Law Review back in 1973 (during the Pentagon Papers controversy) called the “mere retention” of classified material.
If you want a clear portrait of the shift in establishment thinking about this, look at the attitude of the New York Times toward its own role in the history of the Act. In 1981, on the ten year anniversary of the government charging former Daniel Ellsberg with violation of the Espionage Act for taking the “Pentagon Papers” to the Times for publication, the paper’s former attorney in that case, Floyd Abrams, wrote an editorial celebrating the episode. He said it “stiffened the spines of all journalists.”
Thirty years later, the Times ran a very different essay. Written by attorney Gabriel Schoenfeld and entitled “Leaking the Pentagon Papers was an Assault on Democracy,” Schoenfeld argued “Mr. Ellsberg’s legacy is at best mixed,” as he was “still a rogue actor,” who “if the fundamental ground rules of our constitutional democracy are to be respected, deserves a measure of condemnation.”
Katie Halper and I asked Ellsberg about the Act around then:
They’ve learned to wield the Espionage Act, to criminalize whistleblowing… 9/11 comes along, and it’s ‘Constitution be damned.’ Since then we've had total surveillance of everybody, totally unconstitutionally… We’re not a police state, but we could be a police state almost from one day to the next… They know where we are, they know our names, they know from our iPhones if we’re on our way to the grocery store or not… We could be East Germany in weeks, in a month.
The general public not long ago had sympathy for revealers of secrets like Edward Snowden, who disclosed the county had been the subject of an illegal mass surveillance program. They also had growing contempt for a security apparatus that awarded itself virtually unlimited power via pseudo-laws like the PATRIOT Act, the Office of Legal Counsel secret memo supposedly legalizing drone assassination even of Americans, and the Bush-era memo with the amazing Orwellian name, “Humane Treatment of Taliban and al Qaeda Detainees,” that unilaterally exempted the U.S. from Geneva convention prohibitions against torture.
When CIA whistleblower John Kiriakou revealed details about the program, what law was used to charge him? The Espionage Act. What “espionage” did he commit? Did he sell secrets to Russia, China, al-Qaeda? No. He talked to American journalists, including a network TV pair named Matthew Cole and Richard Esposito (remember those names).
Even as the government defined talking to American reporters as espionage, and even as Kiriakou went to jail for two years (the only CIA person ever to be jailed in connection with the torture program), the press backed the concept. “It took my lawyers a year to get CNN and MSNBC to stop calling me CIA-leaker John Kiriakou and to start calling me CIA-whistleblower,” he said.
Barack Obama was one of the most enthusiastic deployers of the Espionage Act, using it at least eight times to bring charges against people not for “espionage,” but for talking to the press. The list included Thomas Drake, Shamai Leibowitz, Stephen Kim, Chelsea Manning, Donald Sachtleben, and Jeffrey Sterling, plus Kiriakou and Snowden. The AP wrote how the Obama administration “obtained the records of 20 Associated Press office phone lines and reporters’ home and cell phones,” while they also:
Secretly dogged Fox News journalist James Rosen, getting his phone records, tracking his arrivals and departures at the State Department through his security-badge use, obtaining a search warrant to see his personal emails…
Establishment attitudes toward “whistleblowing” shifted with Trump’s election. Director Laura Poitras, won an Oscar in 2015 for her documentary about Snowden, CitizenFour. Glenn Greenwald, the reporter with whom Snowden collaborated, won the Pulitzer Prize. Yet when Trump got elected, a new type of “whistleblowing” became common. High-level leaks about issues like the Trump-Russia investigation, seemingly all coming from senior intelligence officials or congressional sources, were an almost weekly occurrence, and none were prosecuted.
One that didn’t go unpunished involved NSA contractor Reality Winner, sentenced to five years under, you guessed it, the Espionage Act. What was different about her case? She wasn’t a former CIA director or a DNI, just an ordinary person. “It’s about low-hanging fruit,” Titus Nichols, Winner’s attorney, told me at the time.
Winner’s case came after a 2017 story in the Intercept entitled, “Top Secret NSA report details Russian hacking effort days before election.” They called it the “most detailed U.S. government account of Russian interference in the election that has yet come to light.”
The affidavit attached to Winner’s indictment charges her with having first “improperly” removed “national defense information,” then having “unlawfully” transmitted it “to an online news outlet.” The lead reporters on the Intercept story, by a remarkable coincidence — like a remarkably remarkable coincidence — were Matthew Cole and Richard Esposito.
A military analyst named Daniel Hale couldn’t take being a drone assassin, disclosed details about his work, and got 45 months under the Espionage Act for his trouble. At sentencing he insisted his real crime was his work for the Air Force. “I am here because I stole something that was never mine to take — precious human life,” he said.
The case against the onetime liberal hero Julian Assange boils down to one half-assed charge of allegedly agreeing to help (but never following through) source Chelsea Manning crack a hash to protect her identity, wrapped around 17 insane charges under the Espionage Act. I wrote at the time his indictment was “the work of attorneys who probably thought the Sedition Act was good law.” A list of the charges:
Count 1: Conspiracy to Receive National Defense Information. Counts 2-4: Obtaining National Defense Information. Counts 5-8: Obtaining National Defense Information. And so on. The indictment is an insane tautology. It charges Assange with conspiracy to obtain secrets for the purpose of obtaining them. It lists the following “offense”:
“To obtain documents, writings, and notes connected with the national defense, for the purpose of obtaining information respecting the national defense…”
The Espionage Act is an embarrassment that would make Marcos or Suharto squeamish, but it’s of course not completely impossible there’s an actual espionage offense in Trump’s case somewhere (just as obviously, no evidence of this has been produced). Julius and Ethel Rosenberg were tried under the Act for giving bomb secrets to the Soviets, as Michael Beschloss and Michael Hayden just helpfully reminded us. However, in modern times, the Espionage Act is more associated with talking to the Times, ABC, The Guardian and The Intercept than with actual spying. The defendants are more often conscience-stricken heroes like Hale than villains.
That’s the problem with this law. “Information relating to the national defense” can essentially be anything the government decides, and they can put you in jail a long time for “mishandling” it, which in Assange’s case included merely having it. Trump or no Trump, if you think that’s okay, you’re an asshole. It’s totally un-American, which is why Robert Reich shouldn’t be surprised if Donald Trump acts proud of being investigated for it. This law is more infamous than he is, and everyone but a handful of blue checks can see it.