Amend the Espionage Act

Public interest defenses must be allowed

It has been almost 102 years since the Espionage Act was signed into law by Woodrow Wilson.

Initially conceived as a means by which to “punish acts of interference with the foreign relations,” the act has since become a tool of suppression, used to punish whistleblowers who expose governmental wrongdoing and criminality. It is time that the law be amended to accommodate those who share information vital to the public interest.

Daniel Everette Hale, a 31-year-old former intelligence analyst, become the latest target of the weaponized Espionage Act with his recent arrest. Mr. Hale is accused of leaking classified documents between 2013 and 2015 regarding the Obama administration’s drone program.

The leaked information revealed details about the secret legal system used by the Obama administration to create lists of people to kill, including American citizens who had not been formally charged with crimes.

It also revealed that the drone program is dangerously inaccurate, killing the wrong target as often as

90% of the time.

This information is clearly of substantive value to the public. The American people have a right to know who its government is killing and how it makes such decisions. Transparency ensures due process and ethical decision-making.

But Mr. Hale has been charged under the Espionage Act and, as a result, will be denied the right to make a “public interest defense.”

Sadly, Mr. Hale’s situation is not unique. He is the fourth individual to be charged by the Trump administration under the Espionage Act for leaking classified information to journalists. Terry Albury (FBI) and Reality Winner (NSA) are already serving prison sentences for their actions, while Joshua Schulte (CIA) has pleaded not guilty and is awaiting trial. Only the Obama administration prosecuted more whistleblowers under the Espionage Act — a total of eight people.

While many people are, justly or unjustly, angered by the hostile rhetoric that has been directed toward the press in recent years, the prosecutions of whistleblowers under the Espionage Act is a much more nefarious and dangerous abridgment of First Amendment freedoms in this country.

Five years ago, Daniel Ellsberg, who was charged (but not convicted) under the Espionage Act in 1973 for leaking the Pentagon Papers, argued that “the current state of whistleblowing prosecutions under the Espionage Act makes a truly fair trial wholly unavailable to an American who has exposed classified wrongdoing.”

Since that time, the situation has grown more dire as the government becomes more emboldened to punish those who leak information to the press. The Obama administration’s decision to use the Espionage Act to vigorously prosecute whistleblowers has created a dangerous precedent. It must be stopped now.

The press must take up the cause of the brave men and women who leak vital information to them. Whistleblowers like Daniel Everette Hale, Reality Winner, Chelsea Manning, Edward Snowden and more must be defended, just as those who publish that information — a long list that includes The New York Times and Julian Assange — must be defended.

The Supreme Court, meanwhile, has never addressed the constitutionality of using the Espionage Act to punish those who leak information to the American press. Some legal scholars have argued that this application violates the First Amendment. The Court should settle the question.

And Congress could put all this to rest by amending the Espionage Act to allow public interest defenses, a revision that would immediately improve government transparency and benefit the American people.

But whatever happens, this issue can no longer be on the sidelines. The consequences of this debate will have a tremendous impact upon free expression, the freedom to publish vital information and the right to know what our government is doing in our name, good or bad.

We cannot afford to remain silent on this issue. Silence is complicity, and America’s whistleblowers deserve better.