BY DANIELLE BRIAN & SCOTT AMEY
Project on Government Oversight (POGO)
This piece originally appeared on Just Security.
The recent
Justice Department indictment of Julian Assange for violating the Espionage Act
has appropriately triggered widespread opposition from those who treasure a
free press. This latest government overreach through the invocation of the
World War I-era law is not the first of its kind in
recent history: It began during the George W. Bush administration and continued
in the Obama administration, when the Justice Department prosecuted
whistleblowers who made disclosures to the press about government wrongdoing.
The Project On Government Oversight (POGO) has expressed concerns about
using the anti-spying law to go after whistleblowers. Previously, we thought
our biggest challenge was to amend the Espionage Act to include a public interest balancing
test that would require the Justice Department to consider
the benefits to the public created by the disclosure of government wrongdoing
when deciding whether to prosecute a leaker of classified information. Now, the
Assange case opens the door for the Justice Department to go after anyone who
receives or publishes information the government claims is related to national
defense, even if the information is unclassified.
The prosecution
of Assange is a shift in Justice Department practices. Prior to Assange, the
most recent Espionage Act case involved Reality Winner, a government
contractor, who removed and transmitted
to The Intercept classified
National Security Agency documents detailing Russian hacking during the 2016
election. Winner pleaded guilty and
received a 63-month sentence.
The Winner case and the
recent charges against drone whistleblower
Daniel Hale are a continuation of the traditional, however
overreaching, efforts to apply the Espionage Act against whistleblowers.
However, in both cases, the government did not prosecute the media outlet or
its individual reporters, which raises questions about the Justice Department’s
shift in policy to prosecute Assange and potentially anyone moving forward who
receives or exposes government information.
Before we get too far down a path where
prosecutions that jeopardize constitutional freedoms are allowed, Congress
should clarify the reach of the Espionage Act, and should shield from that
reach anyone who exposes information that shows illegal or embarrassing
government actions.
Assange has been charged under the Espionage Act with 17 counts of conspiring to receive, obtain, and
disclose classified national defense information. He has also been charged, under a separate laws, with conspiring
to hack a government computer. The charges stem from Assange’s requests to obtain information about U.S. military
and intelligence databases and documents related to Iraq, Afghanistan and the
Guantanamo Bay detention center in Cuba, and from receiving and publishing
information from Private First Class Chelsea (formerly Bradley) Manning.
The original
context of the Espionage Act was to prohibit the unauthorized release of
classified information to foreign entities. Specifically, the law was passed to
prohibit spying for Germany and other adversaries during World War I.
Many people likely think that the law is the law,
providing a black and white set of unchanging rules. But in reality, all laws
are subject to interpretation by those enforcing them and by the courts.
Whether government information is classified is similarly open to
interpretation—and to abuse. Neither the Espionage Act nor the classification
system were meant to be used to hide serious government wrongdoing. But they
can be applied that way, and they certainly have been. That’s what we need to
guard against, and the ability to expose government wrongdoing is what is at
stake now.
The Justice
Department’s case against Assange is predicated on an ambiguity in the Espionage Act that focuses on
“national defense” information, which could include those who receive or
publish classified or unclassified. Previous prosecutions under the anti-spying
law have focused on the person leaking the information, and some of those cases
involved legitimate whistleblowers in
addition to prosecutions of people spying for foreign governments.
Assange’s case
is only the third time the
government has brought Espionage Act charges against someone not affiliated
with the U.S. government. The other notable case involving this law was
ultimately dropped: A decade ago, the government brought espionage charges
against two lobbyists who received and disclosed
classified information to the media and foreign entities.
The government dropped the case because
it would have been too difficult to win—likely because the defendants were
challenging whether the information they disclosed was appropriately classified
and proving their intent was a major obstacle.
“National
defense” information is anything closely held by the government that can be potentially damaging to the United States or
useful to an enemy, as recognized by one federal
court. According to the Supreme Court, the phrase “national
defense” is “a generic concept of
broad connotations, referring to the military and naval
establishments and the related activities of national preparedness.” But this
label is subject to government abuse to hide anything it doesn’t want you to
know—including unclassified information that might conceal illegal or
embarrassing activities or operations.
While the
evidence the Justice Department is using to make its case against Assange was
classified, the vague definition of “national defense” information could mean
that publishing unclassified information also violates the Espionage Act. The
result: prosecuting anyone as a spy for exposing what has been deemed “national
defense” information has a far-reaching and chilling effect, not only on the
press, but also on the public at large.
The Espionage Act’s Ambiguity is Longstanding
The discussion
about the problems posed by the Espionage Act has been going on for nearly 50
years. Harold Edgar and Benno Schmidt, Jr. had warned about serious problems
posed by the law in a 1973 Columbia Law Review article titled “The Espionage Statutes and Publication of Defense Information.”
Edgar and Schmidt acknowledged that it’s a difficult balancing act “to protect
military secrets from spies without promulgating broad prohibitions that would
jeopardize the legitimate efforts of citizens to seek information and express
views concerning national security.” Still, they wrote, “the espionage statutes
are a loaded gun pointed at newspapers and reporters who publish foreign policy
and defense secrets.” More importantly, the authors pointed out, “the
overriding question of interpretation is whether newspapers, their reporters,
their informants, or anyone who investigates, accumulates, informs about, or
retains defense information as a prelude to public speech is covered by the
section.”
Constitutional
expert Stephen Vladeck testified before Congress in 2010 that the Act does not focus solely
on the whistleblower; rather, it
applies in its terms to anyone who knowingly disseminates, distributes, or even retains national defense information without immediately returning the material to the government officer authorized to possess it. In other words, the text of the Act draws no distinction between the leaker, the recipient of the leak, or the 100th person to redistribute, retransmit, or even retain the national defense information that by that point is already in the public domain.
Such open prosecutorial authority,
now, after the Assange indictment, could chill any publication of and public
debate about a substantial amount of national security-related matters.
Essentially, Uncle Sam is saying, “You can trust us. We’re the government.”
The Justice Department’s recent application of the
Espionage Act to Assange for receiving and publishing or distributing
information opens the floodgates to go after anyone as Edgar and Schmidt warned
nearly half a century ago. It criminalizes the actions of anyone—including
journalists, non-profit watchdogs like POGO, or even congressional
investigators—who receives or exposes information that has been labeled with
the vague and rarely, if ever, used phrase “national defense.”
There has always
been a tension between the executive branch and other institutions—both within
government and in civil society—that work to expose government abuses and
wrongdoing. It is well-known that the
government over-classifies information, concealing information
from the public that is embarrassing rather than detrimental to our national
security.
The government has a longstanding practice of threatening would-be truth
tellers with criminal prosecution under various laws in an attempt to silence
them. In many cases, however, the government has had to back down because
attempts to bully the whistleblowers had no grounding in law. But if successful
this time, a Justice Department with an itchy prosecutorial finger can go after
anyone releasing information that exposes government wrongdoing to the public,
classified or not.
What an Assange Precedent Would Mean: A Historical Perspective
Had the precedent of the Justice
Department’s prosecution of Assange existed in the past, there are numerous
cases that could have resulted in a prosecution under the Espionage Act.
Back in 1995,
Helen Frost wanted to get to the bottom of why her husband Robert died after
suffering from a series of mysterious ailments. They had found toxic chemical
compounds in Robert, who had worked for years at the then-super-secret Air
Force base Area 51, and Helen was convinced his employment at Area 51 had
contributed to Robert’s death. After a few unsuccessful lawsuits, Helen reached
out to us to see if we could help get to the bottom of what happened—we did.
We discovered
that Area 51 contractor Lockheed Martin had been using the remoteness of the
site to truck in toxic materials
from its Burbank, California, facility where state law
prohibited them from disposing of the toxic waste. That waste, and all other
waste from Area 51, was burned in open air pits. Everything, even the name of
the facility, was alleged to be classified, and the Air Force used the cloak of
“national security” to shield what would otherwise be a highly illegal action.
Frost and others at Area 51 worked around those burn pits and were exposed to
hazardous smoke that might have contributed to their medical conditions.
As we worked to
help Helen find the truth about the cause of her husband’s death, and that of
many of Robert’s colleagues, the Air Force suddenly swooped in and retroactively classified unclassified
evidence we had collected from sources, including an unclassified Area 51
security manual. The Air Force required POGO
to house all of the documents we had gathered for this
investigation and any other references to Area 51 in Helen’s attorney’s office.
The government even tried to claim a right to look through all of POGO’s files
to ensure compliance.
In an alleged
attempt to protect national security, the Air Force invoked the
state secrets privilege, and the environmental case brought by
Helen and others to prove the illegal burning of hazardous waste at Area 51 was
dismissed. Still, the government had been forced to admit the base existed and
subject it to environmental inspections.
If the current Justice Department
theory it’s using for Assange was applied back then, would Helen, our sources,
or our staff have been prosecuted and imprisoned for espionage because we had
received “national defense” information with the intent to publish?
Several years
after our work exposing environmental crimes at Area 51, we were again faced
with a scenario that might have ended differently had the Justice Department’s
current standards been in place. Security guards at the Indian Point Nuclear
Power Plant in New York came to us to blow the whistle on the utility’s effort
to cheat on a post-9/11 security test.
The guards were all given advance warning of the test and even the parameters
of what would be tested, sufficiently dumbing it down so that VIP observers
would come away with a false sense of security—and leaving Westchester County,
N.Y., residents in harm’s way.
The Nuclear Regulatory Commission attempted to shut down our effort to bring this information to light by threatening us with criminal prosecution on the grounds that our letter to the head of the agency contained “safeguards” information, a pseudo-classification, even though the event had already taken place. Eventually, the agency finally admitted we did not include any classified information in our letter, and we republished it. Under the Justice Department’s current standard, would we, trying to improve the security and safety of the American people, be prosecuted for spying and our staff imprisoned? Would the government’s abuses and neglect go unchecked because we feared receiving and publishing what the government could deem information relating to the “national defense,” despite the information being unclassified?
Could Justice’s Shift Reduce
Congressional Oversight?
Perhaps even more alarming than what might happen to a nonprofit watchdog is what might happen to congressional investigators. We have a couple of clues from past experiences that paint a picture that should raise concern.
In 2004, we sued then-Attorney General John Ashcroft and the Justice Department over its retroactive classification of information that alleged corruption, incompetence and cover-ups in an FBI translation unit, asserting that the retroactive classification was unlawful and unconstitutional. The information had been presented by the FBI during two unclassified briefings held by the Senate Judiciary Committee, and was referenced in letters from Sens. Patrick Leahy (D-Vt.) and Chuck Grassley (R-Iowa) to Justice Department officials. The letters were posted on the senators’ websites, but were removed after the Justice Department retroactively classified the information and instructed the congressional offices to take it down. We already had the letters and wanted to post them on our own website so the public could be informed of the wrongdoing.
Throughout the lawsuit against Ashcroft, we inquired about whether POGO could discuss and disseminate the senators’ letters without fear of prosecution. The Justice Department declined to say it wouldn’t prosecute. As our case reached a critical court date, the Justice Department finally admitted the information it had retroactively classified could be released to the public. But by then the two senators had removed the information from their websites, and their staff were successfully dissuaded from pursuing their investigation into the matter.
The Justice Department’s retroactive classification of
embarrassing information was one way to shut down congressional oversight. More
than a decade later, the CIA took an even more direct and threatening action to
silence Congress.
In 2014, the CIA referred the authors of
the Senate torture report for prosecution under the Computer Fraud and Abuse Act based
on a false claim that they had hacked into an agency computer network to gain
unauthorized access to classified documents. The CIA Office of Inspector
General later found that there was no computer intrusion.
In fact, the agency itself had inadvertently provided access to the documents
in question. Fortunately, the Justice Department declined prosecution, but with
the Espionage Act being used against those who receive so-called national
defense-related information and a president who is now calling to “investigate the investigators,” there is a real danger of
future attempts to chill oversight and exposure of government wrongdoing.
Assange may be
an easy target for prosecution. But anyone who values our democratic system of
free speech, open government and loyal dissent should look at this latest shift
by the Justice Department with genuine fear and feel emboldened to push back.
The Justice Department’s attempt to apply the Espionage Act against those who
receive or publish government information is nothing more than an attempt to
exploit uncertainty in the law and defy the Constitutional protections afforded
by the First Amendment. We will see what happens in the Assange case, but
Congress must amend the Espionage Act to clarify and narrow the definition of
“national defense” information to prevent prosecutions that undermine our
constitutional and democratic systems.
It has become
cliché to quote German pastor Martin Niemöller’s post-war poem, “First they came for the
socialists, and I did not speak out….” But if we as
citizens, including Congress, do not stand up for journalists (both old and new
media), whistleblowers, and any other individual or entity that exposes
government crimes or mistakes, I fear there won’t be anyone left to speak up
against the increasingly voracious efforts to silence criticism.
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